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https://www.courtlistener.com/api/rest/v3/opinions/1596938/ | 638 So.2d 493 (1994)
In the MATTER of the Last WILL and Testament of William Harry FANKBONER, Deceased.
Joseph PALLATIN
v.
Kandy JONES, Executrix of the Estate of William Harry Fankboner, and Ezekiel Jones, a Minor.
No. 91-CA-0221.
Supreme Court of Mississippi.
June 9, 1994.
*494 Michael W. Crosby, Gulfport, for appellant.
Wayne L. Hengen, Hengen & Hengen, W. Eugene Henry, Biloxi, for appellee.
EN BANC.
ON PETITION FOR REHEARING
BANKS, Justice, for the Court:
The petition for rehearing is granted, the original opinion is withdrawn and this opinion substituted therefor.
In this will contest, Joseph Pallatin asks that we overturn the trial court's findings that the daughter of the testator did not unduly influence the testator to change his will and leave her one-half of his monetary assets and personal property to the exclusion of Pallatin and other charitable organizations. We are also asked to determine whether attorney fees and costs paid by him, without prior court approval, should be charged to him, and to revisit the question of sanctions under Rule 11 of the Mississippi Rules of Civil Procedure and the Litigation Accountability Act of 1988. Except as to the issue of unapproved expenditures and sanctions, we affirm.
I.
Joseph Pallatin, filed a petition seeking construction and validity of the last will and testament of his deceased friend, William Harry Fankboner.[1] Joseph sought to have the court find that Fankboner intended his first will to rule and to find that Kandy Jones unduly influenced Fankboner to draft a new will, naming her as one of the primary beneficiaries. The chancery court granted Kandy Jones a partial directed verdict and found that no justiciable issue existed as to Fankboner's mental competency. During the proponent's case in chief, Jones testified that on May 3, 1989, Fankboner wrote her and asked her to forgive him and to always remember that she is his daughter. It was during her testimony that Pallatin became aware of this letter and other notes from Fankboner.
*495 After deliberation, the jury found that Jones did not unduly influence Fankboner to change his will. In the final judgment, the chancellor awarded attorney fees and costs against Pallatin, ordered him to reimburse monies spent from the estate's account, and sanctioned him pursuant to Rule 11 of the Mississippi Rules of Civil Procedures and the "Litigation Accountability Act of 1988." Aggrieved, Joseph Pallatin filed this appeal.
II.
In an action contesting a will, a presumption of undue influence arises where there is a confidential or fiduciary relationship. Mullins v. Ratcliff, 515 So.2d 1183, 1192 (Miss. 1987). Suspicious circumstances, along with the confidential relationship, also give rise to a presumption of undue influence. See Estate of Lawler v. Weston, 451 So.2d 739, 741 (Miss. 1984). In the instant case, Jones, one of the principal beneficiaries, contacted the attorney, Hengen, who represented her in the conservatorship and in the preparation of the testator's will; she actively participated in the procurement and preparation of the testator's will; there was no communication between the attorney, Hengen, and the testator, Fankboner; Jones delivered the will from Hengen to her father; and Jones allegedly stepped into the next room while the will was being executed, and then she returned to the room and took possession of the will once it was signed. However, in her deposition, she testified that she was in the room while Fankboner signed the will. These suspicious circumstances, along with the conceded confidential relationship that Jones stated existed between Jones and Fankboner, gave rise to a presumption of undue influence in the instant case.
In order for Jones to have overcome this presumption of undue influence, the evidence must have shown by clear and convincing evidence that (A) Jones exhibited good faith in the fiduciary relationship with Fankboner; (B) Fankboner acted with knowledge and deliberation when he executed the September 13, 1989 will; and (C) Fankboner exhibited independent consent and action. Murray v. Laird, 446 So.2d 575, 578 (Miss. 1984) as modified in Mullins, 515 So.2d at 1193.
A.
To determine if Jones acted in good faith when she procured the September 13, 1989, will, the identity of the initiating party, who sought the preparation of Fankboner's will, must be determined. In making this determination, it is significant that Fankboner told two totally disinterested witnesses that he wanted to change his will. In Vega v. Estate of Muller, then Presiding Justice Hawkins stated:
In those cases where you admittedly have a confidential relations transfer from a dependent to a dominant party, it seems to me that the ultimate test should be something on the order of the following: Excluding the testimony of the grantee, those acting in the grantee's behalf (such as the attorney), and any others who could have a direct or indirect interest in upholding the transfer (such as grantee's family), is there any other substantial evidence, either from the circumstances, or from a totally disinterested witness from which the court can conclude that the transfer instrument represented the true, untempered, genuine interest of the grantor? If the answer to this question is yes, then it becomes a question of fact whether or not there was undue influence. If the answer is no, then as a matter of law the transfer is voidable.
Vega v. Estate of Muller, 583 So.2d 1259, 1275 (Miss. 1991) (Hawkins, P.J., dissenting).
In the instant case, the two disinterested witnesses were Sergeant Jones and Captain Beverly Tuomala. Sergeant Jones, a medical service specialist and shift leader at Keesler Air Force Base, and one of the subscribers to the September 1989 will, testified that Fankboner talked about changing his will several weeks prior to signing it and that Fankboner went over the will several times before signing it. The second subscribing witness, Captain Beverly Tuomala, testified that Fankboner was a very good communicator and a very adamant individual. She stated that she asked him if that was his will and if he wanted her to sign it, he nodded yes and pointed to the area where she needed to sign.
*496 Secondly, the place of the execution of the will and the persons in whose presence the will was executed are significant. The will was executed at the Keesler Medical Center. The two subscribing witnesses, Captain Tuomala and Sergeant Jones, along with other medical personnel, were present.
The third and fourth factors are the consideration/fee that was paid and the identity of the person who paid the fee. The fee was paid from Fankboner's account, which was at the time a conservatorship account. Jones testified that in her capacity as conservatrix, she paid for the will on Fankboner's behalf.
The fifth and last factor that should be considered to determine the "good faith" of Jones is the secrecy and openness given the execution of the will. The evidence indicated that the execution was quite open and well observed, given the layout of the intensive care unit where Fankboner was being monitored. Jones' contention that her father, Fankboner, initiated the new will is not only supported by her testimony, but by the subscribing witnesses' testimony. In addition, Barbara Champ, a witness for Pallatin, testified that Fankboner told her that he wanted to take care of his family and to exclude the charitable organizations that he listed in his February 3, 1989, will. We find that substantial evidence existed to support a finding that Jones showed good faith.
B.
According to the test delineated in Murray, there are four factors that should be used to determine Fankboner's knowledge and deliberation at the time that the will was executed:
a) his awareness of his total assets and their general value, b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect the prior will or natural distribution, c) whether non-relative beneficiaries would be excluded or included and, d) knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent is the grantor/testator on him and how susceptible to his influence.
Murray, 446 So.2d at 579. Jones stated that Fankboner told her that he wanted her to buy him a trailer to live in because he did not want to live in a nursing home. Jones also stated that Fankboner told her to get his ex-wife (and her mother) to travel from Dallas, Texas, to tend to his needs and to hire a couple to help take care of him. In granting the partial directed verdict, the chancellor in the instant case stated that, "[e]veryone who has testified said that up until the date he passed away, almost and I think up until that day that he was giving directions, that he understood the extent of his holdings and that he was sharp mentally, that he was writing notes, that he was participating in this and that."
Secondly, we have recognized that the "disclosure of intent made prior to execution of an instrument helps dilute the undue influence presumption." Mullins, 515 So.2d at 1194 quoting Murray, 446 So.2d at 578-79. Witness for Pallatin and long-time friend of Fankboner, Barbara Champ, testified that Fankboner told her in August of 1989, prior to the execution of the September 13, 1989, will, that he wanted to change his will to exclude the different charitable organizations and to include his family. She stated that Fankboner told her that he should take care of his own first and the ones that took care of him. As here, in Taylor we explained that there was no undue influence because the evidence showed that "Mr. Taylor was a strong willed person, dominant over his children and was a man who thought things out for himself, made his own decisions and backed them up with action." Taylor v. Welch, 609 So.2d 1225, 1232 (Miss. 1992). "Even up to the point of his death, Mr. Taylor was the boss...." Id. We agree with the chancellor that the evidence indicates that Fankboner was completely aware of his assets and value.
C.
The law requires clear and convincing evidence of independent consent and action by the testator. Murray, 446 So.2d at 578. In the instant case, the evidence is replete *497 with statements that Fankboner acted independently of Jones. Even the contestant, Pallatin, testified that Fankboner appeared to be a rational, sound-of-mind human being who was a gruff and cantankerous person off and on, stubborn, strong-willed, and always independent up until the time he died. Father Joe Romanski, also a witness for Pallatin, testified that Fankboner liked the idea of being independent and in control of his own life; he was a man who tried to hold on to life in his own way and on his own terms; and he was very much a strong-willed person who always wanted to manipulate to direct his future.
Given the facts and the circumstances of this case, the evidence is sufficient to clearly and convincingly show that Jones did not substitute her intent for that of Fankboner. We conclude that this assignment of error is without merit.
III.
Pallatin contends that the chancellor erred when he charged him $8,305.44 for legal fees and other expenses paid in connection with the estate proceedings in Indiana and Arkansas, as well as the legal fees paid to his attorney, Michael W. Crosby. Jones argues that we should follow our reasoning in Clarksdale Hospital v. Wallis that attorneys' fees are the personal obligation of the executor or administrator and compel Pallatin to reimburse the Fankboner estate. Clarksdale Hosp. v. Wallis, 187 Miss. 834, 843, 193 So. 627 (1940). However, in Clarksdale Hospital, we noted that the personal obligations "may be reimbursed from the estate if the Court be of the opinion that the services were necessary and rendered in good faith." Id. See Scott v. Hollingsworth, 487 So.2d 811, 813 (Miss. 1986) ("even though attorneys' fees are the personal obligation of the administrator or executor, they may be paid out of the estate as administration expenses").
In Harper v. Harper, 491 So.2d 189, 200 (Miss. 1986), we stated that the standard for determining attorneys' fees is found in section 91-7-281 of Mississippi Code Annotated which provides in pertinent part that:
in annual and final settlements, the executor, administrator, or guardian shall be entitled to credit for such reasonable sums as he may have paid for the services of an attorney in the management or in behalf of the estate, if the court be of the opinion that the services were proper and rendered in good faith.
Miss. Code Ann. § 91-7-281 (1972). Rule 6.07 of the Uniform Chancery Court Rules provides that "claims arising after the death of a decedent, such as funeral bills, expenditures for monuments, attorney's fees, and the like must be approved by the Chancellor before payment. Otherwise, payment thereof will be at the risk of subsequent disapproval by the chancellor as to the propriety or reasonableness thereof." Miss.Unif. Chan.Ct.R. 6.07 (emphasis added).
In the instant case, Pallatin admitted that he did not get a court order to pay the $8,305.44. Pallatin explained that he proceeded under Indiana law which provides that "[i]f you are a beneficiary or executor in any will, even though there is another will that comes up you still have a duty to go forward, as long as you do so in good faith, to prosecute that will and to have it decided which will is to control. And even if you lose, you still have a right to costs and attorney fees... ." In Mississippi, we have said that an executor or executrix who acts without prior court approval, does so at his or her peril. Harper, 491 So.2d at 200. That is not to say, however, that a fiduciary who makes good faith expenditures is not entitled to reimbursement based solely on the fact that they were made prior to court approval. Id. A fiduciary so acting simply runs the risk that the court will disapprove the expenditures based on a determination that they were not necessary to the administration of the estate or otherwise improper. Id. (Executor surcharged for part, but not all of attorney fees paid without prior authority of the court); see also Miss.Unif.Chan.Ct.R. 6.07.
Here, the items which go to make up the $8,305.44, include matters ordinarily incident to the administration of an estate as well as items incident to the present litigation. In light of our disposition as to sanctions, it is certainly conceivable that expenditures made in connection with some or all of this litigation *498 could be considered reasonable and necessary to the fair administration of the estate. See Burns Ind. Code Ann. § 29-1-10-14 (1993).
As we understand the decision of the chancellor, the court below never reached the issue of the propriety of the expenditures, but instead based its conclusion in this regard on the finding that no estate proceedings should ever have been commenced in Indiana. The court cited no authority for this conclusion and it has not been briefed by the parties. On the face of it, the deceased had personal property in the state of Indiana giving that state a sufficient nexus for the administration of the estate. See Miss. Code Ann. § 91-7-1 (1972); Burns Ind. Code Ann. 29-1-10-1 (1993). The named executor resided in that state and consideration of that fact would indicate that administration there would be the most economical for the estate. There may be other considerations which dictated the chancellor's conclusion.
For the foregoing reasons, we reverse as to this issue and remand for further consideration.
IV.
Pallatin contends that the sanctions that he received under both Mississippi Rules of Civil Procedure 11 and the "Litigation Accountability Act of 1988" are unwarranted since he had a good-faith belief when he initiated the complaint. Under Rule 11(b), sanctions are warranted when the pleading or motion is 1) frivolous or 2) is filed for the purpose of harassment or delay. Miss.R.Civ.P. 11. Under the "Litigation Accountability Act of 1988," the chancellor must have first found that the action was brought without substantial justification, that it was interposed for delay or harassment, or that it unnecessarily expanded the proceedings. Miss. Code Ann. § 11-55-1 (Supp. 1993).
Pallatin contends that at the time of filing, he believed that the case had merit, based upon the information that he had. Pallatin further contends that, objectively viewed, that belief was not unreasonable since he and his attorney had "hope of success." Bean v. Broussard, 587 So.2d 908, 912 (Miss. 1991); Tricon Metals & Services, Inc. v. Topp, 537 So.2d 1331, 1336 (Miss. 1989). At the time that the lawsuit was filed, Pallatin did not know that the May 3, 1989, letter from Fankboner, Jones' father, existed. In that letter, Fankboner asked Jones to forgive him and to always remember that she is his daughter. As delineated in the facts, Pallatin became aware of this letter and other notes from Fankboner on the day of trial. We have stated that a "continuing duty of inquiry" is not part of Rule 11 test. Nationwide Mut. Ins. Co. v. Evans, 553 So.2d 1117, 1120 (Miss. 1989). "Filing ... triggers the possibility of sanctions." Id. quoting Miss.R.Civ.Pro. 11. Viewing a case as weak is not enough to say that it "was either brought to harass or it was without merit." Brown v. Hartford Ins. Co., 606 So.2d 122, 127 (Miss. 1992).
Pallatin contends that this was not a frivolous case and that it was not brought to harass the proponent. The presumption of undue influence, along with the suspicious circumstances surrounding the execution of the will, gave the contestant some "hope of success". Bean, 587 So.2d at 912. Because Jones maintained a confidential relationship with Fankboner, the burden was placed on Jones to prove by clear and convincing evidence that she did not exert undue influence or abuse the relationship. The record reflects an allusion to a settlement offer which Jones deemed frivolous, but no findings were made as to the timing or significance of this offer with respect to the chances of success at the time that the complaint was filed or at any other time.
Because substantial justification existed to support the filing of the complaint, and because there is no evidence that the claim was unnecessarily expanded or brought to delay or harass, we reverse and render the judgment as to sanctions.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART, REVERSED AND RENDERED, IN PART.
HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and SULLIVAN, PITTMAN, McRAE, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.
NOTES
[1] Fankboner executed three wills. On February 3, 1989, Fankboner executed his first Last Will and Testament in South Bend, Indiana. In this will, Fankboner bequeathed five dollars ($5.00) to his daughter, the appellee in this case, Kandy Jones, and five dollars ($5.00) to his son, Mark Fankboner. He left his grandson, Kandy Jones' son, Ezekiel Jones, twenty-five thousand dollars ($25,000). The appellant, Pallatin, was named as the personal representative and bequeathed two thousand five hundred dollars ($2,500). There were ten other bequests to friends and charitable organization ranging from one thousand dollars ($1,000) to fifteen thousand dollars ($15,000).
On August 9, 1989, Fankboner allegedly signed, while in Biloxi, Mississippi, a second will in which he divided his estate among his son, Mark, his daughter, Kandy, and friend, Barbara Champ. (This will is not at issue since the evidence was undisputed that Fankboner was delusional at the time that he signed this document).
On September 13, 1989, Fankboner executed his third will also in Biloxi, Mississippi. In this will, he bequeathed one-half of his estate to Kandy and one-half to his grandson. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596946/ | 148 Mich. App. 151 (1986)
384 N.W.2d 112
KOWALESKY
v.
KOWALESKY
Docket No. 79322.
Michigan Court of Appeals.
Decided January 6, 1986.
Diane D. St. Claire, for plaintiff.
Prather & Harrington, (by James J. Harrington), for defendant on appeal.
Before: SHEPHERD, P.J., and R.B. BURNS and R.L. TAHVONEN,[*] JJ.
R.B. BURNS, J.
Defendant appeals from a 1984 judgment of divorce. She challenges the property valuation, child support award, and child custody provisions of the judgment. We reverse in part.
The parties were married in 1971 while plaintiff was a senior in dental school and defendant was in her last year of a dental hygiene program. Both parties graduated in April, 1972, and plaintiff soon thereafter set up a dental practice in Saginaw. Except for pregnancy leave, defendant worked part-time in plaintiff's office for most of the marriage.
Plaintiff testified that he and defendant had *154 numerous disagreements during the course of their marriage, primarily over the management of the dental practice, day-to-day activities, and finances. Prior to plaintiff's filing of the divorce complaint on November 27, 1981, defendant spent two or three weeks in Canada taking care of her parents' dog and, soon after her return, she left for Florida to visit her sister. During her absence, plaintiff discovered that defendant had withdrawn a large sum of money from their savings account and that property deeds, jewelry, and gold coins and bullion were missing from their safety deposit boxes. He also discovered that a bag of silver coins was missing from the marital home.
Defendant admits to taking some of the parties's gold holdings, but contends that she did so only with plaintiff's permission. She also admitted to selling the jewelry. However she denies taking the bag of silver.
The trial court valued the marital estate at $425,332.97, awarding half to each party in accordance with their stipulation. Defendant raises several claims of error, which we will address seriatim.
I
Valuation of plaintiff's professional practice.
Defendant contends that the trial court's finding on the valuation of plaintiff's dental practice was erroneous as it was based upon a "distress sale" or "going out of business" basis. She invites this Court to adopt the valuation method contained in Revenue Ruling 59-60 and apply that method to property divisions in divorce actions. Rev Rul 59-60, IRB, CB 1959-1, 237. We decline that invitation.
*155 Revenue Ruling 59-60 was promulgated to address the problem of valuing the stock of closely held corporations for estate and gift tax purposes. Defendant urges this Court to be the first to apply the ruling to the valuation of professional corporations in divorce actions.
Michigan courts have been silent on the issue of the proper method of valuing professional practices. However, in Handricks v Handricks, 353 Mich 527; 91 NW2d 912 (1958), the Supreme Court affirmed a trial court's valuation of a tavern business based upon the expert testimony of a real estate broker.
The division of marital assets is within the discretion of the trial court and we will not reverse unless we are convinced that we would have reached another result had we occupied the position of the trial court. Parrish v Parrish, 138 Mich App 546; 361 NW2d 366 (1984). However, the valuation of an asset by the trial court is a finding of fact that we will reverse only if it is found to be clearly erroneous. MCR 2.613(C). See, also, Cantor v Cantor, 87 Mich App 485, 495; 274 NW2d 825 (1978) (decided under former rule GCR 1963, 517.1). Since the parties stipulated that the assets were to be divided evenly, our review is limited to determining if the trial court's valuation of the practice was clearly erroneous. Further, we will conclude that a ruling is clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm conviction that a mistake has been committed. Tuttle v Dep't of State Highways, 397 Mich 44; 243 NW2d 244 (1976).
We believe that neither Revenue Ruling 59-60 nor any other single method should uniformly be applied in valuing a professional practice. Rather, this Court will review the method applied by the trial court, and its application of that method, to *156 determine if the trial court's valuation was clearly erroneous.[1]
In the case at bar, the trial court determined the value of plaintiff's practice, including equipment and good will but excluding accounts receivable, to be $110,000 plus an additional $30,487.42 representing the equity in the dental office building.[2] We do not believe this valuation to be unreasonable. Plaintiff's expert, Roberto Lopez, valued the practice at $109,019.29, including equipment, supplies, furniture, good will, and accounts receivable. Lopez is actively involved in the sale of dental practices and the valuation of those practices. Defendant's expert, a certified public accountant who has a number of dentists as clients, did not have similar valuation experience.
Although the trial court's valuation of the practice seems to favor plaintiff, it was within the range of values testified to by the various experts. Given the credentials of plaintiff's expert, we cannot *157 conclude that the trial court's finding in valuing the dental practice, except as discussed below, was clearly erroneous.
We do believe, however, that there are three areas in which the trial court erred in valuing the dental practice. First, the trial court failed to value the accounts receivable, stating that they were used to pay the debts and expenses of the corporation as well as plaintiff's salary. However, it is not clear whether the trial judge was merely using the receivables to offset existing debts of the corporation, including accrued salary, or whether the trial court was also considering future expenses and salary.
Generally speaking, the value of a business is its assets, less its liabilities. Since plaintiff was entitled to receive the accounts receivable, they represented an asset of the corporation. Similarly, any debts, including unpaid salary expenses, reduced the value of the corporation. In valuing the dental practice, the trial court should have determined the value of all assets, tangible and intangible, including good will and accounts receivable, and subtracted from that the amount of the outstanding liabilities of the corporation as of the date of valuation.
The second area in which the trial court erred was in considering the reduction Mr. Lopez opined of 40% of the value of the good will of the practice on the basis of a distress sale. There is nothing in the record to support the assumption that the plaintiff would discontinue his practice or that the staff would not stay on. Since it appears that plaintiff would continue the dental practice, the valuation of the practice should be the value of the practice to plaintiff as a going concern.
The third area in which the trial court erred was in considering the fact that plaintiff paid *158 temporary alimony and child support during the pendency of the action. This fact is not relevant to the value of the dental practice. Similarly, that some of the amounts collected from the accounts receivable went to pay the temporary support obligations is also irrelevant. Although support obligations may be relevant in dividing assets, a subject upon which we offer no opinion, the value of an asset is not directly affected by the fact that a party is under a support obligation. The parties stipulated that the assets were to be divided evenly. Thus, the trial court was limited to valuing the dental practice. The fact that plaintiff had to pay temporary support was not relevant to any matter before the trial court in valuing the marital assets.
Since the testimony of the witnesses differed widely as to the value of the accounts receivable,[3] we decline to make a valuation ourselves. Rather, we remand the case to the trial court for redetermination of the value of the plaintiff's professional corporation and a modification of the property division accordingly.
II
Whether the trial court improperly exercised jurisdiction over the Clifford trust.
During the course of the marriage, a Clifford trust[4] was established for the benefit of the children. *159 According to plaintiff's testimony at trial, the children also had the reversionary interest in the trust. Defendant was the trustee of the trust and, following the filing of the divorce action, improperly removed $21,000 from the trust. The trial court ordered defendant to repay the trust from her share of the property settlement.[5] Defendant argues that the circuit court had no authority over the trust. We agree.
Jurisdiction over the internal affairs of trusts is vested by statute in the probate court. MCL 700.805; MSA 27.5805 provides in part as follows:
"(1) The probate court has exclusive jurisdiction of proceedings initiated by interested parties concerning the internal affairs of all trusts. Proceedings which may be maintained under this section are those concerning the administration and distribution of a trust, the declaration of rights, and the determination of other matters involving trustees and beneficiaries of a trust. These include proceedings to:
"(a) Appoint or remove a trustee.
"(b) Review trustees' fees and to review and settle interim or final accounts.
"(c) Ascertain beneficiaries, to determine any question arising in the administration or distribution of any *160 trust including questions of construction of trust instruments, to instruct trustees, and to determine the existence or nonexistence of any immunity, power, privilege, duty, or right.
"(d) Release registration of a trust."
Exclusive jurisdiction over trusts by the probate court is also provided for in MCL 700.21; MSA 27.5021. See In re Americana Foundation, 145 Mich App 735; 378 NW2d 586 (1985).
Based upon this statutory authority, we find that the trial court lacked authority to exercise jurisdiction over the Clifford trust. Plaintiff, as grantor or on behalf of the beneficiary children, should have filed a petition in the probate court. We note, however, that a different result might have been reached had the reversionary interest been in one or both of the parties. Had such been the case, then the reversionary interest would have been a marital asset which the trial court could have allocated to one or both of the parties and, perhaps, taken action to protect. However, we leave for a future case the determination of the authority of a circuit judge to protect the reversionary interest of a trust in a divorce action.
Before concluding this issue, we note that the case relied upon by plaintiff, McLain v McLain, 108 Mich App 166; 310 NW2d 316 (1981), is not applicable to the case at bar. McLain involved the question of whether a bank account was a valid trust or a marital asset. We remanded the case to the trial court to determine if it was a marital asset and, if so, to divide it accordingly. Since it is not disputed that there exists a valid Clifford trust in the case at bar, we are not faced with the question addressed in McLain.
For the reasons stated above, that portion of the divorce judgment relating to the Clifford trust is vacated.
*161 III
Forced sale of the gold, valuation of jewelry, and allocation of silver assets.
A. The gold.
The trial court found that the parties owned 163 ounces of gold and awarded that gold to defendant. However, the trial court ordered the gold to be sold unless defendant was able to assure the trial court that she would be able to pay her attorney fees and support herself without a sale of the gold.[6] We find that the trial court abused its discretion in so ordering.
Defendant is an adult in her early thirties and there is no evidence to suggest that she is not competent to handle her own business affairs. We do not believe that the trial court's order is justified even in view of defendant's prejudgment activities in secreting away assets and in invading the Clifford trust corpus. None of defendant's creditors petitioned the circuit court to protect their interests by freezing defendant's assets. Moreover, the circuit court went beyond the mere freezing of *162 assets to protect creditors and ordered the gold sold, even though no creditor had petitioned for a collection on a debt owed by defendant.
The selling of the gold constituted an investment decision which would incur costs on disposal, including selling costs and the triggering of a taxable event, as well as being an investment decision as to the future price of gold.[7] Rather than allowing defendant to make that investment decision, the trial court attempted to make it on her behalf.
Therefore, we conclude that it was an abuse of discretion for the trial court to order the sale of the gold. Although there may be circumstances where a trial court is justified in ordering the sale of a marital asset, such as where both parties, or neither, wish possession of an asset and it would be inequitable to give the asset to either, this is not the case here. Plaintiff does not argue that the gold should have been awarded to him. The trial court's decision to order the sale of the gold is reversed and that portion of the judgment requiring the sale of the gold is vacated.
B. Valuation of the jewelry.
The trial court awarded defendant certain items of her jewelry, fixing the value at $7,500. in actuality, defendant had sold that jewelry prior to trial for $1,020. Defendant contends that the trial court erred in its valuation, which had the effect of penalizing defendant for the sale.
We agree with the trial court's disposition of this issue. Defendant sold the jewelry to a private individual at a price apparently based upon scrap metal prices. The sale violated an injunction against the disposal of property. The value set by *163 the trial court was slightly less than the minimum value established by plaintiff's expert. The estimates of the replacement value of the jewelry ranged between $10,000 and $13,735.
The trial court fixed the value of the jewelry based upon expert testimony. We believe that the fact that defendant sold the jewelry at scrap metal prices is irrelevant. The disposal was improper and reflected poor financial judgment. The trial court's resolution of the issue placed defendant in the same position she would have been in had she not violated the injunction. We believe that the trial court properly exercised its discretion in placing the financial burden of violating the injunction upon defendant.
That portion of the judgment relating to the jewelry is affirmed.
C. The silver assets.
The trial court awarded $900 worth of silver to plaintiff and found that there was an additional $8,190 worth of silver, but that the silver was "lost". The court did not allocate the "lost" silver to either party, but ruled that it was to be divided evenly if ever found.
Since the finding that the silver was lost is a finding of fact, we will review that ruling to determine if it is clearly erroneous. We find that it is not.
Although both parties acknowledge the existence of the sliver, each denies possession and argues that the other removed it from the marital home. Although defendant's activities in secreting away marital assets and in invading the Clifford trust outshadow any such conduct by plaintiff, and suggest that defendant took possession of the silver, we are not quite ready to make that finding. In view of the fact there is no concrete evidence *164 linking either party to the silver and any such determination would have to be reached based upon the circumstantial evidence of the parties' conduct, we cannot conclude that the trial court's determination is clearly erroneous.
Further, we note that the trial court did not fail to divide the silver assets. It was stipulated that all assets were to be divided evenly and the trial court ordered the silver to be split if ever found. The trial court merely declined to award sole possession to either party or determine which party possessed the silver. We believe the trial court's solution is adequate until such time as one party can establish the whereabouts of the silver. At such time, that party may, of course, petition the trial court for enforcement of the judgment.
We have considered defendant's other claims of error and find them to be without merit.
The decision of the trial court is reversed in part and the case is remanded to the trial court for futher proceedings consistent with this opinion. We do not retain jurisdiction. No costs, neither party having prevailed in full.
ADDENDUM
Subsequent to oral argument in this case, the trial court entered an order modifying the custody provisions of the divorce judgment and granted sole custody to defendant. Since this issue is not properly before this Court, we render no opinion on that order.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Our discussion should not be read as prohibiting trial courts from using Revenue Ruling 59-60 in their decisions if they find it helpful or as prohibiting parties from using it in presenting their cases. Since the trial court in the case at bar did not apply the ruling, we need not decide if doing so is erroneous. We only conclude that use thereof is not required.
[2] The trial court explained its evaluation on the dental practice as follows:
"This Court finds that the vaulation of Plaintiff's dental practice, known as Richard Kowalesky, D.D.S., P.C., including goodwill but excluding accounts receivable, is $110,000.00. This valuation has been arrived at by weighing the evidence and credibility of the witnesses, and attempting to strike a fair and equitable balance between the valuations of $109,019.29 and $279,500.00 given by plaintiff's and defendant's witnesses respectively. These valuations included a goodwill value by Plaintiff of $45,540.00, and a $122,000.00 value by Defendant; and a value of accounts receivable by Plaintiff of $31,541.26 and an accounts receivable value by Defendant of $83,500.00. This Court has not included accounts receivable in its valuation of the dental practice, because the receivable have been used to pay the debts and expenses of the corporation as well as Plaintiff's salary, and the Defendant has received temporary alimony and child support from the Plaintiff during the past two years while this action was pending."
[3] The valuations ranged from $31,541.26 to $83,500.
[4] We note that in a classic Clifford trust the reversionary interest is retained by the grantor. Helvering v Clifford, 309 US 331; 60 S Ct 554; 84 L Ed 788 (1940). In the case at bar, the reversionary interest belongs to the children. Thus, the term "Clifford trust" might not be entirely accurate. However, since the parties and the trial court refer to it as a Clifford trust, so shall we. The name placed on the trust is not important. Rather, as discussed below, the importance lies in the fact that it is a trust and the children possess the reversionary interest.
[5] The divorce judgment has the following provisions related to the Clifford trust:
"CHILDREN'S CLIFFORD TRUST
"IT IS FURTHER ORDERED AND ADJUDGED that pursuant to stipulation and agreement between the parties, the Clifford Trust shall be awarded in its entirety to the minor children of the parties, including but not limited to, all current monies, future income, assets, debentures, notes, and reimbursement by the parties as set forth in the above paragraph. Neither party shall have any further claim or interest in the Clifford Trust.
"IT IS FURTHER ORDERED AND ADJUDGED that all present and future monies in the Clifford Trust shall be deposited in either savings accounts or certificates of deposit, with the parties agreeing upon where said money shall be deposited; and further wherever said monies are deposited, the signatures of both parties, Plaintiff and Defendant, shall be required for the withdrawal of any of those monies."
[6] The judgment provided as follows:
"IT IS FURTHER ORDERED AND ADJUDGED that the Defendant mother shall be awarded all of the gold owned by the parties which the Court finds to be in the amount of 163 ounces. The Defendant shall be given the option to sell or retain said gold and must make the decision within thirty (30) days. If the Defendant wishes to retain said gold and not sell it, the value of the gold is placed at the sum of Sixty-Three Thousand Seven Hundred Forty-Nine and 30/100 Dollars ($63,749.30). If the Defendant does not wish to sell the gold, she must show to the Court that by not selling the gold she has sufficient monies between the property settlement, child support and alimony to pay all of her attorney fees, support herself and the two children.
"If the Defendant decides to sell the gold, the proceeds of the sale shall be placed in the Trust account of the Defendant's attorney to be held in trust until the terms of the property settlement are carried out. Any increase or decrease in the value of the gold from the price set of Sixty-Three Thousand Seven Hundred Forty-Nine and 30/100 Dollars ($63,749.30) shall be shared equally by the parties."
[7] Plaintiff argues on appeal that these costs and taxes would be minimal. We do not believe that the amount of the costs and taxes is relevant. Defendant should make the initial determination of whether to incur these costs in satisfying her debts and expenses. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596957/ | 28 So.3d 807 (2009)
Nellie M. DUNN
v.
Sharon McCall WILLIAMS and Anthony G. Williams.
2080190.
Court of Civil Appeals of Alabama.
July 24, 2009.
*808 Mitch Damsky, Birmingham, for appellant.
Charles N. Reese of Reese & Reese Attorneys, Daleville, for appellees.
PER CURIAM.
Nellie M. Dunn appeals from a summary judgment entered by the Geneva Circuit Court in favor of Sharon McCall Williams and Anthony G. Williams on her claims arising out of a conveyance of real property. We reverse the trial court's judgment as to Dunn's claim seeking a declaration that her conveyance was voidable pursuant to Ala.Code 1975, § 8-9-12, and as to Dunn's claim of conversion. We affirm as to all other claims.
*809 Background
On August 28, 2007, Dunn sued Sharon and Anthony (Dunn's daughter and son-in-law) and various fictitiously named defendants. In her complaint, Dunn alleged that she had owned a tract of real property comprising approximately 120 acres of land and containing a dwelling (hereinafter referred to as "the property") since 1962. Dunn alleged that on May 16, 2007, while she was gravely ill, she had conveyed the property to Sharon and Anthony by warranty deed. According to Dunn's complaint, after she had recovered from her illness, Sharon and Anthony informed Dunn she would no longer be allowed to live on the property. Dunn alleged that Sharon and Anthony had thereafter driven her to a local police station, where Dunn was dropped off with only a few of her personal items.
In her complaint, Dunn asserted that the conveyance should be invalidated because it had been obtained through undue influence and coercion (count one) and because it had not been supported by material consideration (count two). Dunn also sought to quiet title to the property in herself (count three). Dunn also asserted that Sharon and Anthony had converted items of her personal property to their own use (count four) and had conspired to wrongfully take possession of the property (count five). Finally, Dunn sought a temporary restraining order to enjoin Sharon and Anthony from selling, destroying, or otherwise disposing of any real and personal property made the basis of the action. As an exhibit to her complaint, Dunn attached a copy of the deed she had executed; that deed recited that the conveyance had been supported by a payment of "$10.00 and other valuable consideration." Dunn also filed a notice of lis pendens against the property based on the allegations stated in her complaint.
In October 2007, Sharon and Anthony answered the complaint, denying all wrongdoing and averring that, on an unidentified date, they had offered Dunn the opportunity to retrieve her personal property by sending movers to the property but that Dunn had failed to act on their offer.[1] In June 2008, Sharon and Anthony moved for a summary judgment. In support of their summary-judgment motion, they submitted an affidavit from Henry F. Lee III, the attorney who had overseen the closing of a loan transaction involving Sharon, Anthony, Dunn, and the Samson Banking Company; an affidavit from Stephanie W. Chesteen, the notary public who had witnessed Dunn's signature on the pertinent deed; affidavits from Sharon and Anthony; and transcribed excerpts from Dunn's deposition. On August 13, 2008, Dunn filed a response in opposition to the summary-judgment motion in which she contended that Ala.Code 1975, § 8-9-12, amounted to authority for deeming the conveyance invalid. In support of her response to the summary-judgment motion, Dunn submitted, among other things, copies of opinions interpreting and applying § 8-9-12 and excerpts from Anthony's and Sharon's deposition transcripts that indicated that, in consideration for Dunn's conveyance of the property to Anthony and Sharon, they had promised Dunn that she could live on the property for as long as she wished and that Dunn would have "no bills" as long as she lived there.[2]
*810 After hearing arguments from counsel, the trial court granted the summary-judgment motion filed by Sharon and Anthony as to the claims asserted in Dunn's complaint. In addition, the trial court specifically stated:
"The court further finds that [Dunn] has no cause of action under § 8-9-12 ... based upon the evidence set forth in her `Notice in Opposition to Motion for Summary Judgment.' In making this decision, the court relies on the case of Tolver v. Tolver, 585 So.2d 1 (Ala.1991)."
Sharon and Anthony filed a motion to alter or amend the judgment to seek a declaration that the lis pendens that had been filed against the property simultaneously with the complaint had been satisfied. The trial court granted that motion. Dunn timely appealed; the Alabama Supreme Court transferred the appeal to this court pursuant to Ala.Code 1975, § 12-2-7.
Standard of Review
"`"We review the trial court's grant or denial of a summary judgment motion de novo." Smith v. State Farm Mut. Auto. Ins. Co., 952 So.2d 342, 346 (Ala. 2006) (citing Bockman v. WCH, L.L.C., 943 So.2d 789 (Ala.2006)). A summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. If the movant meets this initial burden, the burden then shifts to the nonmovant to present "substantial evidence" of a genuine issue of material fact. Ex parte Alfa Mut. Gen. Ins. Co., 742 So.2d 182, 184 (Ala.1999). Substantial 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 Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989); see also § 12-21-12(d), Ala.Code 1975. In determining whether a genuine issue of material fact exists, this Court views the evidence in the light most favorable to the nonmovant and resolves all reasonable doubts in favor of the nonmovant. Jones v. BP Oil Co., 632 So.2d 435, 436 (Ala. 1993)."'"
Harris v. Health Care Auth., 6 So.3d 468, 472 (Ala.2008) (quoting McCutchen Co. v. Media Gen., Inc., 988 So.2d 998, 1001 (Ala. 2008)).
Analysis
On appeal, Dunn has not specifically challenged the judgment entered in favor of Sharon and Anthony on her conspiracy claim, her request to quiet title, or her request for a temporary restraining order. We, therefore, need not consider any error as to those claims. See Boshell v. Keith, 418 So.2d 89, 92 (Ala.1982) ("When an appellant fails to argue an issue in its brief, that issue is waived."); see also Lyons v. Vaughan Reg'l Med. Ctr., LLC, 23 So.3d 23 (Ala.2009) (accord). Dunn has, however, specifically challenged the trial court's judgment as it relates to her claim seeking to void her conveyance and her claim of conversion. We, therefore, confine our analysis to the correctness of the judgment as to those claims.
As a preliminary matter, we first address Sharon and Anthony's assertion that, because § 8-9-12 was not specifically pleaded in her complaint, Dunn may not now rely on that statute in challenging the trial court's summary judgment. We disagree. *811 "Under Rule 8, Ala. R. Civ. P., a complaint is sufficient if it puts the defendant on notice of the claims asserted against him or her." Martin v. Martin, 998 So.2d 1081, 1084 (Ala.Civ.App.2008). Although Dunn did not cite or expressly plead the applicability of § 8-9-12 in her complaint, or specifically allege that Sharon and Anthony had promised to allow her to live on the property after the conveyance, she alleged that the deed was void because she had "received no material consideration from Defendants for the conveyance of said property." In her response in opposition to the summary-judgment motion, Dunn argued that a promise to allow her to live on the property and to support her was a material part of the consideration for the conveyance but that the alleged promise had not been honored. Moreover, as our supreme court noted in Ex parte Alexander, 806 So.2d 1222, 1225 (Ala.2001), the enactment of § 8-9-12 "has superseded other theories for voiding ... a conveyance to redress the grantor's dissatisfaction with the consideration" when a promise of lifetime support is involved. Thus, count two of Dunn's complaint, which asserted a failure of material consideration for the conveyance, constituted a short and plain statement of entitlement to relief under § 8-9-12. See Martin, 998 So.2d at 1084 (plaintiff, who clarified on the day of trial that her cause of action to invalidate a deed for lack of consideration was asserted under § 8-9-12, Ala.Code 1975, had provided adequate notice, pursuant to Rule 8, Ala. R. Civ. P., of her claim to defendants).
Additionally, Dunn clearly stated in her response, filed in opposition to Sharon and Anthony's summary-judgment motion, that she was proceeding under § 8-9-12, Ala. Code 1975, thereby placing Sharon and Anthony on notice of such claim before the summary-judgment hearing. See Boackle v. Jefferson Mem'l Co., 408 So.2d 518, 520 (Ala.Civ.App.1981) (noting that issues framed by formal pleadings are not controlling on a motion for summary judgment and that a court considering whether to grant such a motion is to consider the issues presented by the parties in their supporting and opposing submissions).[3] Sharon and Anthony did not move to strike or otherwise oppose Dunn's allegations. Moreover, Dunn submitted evidence to the trial court in support of her § 8-9-12 claim, and Sharon and Anthony did not move to strike that evidence.
As established in the trial court's summary-judgment order, the trial court considered Dunn's § 8-9-12 claim and her supporting evidence at the summary-judgment hearing, along with Dunn's other claims. We find no indication in the record that Sharon and Anthony ever objected to the trial court's consideration of that claim or Dunn's evidence in support of that claim at that time. Because Dunn's § 8-9-12 theory is arguably subsumed under count two of her complaint, because the trial court properly deemed the § 8-9-12 theory as being before the court for decision, and because Sharon and Anthony failed to challenge that determination, we proceed to consider the merits of Dunn's challenge to the summary judgment in light of § 8-9-12.
Section 8-9-12 provides:
"Any conveyance of realty wherein a material part of the consideration is the agreement of the grantee to support the grantor during life is void at the option *812 of the grantor, except as to bona fide purchasers for value, lienees, mortgagees without notice, if, during the life of the grantor, he takes proceedings to annul such conveyance."
The deed at issue in this case provided that the conveyance was made in consideration of $10 "and other valuable consideration." The deed did not recite that Sharon and Anthony were to provide support and care for Dunn as consideration for the conveyance. "However, parol evidence is admissible to show that the actual consideration for the execution of the deed was the promise on the part of the grantee to support and care for the grantor during his or her life." Martin, 998 So.2d at 1084 (citing Kirkpatrick v. Jones, 585 So.2d 828, 830 (Ala.1991)). As recognized in Kirkpatrick, such parol evidence is deemed admissible "where [it] will not contradict a written statement purporting to set the full consideration." 585 So.2d at 830.
In opposing Sharon and Anthony's summary-judgment motion, Dunn submitted excerpts of Anthony's and Sharon's deposition transcripts. During his deposition, Anthony testified:
"Q: Was there a discussion about a purchase price?
"A: I told her we would pay off the mortgage and she could stay there and she would have no bills, that I would pay the power bill.
"....
"Q: And you had agreed to take care of her as long as she was alive
"A: As long as she wanted to live there.
"Q: and pay all of the bills?
"A: And pay the bills. Yes, sir."
Further, Sharon testified at her deposition:
"Q: Now, what were the arrangements between you and your mother with regard to her living after you bought this property?
"A: We told her that she could live there forever. We would take care of the bills and she could stay there as long as she needed to.
"Q: As part of her giving you this property?
"A: That wasn't the stipulation but that was our agreement."
As evidenced by the deposition excerpts, Sharon and Anthony admitted that they had represented to Dunn that, in exchange for her conveyance of the property to them, she could live on the property for as long as she wanted and that they would take care of her bills. That evidence brings Dunn's claim within § 8-9-12. See Martin, 998 So.2d at 1085 ("[A] grantor who conveys his or her property in exchange for the grantee's promise that he or she will support the grantor for life may annul the conveyance").
Sharon and Anthony argue that the parol evidence offered by Dunn is inadmissible because it contradicts the consideration recited in the deed. We disagree. In fact, the language included in the deed expressly acknowledged that "other valuable consideration" was contemplated in exchange for the conveyance of the property in addition to the $10 specifically stated. Thus, because the parol evidence offered by Dunn did not contradict the consideration recited in the deed, that parol evidence was admissible in support of her theory that the conveyance should be declared void under § 8-9-12. Martin, 998 So.2d at 1085 (recognizing that parol evidence not inconsistent with the deed was properly considered at trial to set aside a conveyance pursuant to § 8-9-12, in order to determine grantor's purpose and motivation *813 in conveying her property); Kirkpatrick, 585 So.2d at 830 (accord).
Sharon and Anthony also argue that any parol evidence in the record indicating that an agreement to provide support was a material part of the consideration for the conveyance did not rise to the level of "clear, satisfactory, and convincing" evidence. See Entrekin v. Entrekin, 388 So.2d 931, 932 (Ala.1980) (reversing a judgment entered after an ore tenus proceeding when there was "no direct evidence of a support agreement"). Again, we must disagree. Dunn submitted testimony from Sharon and Anthony in which they admitted that, in addition to having paid off Dunn's mortgage indebtedness, they had offered to allow Dunn to live on the property for as long as she wanted and to pay her bills in exchange for the conveyance. Based upon that testimony, it cannot be said that there is no genuine issue of material fact concerning whether a promise to allow Dunn to live on the property was made and that that promise formed part of the inducement for Dunn's conveyance of the property. As a result, we conclude that Dunn's evidence rises to the level necessary to sustain her § 8-9-12 claim at the summary-judgment level. That section is in place "to protect `the aged, weak, or afflicted [who] had improvidently executed conveyances upon the promise of support.'" Stewart v. Dickerson, 455 So.2d 809, 810 (Ala.1984) (quoting Heartsill v. Thompson, 245 Ala. 215, 218, 16 So.2d 507, 509 (1944)). Whether any promise of lifetime support made to Dunn by Sharon and Anthony was material to Dunn's conveyance of the property is to be determined by the trier of fact.
We stress that this appeal is before us from a summary judgment. Dunn's burden was only to rebut the showing made by Sharon and Anthony, i.e., to establish that genuine issues of material fact actually existed such that Sharon and Anthony were not entitled to judgment as a matter of law. See Rule 56, Ala. R. Civ. P. We conclude that Dunn met that burden as to her theory invoking § 8-9-12, and we reverse the summary judgment entered in favor of Sharon and Anthony on count two.
Dunn's Conversion Claim
Dunn also challenges the summary judgment as to her claim of conversion.
"To constitute conversion, there must be a wrongful taking or a wrongful detention or interference, or an illegal assumption of ownership, or an illegal use or misuse of another's property.... Conversion requires `a wrongful exercise of dominion over property in exclusion or defiance of a plaintiff's rights, where said plaintiff has ... the immediate right to possession.' [Empiregas, Inc. of Gadsden] v. Geary, 431 So.2d 1258, 1260 (Ala.1983)."
Covington v. Exxon Co., U.S.A., 551 So.2d 935, 938 (Ala.1989).
In her complaint, Dunn alleged that, after she had executed the deed conveying the property to Sharon and Anthony, Sharon and Anthony had forced Dunn to leave the property without her personal property, including a Honda Civic automobile, jewelry, guns, clothing, furniture for a three-bedroom house, keepsakes and collectibles, and other personal effects. Dunn asserted that Sharon and Anthony had subsequently exercised dominion and control over her personal property and that, at the time she filed her complaint, she no longer knew the whereabouts of her belongings.
The parties submitted scant evidence regarding the conversion claim in connection with the summary-judgment motion. Sharon and Anthony admitted that, on some unidentified date after Dunn had been removed from the property (which *814 presumably occurred on approximately July 1, 2007), they had notified Dunn that, at her own expense, Dunn could send movers to the property to retrieve her personal property.[4] A reasonable inference from that evidence is that Sharon and Anthony acknowledged that at one time they, in fact, had possession of personal property belonging to Dunn. Dunn acknowledged receipt of that offer, although she did not send movers to retrieve her belongings.
The evidence also established that, on some unidentified date, Sharon and Anthony had shipped a portion, i.e., five or six boxes, of Dunn's personal effects to the home of Dunn's sister, Inez. According to Dunn, she was living with her son at that time; in her deposition, Dunn testified that she did not know the contents of the boxes at Inez's house and that she did not know the location of the remainder of her property.
As recognized in 90 C.J.S. Trover and Conversion, § 3 (2002):
"The essence of conversion is a wrongful deprivation of the owner's property, whether temporarily or permanently.
"... The essence of conversion is not the acquisition of property by the wrongdoer, but a wrongful deprivation of it to the owner, with a temporary deprivation being sufficient.
"....
"It is of no importance what subsequent application is made of the converted property or that the defendant derived no benefit from it."
(Footnotes omitted.).
In White v. Drivas, 954 So.2d 1119 (Ala. Civ.App.2006), this court addressed the tort of conversion at length, stating:
"`[A] conversion is said to consist "`either in the appropriation of the thing to the party's own use and beneficial enjoyment, or its destruction, or in exercising of dominion over it, in exclusion or defiance of the plaintiff's right, or in withholding the possession from the plaintiff, under a claim of title inconsistent with his own.'" Clardy v. Capital City Asphalt Co., 477 So.2d 350 (Ala.1985), citing Geneva Gin & Storage Co. v. Rawls, 240 Ala. 320, 322, 199 So. 734 (1940) (quoting Conner & Johnson v. Allen & Reynolds, 33 Ala. 515, 517 (1859)). But "[t]he bare possession of property without some wrongful act in the acquisition of possession, or its detention, and without illegal assumption of ownership or illegal user or misuser, is not conversion." Clardy, 477 So.2d at 352, citing Bolling v. Kirby, 90 Ala. 215, 7 So. 914, 24 Am. St. Rep. 789 (1890).'
"Martin v. Luckie & Forney, Inc., 549 So.2d 18, 19(Ala.1989)....
"`"Four different actions may constitute conversion: a wrongful taking, a wrongful detention, an illegal assumption of ownership, or an illegal use or misuse. National Surety Co[rp]. v. Applied Systems, Inc., 418 So.2d 847 (Ala.1982)."
"`Tyler v. Equitable Life Assurance Society of the United States, 512 So.2d 55, 57 (Ala.1987).'
"Jones v. DCH Health Care Auth., 621 So.2d 1322, 1323 (Ala.1993).... See also SouthTrust Bank v. Donely, 925 So.2d 934, 939-40 (Ala.2005).
"`Conversions may be divided into four classes, (1) by a wrongful taking, *815 (2) by an illegal assumption, (3) by an illegal user or misuser, (4) by a wrong detention. In the first three classes, there is no necessity for a demand and refusal. In the latter class, a demand and refusal is required as the detention of a chattel furnishes no evidence of a disposition to convert to the holder's own use, or to divest the true owner of his property.'
"Scott Paper Co. v. Novay Cherry Barge Serv., Inc., 48 Ala.App. 368, 371, 265 So.2d 150, 153 (Civ.App.1972). See also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 15, at 99 (5th ed. 1984) (`Where there has been no wrongful taking or disposal of the goods, and the defendant has merely come rightfully into possession and then refused to surrender them, demand and refusal are necessary to the existence of [conversion].' (footnote omitted)).
"`"There is no doubt that an absolute or unqualified refusal to surrender possession of personal property to one entitled thereto constitutes a conversion. A limited or qualified refusal to surrender the property is not per se a conversion. Bolling v. Kirby, 90 Ala. 215, 7 So. 914 [(1890) ]. But the refusal must be a reasonable qualification or requirement and stated in good faith."'
"Gabrielson v. Healthcorp of Eufaula, Inc., 628 So.2d 411, 414 (Ala.1993) (quoting Scott Paper Co., 48 Ala.App. at 370, 265 So.2d at 153). `Whether or not the refusal to surrender possession of personal property is based upon a reasonable qualification or requirement is a question for the jury or ... the trier of the facts.' Scott Paper Co., 48 Ala.App. at 371-72, 265 So.2d at 153."
954 So.2d at 1123-24 (emphasis omitted).
In arguing that they were entitled to a summary judgment on Dunn's conversion claim, Sharon and Anthony asserted that Dunn had failed to make a formal demand for her property. However,
"[w]here there has been a wrongful conversion of property, demand for surrender is irrelevant.... A demand is only necessary in those cases ... where property has come into possession of the defendant by the consent of the plaintiff, and the plaintiff relies on the wrongful detention of the property by the defendant to sustain his action."
Kemp's Wrecker Serv. v. Grassland Sod Co., 404 So.2d 348, 352 (Ala.Civ.App.1981).
Although Dunn conveyed her real property to Sharon and Anthony, no evidence was offered to indicate that Dunn also thereby conveyed her personal property to Sharon and Anthony. Additionally, Dunn asserted that she had been forced to leave the property by Sharon and Anthony and that she had been allowed to take only a few personal items with her. The evidence presented by Sharon and Anthony failed to negate any genuine issue of material fact as to Dunn's allegations. Thus, whether Sharon and Anthony originally came into possession of Dunn's personal property with Dunn's consent remains a disputed issue of fact. Even if Sharon and Anthony could properly be said to have come into possession of Dunn's belongings with Dunn's consent, three of the four categories of conversion recognized under Alabama law require no demand for return of possession. See White, supra. Thus, Dunn's failure to demand the return of her property before filing her complaint in this action was an insufficient basis upon which to render a summary judgment on Dunn's conversion claim.
Further, although Sharon and Anthony argued that a portion of Dunn's personal property had been shipped to the home of *816 Dunn's sister, Inez, the record does not establish that Dunn acquiesced in that action.[5] Relinquishing control of Dunn's belongings to a third party is not equivalent to returning those belongings to Dunn. Moreover, Sharon and Anthony did not represent that all Dunn's belongings had been shipped to Inez's house, and they offered no explanation for the whereabouts of the remainder of Dunn's personal property.[6]
Additionally, Sharon and Anthony argue that they offered Dunn the opportunity to retrieve her belongings by offering to allow her to send movers to the property on a designated date. However, as previously noted, Sharon and Anthony failed to negate Dunn's allegation that she had been forced from the property without her belongings. Sharon and Anthony also failed to establish the date of their offer to allow Dunn to retrieve her belongings. Thus, Dunn's contention that Sharon and Anthony wrongfully interfered with Dunn's ownership and possessory rights in her personal property for some period remains at issue. At this stage of the litigation, we conclude that Sharon and Anthony simply did not meet their burden of proof as to their summary-judgment motion on the conversion claim.
We reverse the summary judgment as to Dunn's claim that the conveyance of the property is due to be invalidated pursuant to Ala.Code 1975, § 8-9-12, and as to Dunn's claim of conversion. We affirm the summary judgment as to all other claims asserted in Dunn's complaint. See Leisure American Resorts, Inc. v. Knutilla, 547 So.2d 424, 425 n. 2 (Ala.1989). We remand this cause to the trial court for further proceedings consistent with this opinion.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
All the judges concur.
NOTES
[1] Sharon and Anthony noted that Dunn had been offered the opportunity to retrieve her personal property with the exception of an automobile that was referenced in the complaint as Dunn's property but that Sharon and Anthony contended had actually been sold to Anthony.
[2] Dunn also submitted an unverified written statement, ostensibly given by her physician, Dr. O.D. Mitchum, indicating that Dunn "was unable to make rational decisions between the dates of 05-01-2007 to 06-30-2007."
[3] But cf. Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793 (Ala. 1984) (indicating that affirmative defenses that are required to be set forth in a responsive pleading under Rule 8(c), Ala. R. Civ. P., may not properly be asserted for the first time in a post-answer summary-judgment motion).
[4] Dunn executed the deed on May 16, 2007. According to Sharon, Dunn was released from Wiregrass Nursing Home, where she had undergone rehabilitation following surgery, on July 1, 2007; Dunn's complaint indicates that she was forced from the property on that same day. Dunn filed her complaint on August 28, 2007.
[5] The record indicates that "an arrangement was made between Inez and Sharon for [Dunn's] personal property" to be shipped to Inez's house.
[6] It cannot be seriously contended that all of the items listed in Dunn's complaint are accounted for in the five or six boxes that Sharon and Anthony shipped to Inez's house. Dunn's complaint alleged that the following personal items, among others, had been converted by Sharon and Anthony: living-room, dining-room, kitchen, and bedroom furniture; an automobile; and various guns. We also note that Sharon and Anthony expressly refused to return the automobile to Dunn, claiming that it had been sold to Anthony. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596970/ | 384 N.W.2d 284 (1986)
222 Neb. 432
Kenneth RUPPERT, Wilbur Ruppert, Bernard Ruppert, I.B. Hill, and Helen Magee, Appellees,
v.
Ethel P. BREAULT and Fern Louise Fenny, Appellants.
Nos. 85-040 to 85-044.
Supreme Court of Nebraska.
April 4, 1986.
*285 John F. Hanson & Fred T. Hanson, of Hanson & Hanson, McCook, for appellants.
Arlan G. Wine, McCook, for appellees.
KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
KRIVOSHA, Chief Justice.
The five appellees in this case, Kenneth Ruppert, Wilbur Ruppert, Bernard Ruppert, I. B. Hill, and Helen Magee, each individually filed suit in the district court for Red Willow County, Nebraska, seeking to impose a constructive trust upon the proceeds of five certificates of deposit purchased by Lloyd H. Ruppert, the proceeds of which are now in the possession of Ruppert's two daughters, the appellants, Ethel P. Breault and Fern Louise Fenny. The cases were ultimately consolidated for trial and are jointly appealed to this court. Following trial in the district court for Red Willow County, Nebraska, the district court imposed a constructive trust upon the proceeds of the five certificates of deposit. It is from this order which the appellants Breault and Fenny appeal. A number of assignments of error are alleged. We turn first, however, to the principal underlying issue, that being whether the district court should have imposed a constructive trust on the proceeds of the five certificates of deposit. We believe that the district court should not have entered such an order, and for that reason we reverse and remand.
The evidence, such as it is presented in the record, is virtually without dispute. The appellants, Ethel P. Breault and Fern *286 Louise Fenny, are the daughters of Lloyd H. Ruppert, who died testate on July 25, 1982. By the terms of a will executed by Ruppert on May 20, 1980, he left all of his residuary estate to his two daughters, if his wife predeceased him. At the time Ruppert executed his will, he also executed an unlimited general durable power of attorney appointing his daughter Ethel P. Breault as his attorney-in-fact.
Following his wife's death in September of 1980, Ruppert instructed Breault that in the event he was rendered helpless by a stroke she was to "cash in all my assets into one account in my bank, because I might lay there a long, long time and it will take a lot of money." One of the appellees, I.B. Hill, corroborated this fact by testifying that Ruppert had given Breault a power of attorney "to be used to pay for his debts or his sickness or anything else; that he did not want to leave this world owing any money."
The record further discloses that in 1981 Ruppert decided to sell his home and personal belongings. He eventually moved into a trailer on the property of one of the appellees, Kenneth Ruppert. At the time of the sale of his home and personal belongings, Ruppert again repeated his instructions to Breault and gave her a key to his safe-deposit box. The evidence discloses that from time to time he reminded her of his instructions, and as late as June 13, 1982, four days before his final illness began, he again instructed her as to what she was to do with his assets in the event he suffered a stroke. It is reflected by the evidence that during all of this time Ruppert was a strong-minded, independent, and clever businessman who was very capable of handling his own affairs.
On June 17, 1982, Ruppert suffered a stroke. On July 19, 1982, Breault returned from the State of Washington, where she lived, to McCook, Nebraska. Ruppert's doctors advised Breault that Ruppert, in a coma since the stroke, could remain alive in that state for some time. Breault testified that she concluded at that time that in light of his previous instructions to her, and the opinion expressed by the doctor, that it was her "time to take over." She went to Ruppert's bank, The First National Bank of McCook, for the purpose of getting his assets together. She testified that it was her intention to fly him back to the State of Washington when his health improved and take care of him there, using his savings.
Using the key given to her by her father and the original copy of the power of attorney, Breault went to The First National Bank of McCook and opened Ruppert's safe-deposit box. She discovered seven certificates of deposit and several U.S. Savings Bonds. The certificates were issued on four separate banks. Two of the certificates of deposit, each for $10,000, were in the name of Ruppert alone. The other five certificates of deposit, two in the amount of $10,000 and three in the amount of $5,000, were each in the name of Ruppert and one of the appellees. The evidence discloses that Breault was advised by the bank that cashing the U.S. Savings Bonds would be a long, drawn-out process; therefore, she decided to cash all of the certificates of deposit, including those in Ruppert's name alone, and place them in one account. Upon cashing the First National certificates of deposit, and paying a penalty for early withdrawal, she deposited the remaining funds in Ruppert's bank account at The First National Bank of McCook. She then cashed each of the other three certificates of deposit.
On July 24, 1982, she departed for Washington State, taking with her the savings bonds in Ruppert's name, as well as four cashier's checks made payable to Lloyd H. Ruppert and representing the proceeds of certificates of deposit in The First National Bank of McCook, First Federal Lincoln, American Charter Savings and Loan Association, and the McCook National Bank. Additionally, she withdrew all of the money from Ruppert's checking account except for approximately $2,000 which she left for current expenses. She testified that she intended to open an account in Ruppert's name in Washington State so that she would be able to pay all of his expenses *287 from her home. She also testified that she did this so that, when the time came, she could arrange for Ruppert to be transported to Washington.
All of the assets, including the cashier's checks for the certificates of deposit, were kept in the name of Lloyd H. Ruppert alone. On July 25, 1982, the day after Breault returned to Washington, her father died. Breault was notified, and on July 27, 1982, she returned to McCook, Nebraska, bringing back all of the assets with her and putting all of the cash items in The First National Bank of McCook checking account. Ruppert's will was informally probated on August 2, 1982, and Breault was appointed personal representative. Notice to creditors was published, and the time for filing claims expired October 4, 1982. No objections were filed, and a final accounting and petition for complete settlement was filed on February 17, 1983, and a formal hearing was held on March 15, 1983. At that time the county court entered an order finding that Breault and her sister, Fenny, were the only surviving heirs of Ruppert and entitled to all of the property in his name.
In the meantime, on March 1, 1983, the appellees filed suit in the district court for Red Willow County, Nebraska, seeking to have a constructive trust imposed on the proceeds of the five certificates of deposit. As we have indicated, the district court granted their relief and imposed a constructive trust.
In beginning our analysis of this issue, we must keep in mind that, this being an action in equity, it is reviewed by us de novo. Neb.Rev.Stat. § 25-1925 (Reissue 1979); Ford v. Jordan, 220 Neb. 492, 370 N.W.2d 714 (1985). Before proceeding to review those facts de novo, we believe it appropriate to set out the rules applicable to a constructive trust. In Kuhlman v. Cargile, 200 Neb. 150, 157, 262 N.W.2d 454, 458-59 (1978), we noted:
When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee. Campbell v. Kirby, 195 Neb. 610, 239 N.W.2d 792 (1976). A constructive trust is a relationship, with respect to property, subjecting the person who holds title to the property to an equitable duty to convey it to another on the ground that his acquisition or retention of the property would constitute unjust enrichment.... Each case involving the existence of a constructive trust is to be determined on the peculiar facts, circumstances, and conditions presented therein. Jenkins v. Jenkins, [151 Neb. 113, 36 N.W.2d 637 (1949)] supra.
Earlier, in Nelson v. Seevers, 143 Neb. 522, 527, 10 N.W.2d 349, 351-52 (1943), we described in some detail how a constructive trust comes into existence, noting:
The subject of constructive trusts, on the other hand, is intimately connected with that of frauds. "Rightly understood, a `constructive trust' is only a mode by which courts of equity work out equity and prevent or circumvent fraud and overreaching." [Citation omitted.]
....
... "A constructive trust is a relationship with respect to property subjecting the person by whom the title to the property is held to an equitable duty to convey it to another on the ground that his acquisition or retention of the property is wrongful and that he would be unjustly enriched if he were permitted to retain the property."
In Nelson, supra at 527-28, 10 N.W.2d at 352, we further cited from the Restatement of Trusts § 44 (1935), noting:
"(1) Where the owner of an interest in land transfers it inter vivos to another in trust for the transferor, but no memorandum properly evidencing the intention to create a trust is signed, and the transferee refuses to perform the trust, the transferee holds the interest upon a constructive trust for the transferor, if
"(a) the transfer was procured by fraud, duress, undue influence or mistake, or *288 "(b) the transferee at the time of the transfer was in a confidential relation to the transferor."
And in Guynan v. Guynan, 208 Neb. 775, 779, 305 N.W.2d 882, 885 (1981), we noted:
"Constructive trusts arise from actual or constructive fraud or imposition, committed by one party on another. Thus if one person procures the legal title to property from another by fraud or misrepresentation, or by an abuse of some influential or confidential relation which he holds toward the owner of the legal title, obtains such title from him upon more advantageous terms than he could otherwise have obtained it, the law constructs a trust in favor of the party upon whom the fraud or imposition has been practiced."
The question that we must then determine is whether Breault acquired title to these funds by reason of some fraud or overreaching. We think not. At the time she cashed the certificates of deposit, Breault had the absolute right to do so, and none of the appellees could have maintained any action or obtained any relief. The evidence is clear that none of the appellees had contributed in any manner to the purchase of the certificates of deposit and that they had been placed in the name of Ruppert and the various appellees solely by Ruppert. Having made that decision in the first instance, he was at liberty to change his mind at any time he chose, and, had he done so, none of the appellees would have been in a position to maintain an action or seek to have a constructive trust impressed upon the proceeds in the hands of Ruppert. By Ruppert's having given Breault a durable power of attorney, Breault stood in the same shoes as Ruppert, and just as Ruppert could not have been required to pay the proceeds over to the five appellees during his lifetime, Craig v. Hastings State Bank, 221 Neb. 746, 380 N.W.2d 618 (1986), neither could Breault have been required to pay the proceeds over to the five appellees so long as Ruppert was alive. Nor could the appellees in this case have prevented Breault from cashing the certificates of deposit and placing the proceeds in an account in Ruppert's name. Neb.Rev.Stat. § 30-2703 (Reissue 1979).
Had Breault not held a durable power of attorney or not placed the proceeds in Ruppert's name but, rather, in her own, we might have a different situation. But she did not do that. Breault's actions during Ruppert's last illness were in all respects legal and proper and clearly within what everyone concedes were Ruppert's instructions to Breault. What caused the disruption was not what Breault did pursuant to Ruppert's instructions but, rather, that, contrary to what Ruppert's doctor told Breault, Ruppert did not survive for a very long time. Instead, he died shortly thereafter. The record is clear, however, that when Breault cashed the certificates of deposit she did not know that Ruppert would soon die but, rather, believed he would survive in a coma for some long time. These facts are not an appropriate situation for imposition of a constructive trust.
Appellees seem to maintain, however, that despite all this, because the proceeds of the certificates of deposit were in the name of Ruppert at the time of his death and therefore passed to Breault and her sister by reason of Ruppert's last will and testament, somehow a constructive trust should be imposed. We have, however, said many times that the burden of establishing a constructive trust is always upon the person who bases his rights thereon, and he must do so by evidence that is clear, satisfactory, and convincing. See, Slocum v. Bohuslov, 164 Neb. 156, 82 N.W.2d 39 (1957); Peterson v. Massey, 155 Neb. 829, 53 N.W.2d 912 (1952). The evidence in this case simply does not establish clearly, satisfactorily, or convincingly that Breault acquired the property by reason of any improper act. Absent such evidence to the required degree, the imposition of a constructive trust is inappropriate.
In Marco v. Marco, 196 Neb. 313, 242 N.W.2d 867 (1976), this court was presented with a situation not too dissimilar from *289 the instant case. The appellee, Dorothy Marco, married Lawrence Marco following the death of Lawrence Marco's first wife, who was the mother of his two sons, Jerry and Jim. Together, Lawrence and Dorothy had 12 children. The evidence further reflected that Lawrence Marco's sons by his previous marriage each, from a very early age, began to work for his father in his various auto businesses and continued to do so throughout his adult life. Each of them constructed homes or businesses on properties owned by Lawrence and Dorothy but maintained by the two sons. The evidence further disclosed that, with regard to one of the parcels, the son furnished the money for the improvements. There was also evidence that the father had said that when he died the properties would belong to his sons. The properties were referred to as the sons' property, though legal title was not in their names. Following the father's death, the sons filed suit to impose constructive trusts on the real estate on which they lived or worked, maintaining that they had occupied the premises for all these years under the representations and assurances from their father that the property would be theirs, even though legal title was otherwise. Nevertheless, this court refused to impose a constructive trust, noting at 325-26, 242 N.W.2d at 875-76:
The record is completely devoid of any evidence, direct or by inference, to show that Dorothy was named as a grantee in the deeds through some abuse of a confidential relationship....
The evidence therefore does not establish prima facie that Dorothy obtained title by virtue of a confidential relationship, under such circumstances that she ought not, according to the rules of equity and good conscience as administered in chancery, hold and enjoy the benefits of title to the property in question. Under the circumstances shown, equity need not raise a trust by construction upon the legal title to the real estate in question.
Lawrence may well have intended, and we must accept on the basis of the record, that he did orally express his intention that Jerry was to have his home and building and Jim his home, but this alone is not enough to raise a constructive trust in the real estate. If it were, then no deed and no will would be secure. There is nothing in the record to show that such intention was communicated to Dorothy or that she took title with some agreement with reference thereto.
To the same extent, in the instant case there is no evidence to indicate that Breault either acquired the durable power of attorney or transferred the certificates of deposit into Ruppert's name through either a fraudulent act or in violation of a confidential relationship. At the time that the action was taken, Breault had every reason to believe that Ruppert might remain in a coma for some long time. While one may question in hindsight whether Breault's decisions were the wisest ones, she was simply acting in accordance with the instructions she had previously been given by Ruppert, and in accordance with the legal documents delivered to her by Ruppert. It is clear that, by reason of Ruppert's suffering a stroke before dying, the appellees lost the potential benefit they might have otherwise acquired. But, until Ruppert died, they did not have any present right in that property superior to Ruppert or Breault under the durable power of attorney. Once Ruppert died, the title to the property, having properly passed into Ruppert's name alone, transferred to Breault and Fenny by reason of Ruppert's last will and testament. We do not believe that such evidence meets the test of clearly, satisfactorily, and convincingly establishing the fact that Breault took advantage of some confidential relationship to the detriment of the appellees and in some manner acquired title to property which they lawfully should otherwise have had. See In re Estate of Lienemann, 222 Neb. 169, 382 N.W.2d 595 (1986). For that reason we believe that the district court erred in imposing a constructive trust and order that *290 the judgment be reversed and the cause remanded with instructions to dismiss.
There are several other issues raised by this appeal. In view of the fact, however, that we have determined that a constructive trust should not have been imposed and that the property should have remained with Breault and Fenny, we do not address these other issues.
The judgment is reversed and the cause remanded with directions to dismiss.
REVERSED AND REMANDED WITH DIRECTIONS TO DISMISS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596997/ | 638 So.2d 306 (1994)
Louvanne DIXON
v.
WINN-DIXIE LOUISIANA, INC.
No. 93-CA-1627.
Court of Appeal of Louisiana, Fourth Circuit.
May 17, 1994.
Rehearing Denied July 19, 1994.
*310 Robert W. "Doc" Booksh, Jr. and John B. Fox, New Orleans, for plaintiff-appellee.
Elizabeth S. Cordes and Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellant.
Before LOBRANO, PLOTKIN and LANDRIEU, JJ.
PLOTKIN, Judge.
Defendant Winn-Dixie Louisiana, Inc. appeals a trial court judgment awarding plaintiff Louvanne Dixon $450,000 in damages for injuries he received as a result of a fall down a flight of stairs during a wrongful detention for suspected shoplifting. We amend the judgment to reduce the total award from $500,000 to $302,410.62, and reduce that award by 10 percent for the plaintiff's comparative negligence. In all other respects, we affirm the judgment.
*311 Facts
Although the parties differ on the details of the incidents from which the instant case arose, the following facts are undisputed. On March 2, 1988, while shopping in the Winn-Dixie store at 1841 Almonaster Avenue in the City of New Orleans, Dixon was detained by security guard Michael Castillo for suspected shoplifting of two packages of cigarettes. Dixon had placed the cigarettes in his pocket and had moved into the area between the checkout area and the door at the time of the detention. In response to a request by Castillo, Dixon accompanied him to the back of the store and up a flight of stairs to a platform area where Winn-Dixie employees regularly took breaks. He was detained for more than two hours; toward the end of that time, he was handcuffed in a standing position next to a rail in the "break room." When the police arrived to arrest him, the handcuffs were removed by New Orleans Police Officer Leon Duncan, who was working a security detail at Winn-Dixie and who had previously relieved Castillo. As they prepared to go down the flight of stairs, Dixon fell, ending up at the bottom of the stairs.
Dixon filed suit against Winn-Dixie and Wackenhut Corporation, the security company which employed Castillo, claiming damages both for wrongful detention and for personal injury caused by the fall, which he claims resulted from a hazardous condition on the Winn-Dixie premises. Specifically, Dixon claims that the fall aggravated a pre-existing reflex sympathetic dystrophy (RSD) condition in his right hand. Additionally, he claims that the fall injured both his neck and lower back, causing, among other things, the herniation of a disc in his lower back. Wackenhut Corporation settled with Dixon prior to trial.
The case against Winn-Dixie was tried before a jury, which made the following findings of fact: (1) that Winn-Dixie did not have reasonable cause to detain Dixon, (2) that Dixon sustained an accident or injury on the Winn-Dixie premises due to a hazardous condition, (3) that Winn-Dixie did not act in a reasonably prudent manner to keep the premises free of hazardous conditions, and (4) that the plaintiff's actions did not contribute to his accident or injury. The jury assigned 10 percent contributory negligence to Dixon, with the remaining 90 percent of the negligence for the accident being assigned to Winn-Dixie.
The jury then awarded the following damages: $125,000 for past, present, and future physical pain and suffering; $125,000 for past, present, and future mental anguish and distress; and $250,000 for past, present, and future medical expensesa total of $500,000 in damages. The trial judge entered a final judgment in conformity with the jury verdict, awarding the plaintiff $450,000 ($500,000 minus 10 percent for his contributory negligence).
Winn-Dixie appeals, claiming that the cumulative effect of numerous improper evidentiary rulings, coupled with the trial judge's improper comments and actions before the jury, resulted in reversible error. Winn-Dixie also claims that the following jury fact findings were manifestly erroneous: (1) that Winn-Dixie did not have reasonable cause to detain the plaintiff for shoplifting, (2) that Dixon sustained an accident as a result of a hazardous condition on the premises, and (3) that Winn-Dixie failed to act in a reasonably prudent manner to keep the premises free from such hazardous conditions. Finally, Winn-Dixie claims that the damages are excessive.
1. Alleged trial judge errors
This court has previously found that the cumulation of trial judge errors in evidentiary rulings, coupled with other improper circumstances occurring at trial, may be so prejudicial as to deprive the parties of a fair trial, and thus may constitute reversible error, even if none of the errors considered alone would be sufficient to rise to the level of reversible error. See Clement v. Griffin, 634 So.2d 412 (La.App. 4th Cir.1994). In the instant case, Winn-Dixie claims that the trial judge made numerous prejudicial evidentiary rulings and comments which prevented Winn-Dixie from presenting its defenses to the jury and resulted in an improper jury verdict.
*312 Generally, a trial judge is afforded discretion in conducting a trial, even a jury trial. However, that discretion is circumscribed by considerations of justice and fairness and by La.C.C.P. art. 1791, which prohibits a trial judge from making any kind of comments on the evidence. The trial judge is generally prohibited from engaging in a pattern of judicial conduct which demonstrates prejudice to one party and/or partiality to the other party.
Most of Winn-Dixie's arguments on this issue concern trial court decisions to either admit or exclude evidence, decisions which are governed by the Louisiana Code of Evidence, specifically the following articles:
La.C.E. art. 401. Definition of "relevant evidence"
"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
La.C.E. art. 402. Relevant evidence generally admissible; irrelevant evidence inadmissible
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, the Constitution of Louisiana, this Code of Evidence, or other legislation. Evidence which is not relevant is not admissible.
La.C.E. art. 403. Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or waste of time.
Generally, a trial judge is accorded discretion under the above articles concerning the admission or exclusion of evidence on the grounds of relevance. Polotzola v. Missouri Pacific Railroad Co., 610 So.2d 903, 907 (La.App. 1st Cir.1992). The trial judge is also given a great deal of discretion in assessing the probative value of evidence. Hebert v. Angelle, 600 So.2d 832, 836 (La. App. 3d Cir.), writ denied, 604 So.2d 997 (La.1992). Thus, a trial court decision admitting or excluding evidence will not be reversed in the absence of a finding of abuse of discretion. Polotzola, 610 So.2d at 907; Hebert, 600 So.2d at 836. Further, determination of whether the trial judge in a civil case abused his discretion by admitting relevant evidence because the relevance is outweighed by prejudice depends, at least in part, on whether the resulting prejudice was unfair in the context of the record of the case as a whole. Polotzola, 610 So.2d at 907.
1) Admission of municipal court record
First, Winn-Dixie claims that the trial court improperly admitted the municipal court record on the criminal shoplifting charge against Dixon, which had been stamped "DISMISSED NOT ON THE MERITS." Winn-Dixie's attack on the admission of the record is based primarily on its contention that dismissal of a criminal charge by some unknown person for some unknown reason is not relevant to determination of whether Winn-Dixie had reasonable cause to detain Dixon for suspicion of shoplifting since different burdens of proof are required in civil and criminal cases.[1]
*313 The burden of proof in false imprisonment cases has been explained as follows:
In order for plaintiff to recover from a merchant for the tort of false imprisonment, [he] must prove that a detention occurred under one or more of the following circumstances: (1) unreasonable force was used, (2) no reasonable cause to believe that the suspect had committed a theft of goods existed, or (3) the detention lasted more than 60 minutes, unless it was reasonable under the circumstances that the suspect be detained longer.
Thomas v. Schwegmann Giant Supermarket, 561 So.2d 992, 995 (La.App. 4th Cir.1990). In this case, the plaintiff sought to prove the existence of the second circumstancethat no "reasonable cause" to believe that the suspect had committed a theft of goods existed.
In contrast, in order for a suspected shoplifter to be convicted under the criminal law of this state, the prosecutor must prove, among other things, "probable cause" to arrest. "Reasonable cause" to justify a detention is "something less than probable cause; it requires that the detaining officer have articulable knowledge of particular facts sufficiently reasonable to suspect the detained person of criminal activity." Id., quoting State v. Hudgins, 400 So.2d 889, 891 (La.1981) (emphasis added). Thus, the defendant correctly argues that two different burdens of proof apply.
However, the inquiry does not end there, because "relevant evidence" under La.C.E. art. 401 includes all evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Thus, the fact that the burdens of proof are different in the two types of cases is not dispositive of whether the municipal court records are relevant to this civil case. In fact, as noted by the trial judge, the municipal court record in this case is relevant under that standard, since it unquestionably does have a tendency to make the existence of reasonable cause more probable than it would be in the absence of the records. Certainly, the defendants would argue that a criminal conviction for shoplifting would tend to make the existence of reasonable cause more probable than it would have been otherwisethe opposite is also true. Thus, we find no abuse of discretion in the trial court's admission of the municipal court record.
2) Exclusion of federal court record
Second, Winn-Dixie contests the trial judge's exclusion of a complaint and pre-trial order, part of the record in a federal court suit filed by Dixon against three New Orleans Police officers. In the complaint, Dixon alleges that, in conjunction with an improper arrest in 1985, he was brutally beaten by the three officers, then forced to perform oral sex on two of the three officers. Winn-Dixie offered the documents in support of its contention that Dixon's alleged injuries were caused, not by an accident, but by his intentional act of "sliding" down the stairs, performed in an attempt to avoid being taken away by the police, because of his alleged fear that he would encounter the same officers. Additionally, Winn-Dixie claims that the documents support its contentions that the plaintiff's RSD was not caused or aggravated by the fall, since the complaint in the federal suit alleged severe and totally disabling RSD injuries to Dixon's right arm and hand as a result of the 1985 encounter with the police.
We note that the trial court decision excluding the federal court record was improper under rules established by the jurisprudence. In Lakeshore Property Owners Assoc., Inc. v. Delatte, 524 So.2d 126 (La.App. 4th Cir.1988), this court found that the trial judge's exclusion of evidence of an extrajudicial admission made in a previous law suit constituted reversible error because the evidence was relevant, although it did not operate as a conclusive presumption as do judicial *314 confessions made in the suit being tried. Id. at 130.
In the instant case, the defendant sought to present evidence of the plaintiff's prior extrajudicial confession, made in a previous lawsuit, during the cross-examination of the plaintiff. The trial judge incorrectly concluded that the prior statements were not relevant. Statements made by the party to an action in prior lawsuits are relevant if those statements have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." La.C.E. art. 401. The statements made by the instant plaintiff in the prior federal court case certainly meet that standard since they did tend to prove that the plaintiff might have had a motive for faking the fall down the stairs in order to avoid going to Central Lockup and running the risk of encountering the same police officers a second time. Thus, the trial court erred in excluding the evidence.
However, under the circumstances presented by this case, the trial court's exclusion of the federal court case is not reversible error. A review of the record indicates that the fact that Dixon claimed to have had the 1985 encounter with the police was discussed numerous times during the trial, both in testimony from medical professionals and in the testimony of the fact witnesses, including the testimony of the plaintiff himself. Further, Winn-Dixie's theory that Dixon faked the accident by sliding down the stairs was presented in great detail during the testimony of Officer Duncan, who was accompanying Dixon at the time the alleged accident occurred. In fact, Duncan's testimony was sufficient, not only to present that explanation for Dixon's alleged fall to the jury, but also to relate that explanation to Winn-Dixie's theory that Dixon would have been willing to do almost anything to avoid going to jail. The fact that Dixon claimed that his RSD was allegedly aggravated by the 1985 incident is also well documented in the record. Since the defendant offered the excerpts from the federal court record in an attempt to advance a theory which was otherwise fully presented to the jury for consideration, the trial judge's improper exclusion of the excerpts record was harmless.[2]
3) Limitation of examination of witnesses
Winn-Dixie also alleges incorrect evidentiary rulings made by the trial judge in connection with defense counsel's examination of three witnesses: the plaintiff, Dixon; Dr. Gerald Davis, an orthopedic surgeon who testified for the plaintiff; and Dr. James M. Laborde, an orthopedic surgeon who testified for the defendant.
a) Cross-examination of plaintiff
Concerning the trial judge's limitation of Winn-Dixie's cross-examination of the plaintiff, Winn-Dixie alleges that it was denied the opportunity to fully question Dixon about the 1985 altercation with police because the trial judge prohibited counsel from mentioning the fact that plaintiff was under arrest at the time the incident occurred. We find no merit in this contention. First, the trial judge's decision on this issue was perfectly correct since evidence of prior arrests are generally not admissible under the Louisiana Code of Evidence. See La.C.E. art. 609. Further, a review of Dixon's cross-examination on this issue reveals that, although the word "arrest" was never used, Dixon did respond in the affirmative when Winn-Dixie's counsel asked him if he had been "taken to police headquarters and handcuffed." The plaintiff also admitted during his cross-examination that he filed a federal court lawsuit about the 1985 incident.
b) Cross-examination of Dr. Davis
Winn-Dixie attacks several of the trial court's rulings which it claims improperly limited complete cross-examination of Dr. Davis,[3] complaining especially about the trial *315 court's decision to limit questions concerning reconciliation of Dr. Davis' conclusion that Dixon suffered a herniated disc as a result of the fall down the Winn-Dixie steps with medical records prepared by his associate, Dr. Watermeier.[4] Further, the trial court disallowed questions concerning Dr. Davis' opinion of Dixon's credibility based on contact with other physicians.
Our review of the record does reveal a serious error on the part of the trial judge in relation to the cross-examination of Dr. Davis. Since Dr. Davis admitted on direct examination that his conclusion that Dixon had suffered a herniation of a disc as a result of the Winn-Dixie accident was based in part on his "assumption" that a note made by his associate, Dr. Watermeier, was incorrect. Since the witness testified to this fact, the defendant was entitled to fully explore the basis of his opinion on cross-examination. The error is compounded by the fact that the inconsistent records were actually prepared by Dr. Davis' associate.
This error would be sufficient to constitute reversible error under ordinary circumstances, but not in this case, primarily because of the fact that the defendant failed to call Dr. Watermeier, despite the fact that defense counsel told the court on two occasions that he did intend to call him. Winn-Dixie's attorney stated in oral argument to this court that the final decision not to call Dr. Watermeier was "strategic." Reversal of a jury trial decision on the basis of an error which could easily have been cured by the complaining party would violate this court's responsibility to reverse only when the trial judge has abused his discretion in conducting the trial. The trial judge's decision on this issue was based, at least partially, on the defendant's assurance that Dr. Watermeier would be called to testify in contradiction of Dr. Davis' conclusion. Defense counsel admitted that the failure to call the contradictory witness was based on consideration of what would be best for the defendant. Further, Winn-Dixie was allowed to fully question Dr. Davis on all issues related to his own personal contact with the plaintiff.
c) Examination of Dr. Laborde
Finally, Winn-Dixie argues that the trial judge improperly limited its questioning of its own witness, Dr. Laborde, who conducted an independent medical examination of Dixon on Winn-Dixie's request. Winn-Dixie sought to prove through its examination of Dr. Laborde that Dixon's claim against Winn-Dixie was specious. In support of this contention, Dr. Laborde was allowed to testify that he felt that Dixon's complaints were magnified by depression and potential financial gain from litigation. He noted a number of his examination findings involving inconsistent subjective complaints, which he felt had no basis in any physical problem. However, the trial judge refused to allow Dr. Laborde to testify concerning a report of a 1986 evaluation of the plaintiff performed by Dr. Philip Griffin, contained in Tulane Medical Center records which had already been admitted into evidence. Winn-Dixie claims that Dr. Griffin's report reveals that Dixon was "fully capable of subtle manipulative behavior in order to meet his own ends."
One possible explanation for the trial judge's decision disallowing the testimony is the fact that the 1986 report concerned an evaluation performed as much as two years prior to the 1988 accident in question. Another possible basis for the decision is the fact that the doctor who prepared the 1986 report was not listed on the witness list. However, if the trial judge's decision was based on either of these considerations, it was not consistent with his other rulings made during the trial. During the testimony *316 of many of the expert medical witnesses, the trial judge allowed them to refer to treatments the plaintiff received for his RSD years prior to the accident. In addition, several of the medical professionals were allowed to testify concerning MRI findings, despite the fact that the doctor who ordered the MRI did not testify. Thus, the trial judge's ruling disallowing Dr. Laborde's testimony was incorrect in light of the record as a whole.
However, in view of the fact that Dr. Laborde was allowed to testify extensively concerning his own conclusions on this issue, the error in disallowing the testimony is harmless. Further, the defendant's theory that the plaintiff faked the accident, as well as the inconsistencies in the medical history given to the various physicians by the plaintiff, were all presented to the jury. Thus, the issues that admission of the statement from the 1986 report was directed toward were fully developed at trial even without admission of that statement.
b. Comments on the evidence
Winn-Dixie also argues that the trial judge violated La.C.C.P. art. 1791, which provides as follows:
The judge in the presence of the jury shall not comment upon the facts of the case, either by commenting upon or recapitulating the evidence, repeating the testimony of any witness, or giving an opinion as to what has been proved, not proved, or refuted.
The above article was passed by the legislature in an attempt to circumscribe verbal and non-verbal indications given by trial judges in the presence of a jury concerning which party they favor. Additionally, the article is designed to prevent trial judges from indicating in front of juries their opinions concerning whether a party has proven a factan action which falls within the exclusive province of the jury. A trial judge's only proper function during a jury trial is to act as an impartial "umpire" in an adversary system. When a trial judge takes actions outside of that function, the attorneys to the action have a right to object. The only proper comments which may be made by a trial judge conducting a jury trial include the asking of supplementary questions for purposes of clarification.
In the instant case, the trial judge stated twice during Winn-Dixie's cross-examination of the plaintiff, when the defendant attempted to impeach the plaintiff with his deposition testimony, that Dixon's trial testimony was "consistent" with his deposition testimony, a conclusion that should properly have been left to the jury. Certainly, those comments violated the provisions of La.C.C.P. art. 1791 prohibition. The trial judge erred by making an improper comment concerning the interpretation of the evidence being presented by the defendant.
However, the fact that the trial judge violated the prohibition does not automatically require reversal of the jury verdict. That result is mandated only when review of the record as a whole reveals that the improper comments made by the trial judge were so prejudicial that the complaining party was deprived of a fair trial. Our review of the record reveals that the trial judge's error in this case did not rise to that level. Thus, the error is harmless and does not require reversal of the trial court judgment.
c. Cumulation of alleged errors
Finally, Winn-Dixie alleges reversible legal error arising from the cumulation of the above circumstances occurring at trial, coupled with the trial judge's attitude toward the defendant, saying the trial judge's actions, taken as a whole, were so prejudicial as to deprive Winn-Dixie of a fair trial. Claiming that the trial judge's actions limited its ability to fully present its defenses and resulted in severe prejudice in the eyes of the jury, Winn-Dixie urges this court to find reversible error based on the cumulative effect of "multiple erroneous evidentiary rulings as well as her disdainful treatment of defense during trial."
Although this court has previously recognized that the cumulative effect of a series of improper trial judge actions can give rise to reversible error, See Clement, 634 So.2d 412, our review of the record of this case as a whole does not reveal such reversible error. *317 We are aware of the defendant's contention that the "printed transcript can not reflect the attitude of impatience, exasperation and disdain with which the trial judge treated defense counsel throughout the trial"; however, the printed transcript is the only avenue of review available to this court. Reversible error must be evident on the face of the trial court record; otherwise, appellate courts could routinely reverse trial court judgments on the strength of the bare contention that the trial judge treated one or the other party unfavorably. Such actions are contrary to the standards governing appellate review. The record in this case reveals no reversible error; thus, we find no merit in any of Winn-Dixie's arguments for reversal on the basis of legal error.
2. Alleged factual errors
Winn-Dixie's second major argument for reversal of the trial court judgment is that the following factual findings made by the jury were manifestly erroneous on the basis of the record as a whole: (1) that Winn-Dixie did not have reasonable cause to detain Dixon, (2) that Dixon sustained an accident or injury due to a hazardous condition on the Winn-Dixie premises, and (3) that Winn-Dixie failed to act in a reasonably prudent manner to keep the premises free of any hazardous condition. Alternatively, Winn-Dixie argues that the 10 percent comparative negligence assigned to Dixon is too low.
a. Reasonable cause to detain
First, Winn-Dixie argues that the jury improperly found it liable for false imprisonment because the jury's conclusion that Winn-Dixie had no reasonable cause to detain Dixon was manifestly erroneous.
Generally, La.C.Cr.P. art. 215 grants immunity from civil liability for damages arising from false imprisonment to merchants and "specially authorized" employees of merchants who "use reasonable force to detain a person for questioning ..., for a length of time, not to exceed sixty minutes,... when [the merchant] has reasonable cause to believe that the person has committed a theft of goods ..., regardless of the actual value of the goods." Thomas, 561 So.2d at 995-96. Therefore, a defendant may not be held liable for damages arising from false imprisonment unless the plaintiff proves that he was detained under one or more of the following circumstances: (1) use of unreasonable force, (2) lack of reasonable cause to believe the plaintiff had committed a theft of goods, or (3) unreasonable detention for more than 60 minutes. Id. at 995.
The jury interrogatory in the instant case focused on the second of the three circumstances listed abovethat is, whether Winn-Dixie had reasonable cause to believe that Dixon had committed a theft.[5] "Reasonable cause" has been defined to mean "something less that probable cause; it requires that the detaining officer have articulable knowledge of particular facts sufficiently reasonable to suspect the detained person of criminal activity." Id. at 995.
Winn-Dixie claims that the undisputed facts in this case are enough to constitute "reasonable cause," even if the jury chose to believe Dixon's version of the contested facts. As noted above, the parties agree that Dixon had put cigarettes in his pocket, then moved into the area between the checkout counters and the front door without having paid for the cigarettes prior to the time he was detained by Castillo.
However, even given the above uncontested facts, the jury could have found, based on Dixon's version of the circumstances surrounding those facts that Castillo had no reasonable cause to believe that Dixon intended to steal the cigarettes. Dixon testified that he placed the two packages of cigarettes in his pocket, with the tops showing, because he did not want to lose the last two packages of his favorite brand of cigarettes which were in the store. He stated that he signalled to the cashier that he had the cigarettes, *318 then walked to the end of the checkout counter to talk to the security guard, who he knew from previous visits to the store, while he waited for some friends, who were shopping in the store. The friends were going to pay for the cigarettes when they paid for the items they were purchasing, Dixon said. Dixon claims that he simply stepped back, away from the security guard, to look down the aisle for his friends, when Castillo asked him to accompany him to the back of the store. He went with the security guard, Dixon stated, because he thought Castillo wanted to show him something. Dixon said that he was not told that he was suspected of shoplifting until he reached the "break room" at the back of the store.
Of course, the defendant's version of the facts surrounding the arrest is different in several significant details from Dixon's version. However, decisions made by finder of fact based purely on credibility calls when two permissible views of the evidence exist can virtually never be manifestly erroneous, and thus are not subject to reversal by appellate courts. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The factfinder's decision in such cases must be affirmed so long as it is reasonable. Stobart v. State through DOTD, 617 So.2d 880, 882-83 (La.1993). Therefore, the jury's finding that Winn-Dixie did not have reasonable cause to detain Dixon is affirmed.
b. Existence of hazardous condition
Second, Winn-Dixie argues that the jury improperly found it liable for Dixon's personal injuries because the jury's conclusions that Dixon sustained an accident or injury due to a hazardous condition on the Winn-Dixie premises and that Winn-Dixie failed to act in a reasonably prudent manner to keep the premises free of hazardous conditions were manifestly erroneous.
LSA-R.S. 9:2800.6 controls the liability of merchants for personal injuries resulting from accidents occurring on the premises. At the time of Dixon's fall, in 1986, that article provided, in pertinent part, as follows:
A. A merchant owes a duty to persons who use his premises to exercise reasonable care to keep his aisles, passageways and floors in a reasonably safe condition. This duty includes a reasonable effort to keep the premises free of any hazardous conditions which reasonably might give rise to damage.
B. In a suit for damages by a person who has suffered damages as a result of a hazardous condition while on the merchant's premises, the person must prove that the accident was caused by a hazardous condition. The burden of proof then shifts to the merchant to prove that he acted in a reasonably prudent manner in exercising the duty of care he owed to the person to keep the premises free of any hazardous conditions.
The second and third jury interrogatories in the instant case were directed toward determination of whether Winn-Dixie should be held liable for Dixon's injuries under the above statutes. The second interrogatory questioned whether Dixon carried his burden of proving that a hazardous condition existed which caused his accident; the third interrogatory questioned whether Winn-Dixie carried its burden after the burden shifted of proving that it acted in a reasonably prudent manner in keeping the premises free of hazardous conditions. The jury found specifically that Dixon did carry his burden, and that Winn-Dixie did not carry its shifting burden; thus, Winn-Dixie was held liable for Dixon's damages.
Winn-Dixie's major argument on this issue is that the jury verdict is manifestly erroneous on the basis of the record in this case because in order to reach that verdict the jury had to both "totally accept the plaintiff's version of the incident" and "reject clear and specific testimony from both the former store manager and the police officer" on major points of contention.
However, in light of the principles of appellate review established by the Rosell and Stobart cases, Winn-Dixie's arguments are misplaced. Winn-Dixie's arguments themselves point to the fact that the jury decision on this issue is a pure credibility call, which cannot be reversed by this court if the verdict has a reasonable basis. Stobart, 617 So.2d at 882-83.
*319 Further, a review of the record indicates that the jury's conclusions that a hazardous condition existed on the premises and that Winn-Dixie had failed to act prudently to prevent that condition did have a reasonable basis in the record. Dixon testified that his injuries resulted from a fall down the stairs which was in turn caused by his tripping over a box which had been stacked at the top of the stairs themselves. Dixon stated that the boxes were stacked more than six feet high next to the side of the stairs where the handrail was located, but that the bottom box was turned a different way so that it stuck out. Dixon also said that he experienced some dizziness as he approached the stairs, caused by the fact that he had been forced to stand handcuffed to the rail for such a long period of time. This testimony from the plaintiff is sufficient to provide a reasonable basis for the jury's conclusion. Thus, the trial court judgment on this issue is affirmed.
c. Comparative fault
The jury assigned Dixon ten percent comparative negligence in causing the accident. Winn-Dixie argues that Dixon's comparative negligence should be greater than ten percent because his testimony reveals that he "knew the boxes were there and simply failed to exercise proper caution and walk around the boxes." However, we find no error in the jury's assignment of comparative fault. Dixon admitted that he knew the boxes were present on the stairs and that he had to walk around the boxes when he had gone up the stairs to the "break room." However, he also testified that the bottom box in the stack was turned a different way than the boxes that were higher in the stack. The jury could well have concluded that Dixon tripped over that bottom box even though he did take action to avoid the obvious stack of boxes.
The defendant's arguments that the plaintiff should be assigned a greater percentage of fault in causing the accident were also based in part on their argument that the defendant actually intentionally caused his own accident by kicking the boxes, then pretending to fall. The jury's decision to assign the defendant only 10 percent of the fault in causing the accident is further proof that the jury did not believe the defendant's version of the facts and therefore did not credit the defendant's theory that the plaintiff caused his own injuries.
3. Damages
The trial court awarded Dixon a total of $500,000 in damagesitemized as follows: $125,000 for past, present, and future physical pain and suffering; $125,000 for past, present and future mental anguish and distress; and $250,000 for past, present, and future medical expenses. The trial judge reduced that award to $450,000 after subtracting ten percent of the total for Dixon's comparative negligence. Winn-Dixie argues first that none of the injuries were caused by the March 3, 1988 fall down the stairs. Alternatively, Winn-Dixie argues that the damages are excessive.
a. Causation
Winn-Dixie challenges the damage awards on the basis of its contention that Dixon failed to prove that the fall down the stairs was actually the cause of any of Dixon's physical injuries. Concerning the RSD, Winn-Dixie points to the fact that the condition was originally diagnosed after a 1979 incident in which Dixon's right hand was caught in a printing press, and was previously aggravated by the December 1985 incident with the police. Thus, Winn-Dixie alleges, Dixon failed to prove a causal connection between the RSD and the accident at Winn-Dixie in March of 1988. Concerning the neck and back injuries, Winn-Dixie argues that they could just as well have been caused by an accident which occurred on July 10, 1988, during which Dixon, who was a pedestrian, was hit by an automobile.
Winn-Dixie also asserts that the conclusions reached by Dixon's expert medical witnesses that the physical injuries were caused by the accident are all based on Dixon's subjective complaints, not on any objective findings of injury. However, we note that the record reveals that Winn-Dixie questioned all the medical professionals at length concerning the basis of their medical conclusions. That line of questioning was consistently designed to emphasize the fact that medical professionals are dependent on the history given by the patient in reaching conclusions *320 concerning the cause of injury. Thus, the defendant's theory that Dixon was inventing or exaggerating the extent of the injury he suffered as a result of the Winn-Dixie accident was adequately presented to the jury. The jury had all the evidence before it, and still chose to credit Dixon's version of the facts. We note also that all of Dixon's treating physicians obviously believed his statement of his medical history, indicating the jury had a reasonable basis for concluding that Dixon's subjective complaints were largely consistent with the objective evidence of injury.
Thus, we will consider whether the record reveals a reasonable basis for the jury's conclusion that the various injuries were caused by the accident.
1) RSD
Although Winn-Dixie is correct that the record shows that Dixon's RSD was originally diagnosed by Dr. Michael Brunet after the printing press accident in November of 1979, Dr. Brunet testified that Dixon had "gotten pretty much back to normal" some thirteen months later, in January of 1981, when he was discharged from treatment. Winn-Dixie is also correct that the record shows that the condition was aggravated by the December 1985 incident with the police; Dr. Brunet resumed treatment of Dixon at that time, but again discharged him, after a year and a half of treatment, in August of 1987. Dr. Brunet said that after the second treatment period the plaintiff's condition returned to the point he had reached prior to the police incident, with about 20 percent disability.
Following the fall down the Winn-Dixie stairs, Dixon again sought treatment for the RSD, initially from Dr. Joseph Guenthar, a general practitioner who examined Dixon the day after the accident. Later, Dixon sought treatment from Dr. Brunet, Dr. Aaron Jacob Friedman, and Dr. Davis. All of the medical testimony indicated that Dixon consistently complained of pain in his right arm and hand during the years of treatment between the Winn-Dixie accident and the trial. Further, the plaintiff underwent numerous treatments, including ganglion and bier block treatments, use of a TENS unit, and numerous prescription medications. The medical testimony indicated that the RSD condition had not been stabilized by the time of the trial, even after some six years of the same types of treatment which had previously successfully relieved his pain in a year to year and a half. Thus, the plaintiff was considering undergoing surgery in an attempt to relieve his pain.
We find the above evidence sufficient to support the jury's conclusion that Dixon's pre-existing RSD condition was aggravated as a result of the fall down the Winn-Dixie stairs.
2) Back and neck injuries
Winn-Dixie's major argument that Dixon failed to prove that his neck and back injuries were caused by the Winn-Dixie accident is based on the fact that Dixon admitted that he was struck by an automobile while walking down a New Orleans sidewalk in July of 1988.
However, the medical evidence reveals that Dixon's major complaints when he was taken to the hospital by ambulance on the night of the accident at Winn-Dixie and when he was examined by Dr. Guenthar the day after the accident were related to problems with his back and neck. Further, he had never complained of back or neck problems previous to the accident, according to the medical testimony. Further, Dr. Windsor S. Dennis testified to clinical findings of injury to Dixon's back and neck during the period between the Winn-Dixie accident and the pedestrian-automobile accident four months later. In fact, Dr. Dennis stated that his findings when he first saw Dixon on March 25, 1988 were consistent with later MRI findings that Dixon had a herniated disc at the L5/S1 level and a bulging disc at the L4/5 level. The MRI findings were also reported by Dr. Davis, who attributed the disc injuries to the Winn-Dixie accident. Dr. Friedman's testimony also indicated that Dixon experienced back and neck problems as a result of the accident. Additionally, the medical evidence indicates that Dixon experienced sensory problems indicative of back injury. Dr. Davis assigned Dixon a 30 to 35 *321 percent full body disability rating as a result of his back injuries.
We find the above evidence sufficient to support the jury's conclusion that Dixon suffered injury to his neck and lower back as a result of the fall down the Winn-Dixie stairs.
b. Quantum
Finally, Winn-Dixie claims that all of the damage awards are excessive and urges this court to reduce the awards.
1) General damages
Appellate review of general damage awards has been severely restricted by the Louisiana Supreme Court. Most recently, the supreme court described the appellate function in reviewing damages as follows:
In Reck v. Stevens, 373 So.2d 498 (La. 1979), this Court ... pointed out that the role of an appellate court in reviewing general damages is not to decide what it considers to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Each case is different, and should be determined by the facts or circumstances particular to the case under consideration.
. . . . .
The standard for appellate review of general damage awards is difficult to express and is necessarily non-specific, and the requirement of an articulated basis for disturbing such awards gives little guidance as to what articulation suffices to justify modification of a generous or stingy award. Nevertheless the theme arising from [previous cases] is that the discretion vested in the trier of fact is "great," and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.
Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993). See also Vaughan Contractors, Inc. v. Cahn, 629 So.2d 1225 (La.App. 4th Cir.1993), in which this court recognized that the Youn case is the last in a trilogy of cases in which the Louisiana Supreme Court has indicated that "error correction in factual disputes is virtually non-existent" in Louisiana, resulting in a rule that "reversal of a judgment is warranted only in those rare cases where the record contains little or no evidence to support the trial court's conclusions." Id. at 1228.
a) Physical pain and suffering
Both the plaintiff's testimony and the medical evidence indicate that Dixon suffered severe physical pain and suffering both as a result of the aggravation of the RSD condition in his right hand and arm and as a result of the neck and back injuries. Dixon consulted at least five different physicians for his various injuries; each of those physicians testified that Dixon consistently complained of pain in his right hand and arm, and/or in his lower back or neck. Concerning the RSD, Mr. Friedman characterized the condition as a "horrible disease," which is very painful and can sometimes be "devastating." Dr. Brunet also said that RSD can be very painful. Dixon testified that the ganglion and bier block procedures for treating the RSD were very painful and caused severe complications. Dixon said that he has experienced severe pain in his right arm and hand since the accident. In fact, he claims, the pain has been so severe since the accident, he has asked that the arm be amputated. Dixon also stated that his back pain has prevented him from working.
We find the record evidence that Dixon suffered severe physical pain and suffering, and that he will continue to suffer severe physical pain and suffering in the future, sufficient to support the jury's award of $125,000, under the principles established by the Louisiana Supreme Court in the Youn case, quoted above. Certainly, we are unable to say that the jury abused it's "vast" discretion in setting the award. Accordingly, the award is affirmed.
b) Mental anguish and distress
This element of damages has at least two partsdamages suffered as a result of the *322 improper detention, and damages suffered as a result of the personal injury.
Dixon testified in some detail that he suffered surprise, embarrassment, anger, frustration, resentment, and fear as a result of Winn-Dixie's decision to detain him on suspicion of shoplifting cigarettes. Dixon claims that the whole incident was caused by a decision to accuse him of something he never intended to do, induced by his desire to spend the time he was waiting for his friends talking to the security guard, rather than standing in the check-out line. His testimony indicated that he was very surprised by the fact that the guard thought he was trying to steal the cigarettes. Further, he stated that he was very frustrated by the fact that he was left in the "break room" for such long periods of time after he was taken there. Further, he was handcuffed to a railing in that room for an unspecified period of time while Winn-Dixie employees were coming into the room to take their breaks. When he was told that he was to be arrested, he was afraid that the police officers who had abused him in 1985 would be the ones to pick him up.
The record also contains evidence that Dixon suffered mental anguish and distress as a result of his physical injuries, especially because of the aggravation of the RSD. Dr. Davis testified that Dixon exhibited such severe depression and "suicidal tendencies" on September 30, 1991 that he had recommended emergency psychiatric treatment for the depression. Further, Dr. Davis said that he had once recommended full-time psychiatric care for Dixon.
Thus, we find that the trial court was not manifestly erroneous in concluding that Dixon suffered mental pain and anguish as a result of the false arrest and as a result of his physical injuries. However, the existence of the errors discussed above deprives the jury's award on this issue of the strong presumption of correctness to which it would normally be entitled.
Specifically, in view of our conclusion that the record contains insufficient evidence to support a finding that Dixon needs future psychiatric treatment, we find the $125,000 award for mental pain and suffering is clearly excessive. Our review of the record convinces us that the highest award reasonable jurors could have given Dixon for this item of damages is $50,000. The trial court judgment is therefore amended to reduce the award for mental pain and suffering from $125,000 to $50,000.
2) Special damages
The jury awarded Dixon $250,000 in special damages for past, present, and future medical treatment. The defendant challenges this award, saying it is not supported by the record.
a) Past medical expenses
The record contains uncontroverted evidence of the following past medical expenses:
Dr. Michael F. Adinolfi $ 80.00
United Medical Center of Louisiana 310.00
Clearview Medical Imaging 1,176.00
Dr. Gerald Davis 993.00
Dr. Windsor S. Dennis 305.00
Elmwood Medical Center 9,111.97
Emergency Medical Services 280.00
Dr. Aaron J. Friedman 1,234.00
Greater New Orleans Pain Consortium 3,500.00
Dr. Joseph F. Guenthar 150.00
St. Charles General Hospital 2,452.70
Touro Infirmary 757.80
Tulane Medical Center 239.00
Thera-Kinetics, Inc. 943.78
Jefferson Orthopaedic Appliances, Inc. 400.40
Prescriptions 5,476.97
__________
TOTAL $27,410.62
The plaintiff is entitled to recovery of all of these past medical expenses.
b. Future medical expenses
The standard for determining whether a factfinder properly awarded damages for future medical expenses was addressed by the Louisiana Supreme Court in Youn, as follows:
When the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required. La.C.C.P. art. 2164.
*323 623 So.2d at 1262, quoting Stiles v. K-Mart Corp., 597 So.2d 1012, 1013 (La.1992). Although the claimant is not required to prove the exact value of the necessary expenses, some evidence to support the award must be contained in the record.
The record in the instant case does support the jury's obvious conclusion that future medical expenses will be necessary and inevitable. The plaintiff will continue to incur expenses for doctors' appointments and prescription drugs for an indefinite period of time. Those expenses totalled some $3,000 for doctors' appointments and $5,500 for prescription drugs in the six years between the accident and the trial.
However, this court is unable to determine how the jury reached the conclusion that Dixon's past, present, and future medical treatment would cost $250,000. Further, our review of the record convinces us that, even giving the plaintiff the benefit of every doubt, the record does not support such a high award. Thus, we will consider the evidence to determine the highest possible award the jury could reasonably have given the plaintiff for future medical expenses.
The record contains definite evidence concerning three possible future treatments for plaintiff's RSD. First, the record indicates that the plaintiff intends to undergo a surgical procedure called a sympathectomy; Dr. Brunet testified that the procedure would cost approximately $3,312 for the surgeon's fee, not including hospital charges and anesthesia. We estimate the total amount for the sympathectomy at $10,000. Other possible treatments for the RSD include nerve blocks, at a cost of approximately $1,200 each; the record indicates the plaintiff might require as many as three treatments each year. Although the plaintiff could conceivably require nerve blocks over the next 30 years, in light of the fact that his RSD condition pre-dated the Winn-Dixie accident, no more than ten years of those treatments could reasonably be attributed to this accident. The highest amount the plaintiff could be required to spend on nerve blocks over the next 10 years is $36,000. Further, the medical evidence reveals a recommendation that Dixon participate in a pain clinic at a cost of approximately $24,000 for a 30-day treatment. These latter expenses might be required even if the sympathectomy is performed since the doctors cannot guarantee that the procedure would relieve Dixon's pain. Therefore, the highest reasonable amount the jury could have awarded for future medical expenses for treatment of the RSD is $70,000.
The evidence of possible future medical treatment for the plaintiff's other problems is impossible to calculate with any degree of certainty. Possible treatment for Dixon's back pain includes surgery and/or epidural back injections, which Dr. Davis testified would cost $15,000 to $25,000 for three injections over a six- to nine-month period. However, the record does not indicate how many epidural treatments the plaintiff will need. Further, the evidence of past medical expenses does not include any comparably priced treatments, making the plaintiff's need for such injections in the future speculative. The record also contains no evidence of the estimated cost of surgery to correct the back injury.
Although the record contains evidence that at least one doctor believes that Dixon needs psychiatric treatment as a result of the accident, perhaps on a full-time basis, no expert in psychiatric treatment testified; thus, that opinion is purely speculative. Further, the record contains no evidence of the cost of possible psychiatric treatment.
Giving plaintiff every benefit of the doubt, and considering all of the above evidence, we find that the highest reasonable award the jury could have awarded Dixon for future medical expenses is $100,000. Thus, the award for past, present, and future medical expenses is reduced from $250,000 to $127,410.62.
Conclusion
For the above and foregoing reasons, the trial court judgment awarding Dixon $250,000 for past, present, and future medical expenses is reduced to $127,410.62; the $125,000 award for mental pain and suffering is reduced to $50,000; and the $125,000 for past, present, and future physical pain and suffering is affirmed. The total judgment is therefore reduced from $500,000 to $302,410.62. That amount is reduced by 10 percent to reflect the plaintiff's comparative negligence, making the total award to the plaintiff *324 $272,169.56 ($302,410.62 minus $30,241.06). All costs of this appeal are assessed to the appellant.
AMENDED AND, AS AMENDED, AFFIRMED.
LANDRIEU, J., concurs and assigns reasons.
LANDRIEU, Judge, concurring.
I concur in the result reached by the majority and write only to express my respectful disagreement with the majority's interpretation of Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1260-61 (La.1993), as it applies to our standard of factual review. Citing Vaughan Contractors, Inc. v. Cahn, 629 So.2d 1225 (La.App. 4th Cir.1993), in which this court interpreted Youn, the majority concludes that our standard of "manifestly erroneous" or "clearly wrong" has been further circumscribed and that "... error correction in factual disputes is virtually non-existent ...". I do not believe it was the intention of the Supreme Court to change the standard mandated for factual review. Youn merely elaborated on the authority of appellate courts when reviewing the discretion of trial judges and juries in determining general damage awards.
NOTES
[1] Winn-Dixie also asserts that the municipal court records are inadmissible hearsay, which was one of the bases of its objection to admission of the records at the trial court level. The plaintiff claims that the records are not hearsay because they are self-authenticating under the relevant provisions of the Louisiana Code of Evidence. We note that the fact that the records are self-authenticating under the evidence code does not affect their status as hearsay. However, the municipal records are not a part of the record on appeal, so we are unable to determine whether they are indeed hearsay. However, since WinnDixie failed to brief this contention, we will consider it abandoned for purposes of this appeal. See Uniform Rules, Courts of Appeal, Rule 2-12.4.
Winn-Dixie also claims that this alleged error was compounded by the fact that the trial judge allowed the plaintiff's attorney to argue that the criminal court's dismissal of the charge proved that the detention was improper. However, neither the opening nor closing arguments given by the parties are a part of the record on appeal. Further, no argument by the plaintiff's counsel is found on the pages of the record referenced by the defendant's brief. Thus, we are unable to consider this argument.
Therefore, the only argument we will consider on this issue is whether the trial judge's express holding that the "outcome of the criminal trial would be relevant" to the civil case was correct. Trial transcript, p. 32.
[2] We have examined the excerpts from the federal court record, which were included in the record on appeal by proffer, and find that they would not have provided the jury with any additional information, not otherwise presented at trial, in support of the defendant's theory.
[3] We note that our review of the record in this case reveals that Dr. Davis was non-responsive and evasive on cross-examination to the point that many of his answers were inappropriately glib. The record also reveals that defense counsel became more and more frustrated by the witness' uncooperative demeanor and actions. However, one of the causes of those conditions was defense counsel's own reactions to Dr. Davis' actions. This complaint on the part of the defense does not constitute reversible error.
[4] Winn-Dixie also complains about the trial court's refusal to admonish Dr. Davis when he made a comment during his cross-examination concerning the fact that he did not trust WinnDixie's counsel. The trial judge ruled that the comment was not unfounded because the attorney had insinuated that Dr. Davis had removed documents from his file. Although the witness' comment was certainly improper and the trial judge should have admonished the witness before the jury, we do not find the failure to give such an admonishment to be reversible error.
[5] We note that the detention in the instant case unquestionably lasted more than 60 minutes. In fact, the record reveals that the detention may have lasted as long as two and one-half hours. However, the reasonableness of the length of the detention apparently was not an issue at the trial court level and the parties do not make it an issue in the briefs submitted to this court. Thus, we will not consider that issue. Additionally, we note that the parties do not make the reasonableness of the force used an issue. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1596890/ | 28 So.3d 1092 (2009)
STATE of Louisiana
v.
Eric SMITH.
No. 09-KA-259.
Court of Appeal of Louisiana, Fifth Circuit.
November 24, 2009.
*1093 Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Thomas J. Butler, Warren Mouledoux, III, Jerome G. Smith, Assistant District Attorneys, Parish of Jefferson, Gretna, LA, for State of Louisiana.
Bruce G. Whittaker, Attorney at Law, Louisiana Appellate, New Orleans, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and JUDE G. GRAVOIS.
JUDE G. GRAVOIS, Judge.
Defendant, Eric Smith, appeals his conviction of possession of cocaine. On appeal, he argues that the trial court unduly restricted his ability to test the affidavit of the search warrant, which he alleges relied exclusively upon the credibility of an informant. Defendant also requests an errors patent review. Finding no merit to defendant's arguments on the merits, we affirm defendant's conviction. Finding errors patent that require correction, we remand the matter to the trial court with instructions, as detailed below.
PROCEDURAL HISTORY
The Jefferson Parish District Attorney filed a bill of information charging defendant, Eric Smith, with possession with intent to distribute cocaine in violation of LSA-R.S. 40:967(A). Defendant was arraigned and pled not guilty to this charge. Following a hearing, the trial court denied defendant's motions to suppress.[1] The charges were nolle prossed because a witness was unavailable. Charges were refiled approximately one week later and defendant proceeded to trial. A 12-person jury found defendant guilty of a lesser charge, possession of cocaine, in violation of LSA-R.S. 40:967(C). Defendant was sentenced to five years imprisonment at hard labor.
The State filed a multiple offender bill of information, alleging that defendant was a *1094 second felony offender. After being advised of his rights, defendant admitted to being a second felony offender. His original sentence was vacated and defendant was thereupon sentenced to eight years at hard labor as a multiple offender. This timely appeal follows.
FACTS
Trooper Jacob Dickinson of the Louisiana State Police testified that on June 22, 2005, he prepared and obtained a search warrant for the search of defendant's residence located at 203 Shrewsbury Road, Apartment No. 8, in Jefferson, Louisiana, in Jefferson Parish. This search warrant was executed the following morning, on June 23, 2005. Agents knocked on defendant's door and identified themselves as members of the Louisiana State Police. When no one answered, Sergeant Dwight Robinette, also of the Louisiana State Police, breached the door with a ram. Trooper Dickinson went inside defendant's residence and was followed by Trooper Sandy Cranen and Lieutenant John Kisler. Defendant and his wife were found in a small room in bed.
Defendant was handcuffed and in due course brought to a parking lot nearby. Trooper Dickinson searched defendant and discovered a clear plastic bag in defendant's pocket. The bag contained approximately 15 separate baggies with off-white, rock-like substances, which he believed to be crack cocaine. Trooper Dickinson conducted a preliminary field test, which indicated cocaine was present. Further testing confirmed the presence of cocaine. In defendant's apartment, Sergeant Robinette discovered over $1,600 in cash. Also, a clear purple-colored bag containing a green vegetable-like matter believed to be marijuana was discovered on a table next to the bed.[2] Lieutenant Danny Jewell of the Jefferson Parish Sheriffs Office, qualified as an expert in the use, packaging and distribution of controlled dangerous substances, testified that in his experience, possession of the large number of individually wrapped rocks of crack cocaine and large amounts of money was indicative of distribution of crack cocaine.
While in the parking lot, defendant was advised of his Miranda[3] rights. Trooper Dickinson testified that defendant said he was unable to get a job so he was forced to sell crack to support his family. Defendant consented to a written statement and wrote that he took responsibility for his actions and that he had a small amount of crack in his apartment.
Defendant testified at trial and denied being in possession of cocaine on the morning of the incident. He stated that crack cocaine was not recovered from his pocket. He did admit, however, that the marijuana was his. He stated that he was sleeping when the officers came into his residence. He testified that it was his birthday, that he had arrived home only several hours earlier, and that he was under the influence at the time the officers entered his apartment.
Defendant denied that Trooper Dickinson read him his rights and that he wrote a statement. He explained that the money taken from his apartment was his wife's money and was a loan from her attorney in connection with settlement of a civil case.
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, defendant argues that the trial court erred in restricting his ability to test the affidavit of the search warrant, which he alleges relied exclusively upon the credibility of an *1095 informant. As such, he argues that in order to test the affidavit, it was essential to test the informant's credibility. Defendant contends that the trial court's failure to order disclosure of the informant's identity based on the exceptional facts of this case was error. Further, defendant argues that at the very least, he should have been able to find out if the informant was worthy of belief, even if he was prohibited from learning his identity. He specifically points to the trial court's refusing to allow his counsel to pursue a line of questioning concerning whether the informant was "working off a charge." Defendant cites LSA-C.E. art. 607, which provides for attacking the credibility of a witness.[4] Defendant concludes that he was prevented from effectively confronting the charges against him and that he was deprived of a fair hearing on his motions to suppress.
The State argues that defendant's motions to suppress were filed in two dismissed cases, district court case numbers 05-4603 and 05-4604, and that the motions and ruling were never incorporated into the instant case, district court case number 08-3872. The State argues that because defendant failed to seek disclosure of the identity of the confidential informant in the instant case, he is precluded from assigning as error the ruling the other cases.[5]
We find that the correctness of the rulings on defendant's motions to suppress is properly before this court. The record on appeal was supplemented pursuant to defense counsel's motion to include the suppression hearing transcript relating to this case. In his motion to supplement the record, defense counsel explained that the suppression hearing was conducted on September 12, 2007 in the same division by the same judge, but under a predecessor case number. Importantly, the State did not object to the defendant's Motion to Supplement. This Court then granted defendant's request to supplement the record with the September 12, 2007 transcript of the suppression hearing, and the record has been duly supplemented.
The State also addresses the merits of defendant's claim and contends the trial judge did not abuse his discretion in not ordering disclosure of the confidential informant's identity because the confidential informant was not a participant in the crime for which defendant was convicted.
At the suppression hearing, Trooper Dickinson of the Louisiana State Police testified that he sought an application for a search warrant for 203 Shrewsbury Road, Apartment No. 8. He stated that he affirmed the facts contained in the affidavit were true and presented it to the judge at 8:40 p.m. on June 22, 2005. He testified that the application indicated that information was received from a confidential informant, that he was familiar with the confidential informant, that he had used him several times in the past, and that he had *1096 proven to be reliable. He explained that the confidential informant's cooperation had resulted in the seizure of illegal controlled dangerous substances in the past.
According to Trooper Dickinson, the confidential informant came to him and advised him that he was aware that an individual was distributing heroin and crack cocaine from the parking lot of two casinos in Jefferson and Orleans Parish and also at his residence in Apartment 8 on Shrewsbury Road.[6]
Trooper Dickinson explained that he and Trooper Robinette obtained $20 of Louisiana State Police investigative expense money, photographed it, documented it, and met with the confidential informant on June 22, 2005. The confidential informant was searched and no contraband was found on him. The confidential informant was given the money, went to defendant's apartment, and knocked on the door. The confidential informant then made a controlled buy from defendant at approximately 4:23 p.m. on June 22, 2005. Trooper Dickinson testified that he observed the hand-to-hand transaction in defendant's doorway from a vantage point of about five yards away. Trooper Dickinson explained that he was about two doorways away and had a clear view of defendant. The confidential informant then went back to the troopers and gave them the crack cocaine. Trooper Dickinson testified that he put all of this information in his search warrant, and the judge issued an order for the search of the defendant's residence. He testified that the search warrant did reflect that crack cocaine was purchased from defendant for $20 and that the controlled buy was monitored and observed by the "affiant" (Trooper Dickinson).
Trooper Dickinson testified that the search warrant was executed the following morning. After the door of the apartment was breached, defendant and his wife were located in bed. Defendant was arrested and a search incident to the arrest revealed that he had a clear plastic bag containing an off-white, rock-like substance believed to be crack cocaine in his pocket. Also, Trooper Dickinson testified that over $1600 was found in the apartment. Of this money, $20 was the "buy money" that was prerecorded and had been used on the previous day. Further, marijuana was located on the desk. After defendant was advised of his Miranda rights, defendant executed a "statement of rights form" and made a statement.
On cross-examination, defense counsel asked if the confidential informant was arrested and trying to "work off his charge." The State objected, arguing that counsel could not ask questions to identify the confidential informant. Defense counsel then asked for the identity of the informant. Again, the State objected[7] to the question because it sought the identity of the informant. Defense counsel argued that he was entitled to the confidential informant's name because he had participated in the drug transaction that directly led to the search warrant. He argued this was the exception to the privilege rule which allows the State to keep the confidential informant's identity confidential. The State responded that defendant was *1097 not entitled to the confidential informant's identity because the offense he was involved in was not the offense for which defendant was on trial. The court sustained the State's objection.
The State objected to more defense questions about the confidential informant, arguing that this was not relevant because the officer had witnessed the transaction. The court sustained the objection on the basis that the witness was the affiant on the warrant application and that he had actually witnessed the alleged transaction between the defendant and the confidential informant.
The trial judge stated he did not see a problem with the warrant and that he did not see a lack of probable cause, recognizing that it was defendant's burden because the search was pursuant to a warrant. In addition, with respect to defendant's statements, the trial judge ruled that he did not find coercion and did not find failure on the part of Trooper Dickinson to properly advise defendant of his rights. As such, the trial court denied defendant's motions to suppress.
LSA-C.E. art. 514(A), pertinent to the issues presented herein, provides:
The United States, a state, or subdivision thereof has a privilege to refuse to disclose, and to protect another from required disclosure of, the identity of a person who has furnished information in order to assist in an investigation of a possible violation of a criminal law.
As a general rule, an informant's identity is privileged information. State v. Clark, 05-61, p. 12 (La.App. 5 Cir. 6/28/05), 909 So.2d 1007, 1014, 1014 n. 18, writ denied, 05-2119 (La.3/17/06), 925 So.2d 538 (citing State v. Broadway, 96-2659, p. 19 (La.10/19/99), 753 So.2d 801, 815, cert. denied, 529 U.S. 1056, 120 S.Ct. 1562, 146 L.Ed.2d 466 (2000)). This privilege is founded upon public policy and seeks to further and protect the public interest and law enforcement by encouraging people to supply information to the police by protecting their anonymity.[8] However, exceptions to this privilege exist. See LSA-C.E. art. 514(C).[9] The identity of an informant should be made known to the accused only when his right to prepare his defense outweighs the need for protection of the flow of information.[10] The burden is on the defendant to show exceptional circumstances warranting disclosure of the name of a confidential informant.[11] The trial court is afforded great discretion in making this determination.[12]
When an informant has played a crucial role in the criminal transaction, and when his or her testimony is necessary to insure a fair trial, disclosure of the informant's identity should be ordered.[13] Conversely, *1098 when an informant only supplies information, and does not participate in the transaction, disclosure is not warranted.[14]
In State v. Clark, supra, the trial court denied the defendant's pretrial motion to reveal the identity of the confidential informant. This Court found that the trial court had not erred in denying the motion because although the confidential informant's drug purchase supplied the probable cause necessary to obtain the search warrant, the informant's participation was not integral to the transaction (i.e., the search) that uncovered the cocaine that was the basis for the instant charge. This Court explained that the defendant was not charged with the distribution of the cocaine to the confidential informant, but with possession of cocaine with intent to distribute that occurred on a later date.
We find, based on the foregoing, that defendant was not entitled to know the identity of the confidential informant. Importantly, the affiant of the probable cause affidavit and search warrant, Trooper Dickinson, observed the transaction between defendant and the confidential informant firsthand. Although the confidential informant was a source of the basis of the probable cause required for the search warrant, that fact in and of itself did not require disclosure of the confidential informant's identity. Defendant has not presented exceptional circumstances that required disclosure of the confidential informant's identity. The charge in this case was based on the cocaine found when the search warrant was executed. It was not based on the evidence seized from the controlled buy between defendant and the confidential informant. The confidential informant did not play a crucial role in the transaction that led to defendant's arrest because he played no part in the execution of the search warrant and the search of defendant's person. The confidential informant's role prior to the search was not even mentioned at trial.
For the reasons set forth above, we find no error in the trial court's rulings on the issues involving the confidential informant. As such, this assignment of error is without merit.
ASSIGNMENT OF ERROR NO. TWO: ERRORS PATENT REVIEW
In his second assignment of error, defendant requests an errors patent review. This Court routinely reviews the record for errors patent regardless of whether defendant makes such a request. LSA-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). The following matters were found.
The commitment and the transcript contain several discrepancies that require remand for correction. The commitment reflects that defendant "pleaded GUILTY under R.S. 15:529.1 on count 1) 40:967.A F II SCHEDULE II POSS. WITD OF A CDSCOCAINE." However, the jury returned a responsive verdict of possession of cocaine, a violation of LSA-R.S. 40:967(C). When there is a discrepancy between the minutes and the transcript, the transcript must prevail. State v. Lynch, 441 So.2d 732, 734 (La. 1983). Accordingly, we remand the matter to the trial court for correction of the commitment to accurately reflect the verdict rendered by the jury.
Additionally, the commitment only specifies the terms of the enhanced sentence and does not specify the original sentence. On remand, the commitment should be corrected to include the terms of the original *1099 sentence, even though it was later vacated when the trial court imposed defendant's enhanced sentence.
Also, immediately after sentencing, defendant orally moved for an appeal. The commitment does not reflect the oral motion for appeal. The commitment should also be corrected in this regard.
Further, the transcript reflects that defendant admitted that he was a second felony offender and was sentenced as such. The commitment reflects that defendant was "sentenced under Multiple Bill statute 15:529.1," but does not reflect that defendant was sentenced as a second felony offender. Accordingly, on remand, the trial court is hereby ordered to correct the commitment to reflect that defendant was sentenced as a second felony offender. See State v. Scott, 08-703, p. 12 (La.App. 5 Cir. 1/27/09), 8 So.3d 658, 666; State v. Dufrene, 07-823, p. 5 (La.App. 5 Cir. 2/19/08), 980 So.2d 31, 34.
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 LSA-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).
In its brief, the State notes that the trial judge failed to impose the enhanced sentence without benefit of probation or suspension of sentence as mandated by LSA-R.S. 15:529.1(G). However, this Court need not take corrective action on this error, as State v. Williams, 00-1725, p. 10 (La.11/28/01), 800 So.2d 790, 799 and LSA-R.S. 15:301.1(A) provide that the "without benefits" provision is self-activating. See State v. Williams, 05-582, p. 7 (La.App. 5 Cir. 2/14/06), 924 So.2d 327, 332.
Accordingly, for the reasons stated above, defendant's conviction is hereby affirmed. The matter is remanded for correction of the minute entries as described above, and for transmission of the corrected minute entries to defendant and to the officer in charge of the institution to which the defendant has been sentenced.
AFFIRMED; REMANDED WITH INSTRUCTIONS.
NOTES
[1] The record does not include copies of defendant's written motions to suppress.
[2] Testing later confirmed that this matter was marijuana.
[3] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[4] It is noted that the informant was not a witness in this case.
[5] The bill of information in this case, district court case number 08-3872, was filed on July 24, 2008. Upon reviewing defendant's records, it appears that he was originally charged with possession with intent to distribute cocaine by a bill of information filed on July 28, 2005 in case number 05-4603. In case number 05-4604, defendant was charged with possession of marijuana in another bill of information filed the same date. On July 17, 2008, the State nolle prossed the charges in both of these cases and reserved its right to refile the charges. As noted, the current charge was filed against defendant approximately one week later.
Defense counsel suggests that the predecessor case for the cocaine offense was 05-4604. However, the case involving the cocaine offense was case number 05-4603. The suppression hearing transcript that was supplemented in this appeal involved both case numbers 05-4603 and 05-4604.
[6] It is noted that Trooper Dickinson mistakenly testified several times that defendant's residence address was 208 Shrewsbury Road, when it is clear from viewing the record as a whole that the defendant's residence address at all times pertinent hereto was 203 Shrewsbury Road.
[7] Although the transcript reflects defense counsel objected, it appears from the context of the transcript it was the State that objected to defense counsel's questioning.
[8] Clark, 05-61 at 12, 909 So.2d at 1014-15, 1015 n. 19 (citing Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957)).
[9] LSA-C.E. art. 514(C)(3) states that no privilege shall be recognized if "[t]he party seeking to overcome the privilege clearly demonstrates that the interest of the government in preventing disclosure is substantially outweighed by exceptional circumstances such that the informer's testimony is essential to the preparation of the defense or to a fair determination on the issue of guilt or innocence."
[10] Clark, 05-61 at 12, 909 So.2d at 1015, 1015 n. 20 (citing State v. Zapata, 97-1230, p. 7 (La.App. 5 Cir. 5/27/98), 713 So.2d 1152, 1158, writ denied, 98-1766 (La.11/6/98), 727 So.2d 443).
[11] Clark, 05-61 at 12, 909 So.2d at 1015.
[12] Id.
[13] Clark, 05-61 at 12-13, 909 So.2d at 1015, 1015 n. 23 (citing Broadway, 96-2659 at 20, 753 So.2d at 815; Zapata, 97-1230 at 8, 713 So.2d at 1158).
[14] Clark, 05-61 at 13, 909 So.2d at 1015, 1015 n. 24 (citing Zapata, supra). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597045/ | 638 So.2d 1011 (1994)
Jimmy Wayne CRAFT, Appellant,
v.
STATE of Florida, Appellee.
No. 92-04349.
District Court of Appeal of Florida, Second District.
June 15, 1994.
*1012 Domingo G. Alvarez, III, Orlando, for appellant.
Robert A. Butterworth, Atty. Gen., and John M. Klawikofsky, Asst. Atty. Gen., Tampa, for appellee.
PER CURIAM.
Because the state failed to establish an exigent circumstance that would permit law enforcement officers to enter the defendant's home without first knocking and announcing their presence, we reverse the trial court's order denying the motion to suppress filed by the defendant, Jimmy Wayne Craft.
The state argued, and the trial court ruled, that the officer peril exception to the knock-and-announce requirement justified the entry because the officers who were going to execute a search warrant at Craft's residence had reason to believe they would be in peril based on information regarding Craft's possession of a firearm, an intercom system and a police scanner. Testimony presented at a hearing on Craft's motion to suppress established that the back door of Craft's residence was broken open with a sledge hammer within seconds of, or simultaneously with, the officers' announcement, "sheriff's department, search warrant." The trial court ruled, and we agree, that if the officers knocked and announced their authority and purpose, they did so with such haste that Craft did not have a reasonable opportunity to respond. Therefore, the officers did not follow the knock-and-announce procedures set forth in section 933.09, Florida Statutes (1993).[1]
The importance of following the knock-and-announce procedures was underscored by the supreme court in State v. Bamber, 630 So.2d 1048, 1051-1052 (Fla. 1994), when it reiterated the basis for the knock-and-announce requirement as set forth in its earlier opinion, Benefield v. State, 160 So.2d 706, 709 (Fla. 1964), wherein the court said:
Entering one's home without legal authority and neglect to give the occupants notice have been condemned by the law and the common custom of this country and England from time immemorial. It was condemned by the yearbooks of Edward IV, before the discovery of this country by Columbus. Judge Prettyman for the court of appeals in Accarino v. United States ... discussed the history and reasons for it. William Pitt categorized a man's home as his castle. Paraphrasing one of his speeches in which he apostrophized the home, it was said in about this fashion: The poorest pioneer in his log cabin may bid defiance to the forces of the crown. It may be located so far in the backwoods that the sun rises this side of it; it may be unsteady; the roof may leak; the wind may blow through it; the cold may penetrate it and his dog may sleep beneath the front steps, but it is his castle that the king may not enter and his men dare not cross the threshold without his permission.
This sentiment has moulded our concept of the home as one's castle as well as the law to protect it. The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the purpose of his call. There is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. This is why the *1013 law protects its entrance so rigidly. The law so interpreted is nothing more than another expression of the moral emphasis placed on liberty and sanctity of the home in a free country. Liberty without virtue is much alike a spirited horse, apt to go berserk on slight provocation if not restrained by a severe bit. (citations omitted).
Against this historical backdrop, we examine the case before us. The officer peril exception was one of four exceptions to the knock-and-announce rule recognized by the supreme court in Benefield.[2] Thirty years later, in Bamber, the supreme court once again recognized that, although a strong presumption exists against the validity of a no-knock search, such searches are lawful when certain exigent circumstances exist at the scene. 630 So.2d at 1052. However, in order to determine whether the circumstances of a given case constitute a valid exception, the court found that a particularity approach was favorable to a blanket approach for assessing the reasonableness of an officer's belief regarding whether an exigent circumstance was present. The court held that an officer's belief must be based on particular circumstances existing at the time of entry and must be grounded on something more than his or her generalized knowledge. Id. at 1055. Thus, in the present case, we must determine whether the officers had good reason to believe they might be in peril at the time of the execution of the search warrant.
The only evidence presented to justify the officer peril exception was the testimony of two narcotics officers regarding their separate contacts with two separate confidential informants who, in turn, had contact with Craft. This evidence was the sole basis of the entry team being told that Craft was known to carry weapons and that the execution of the warrant was to be a no-knock entry.[3] The first officer related two incidents which occurred two years prior to the execution of the search warrant that is the subject of this appeal. This officer testified that he had a confidential informant make a controlled drug buy from Craft in September of 1989. Approximately one week later, the CI attempted a second buy but did not complete it. Over defense objection to the hearsay, the officer testified that the CI stated that Craft ran him away from the house at gunpoint. This officer was unable to establish the CI's reliability. He acknowledged that he had used the CI only once, prior to these encounters with Craft, and that he was never used again. Also, no charges were ever filed against Craft as a result of the controlled buy. During the motion hearing, the trial judge observed that there was a basic problem with this CI not being reliable.
The following exchange of questions and answers between the prosecutor and the officer regarding the 1989 incident occurred during the hearing:
Q. And did you at the time this occurred in '89, did you do anything subsequent thereto to confirm anything that the informant might have told you?
A. Yes, sir.
Q. And what was that?
A. I don't know how to particularly answer that question. Street knowledge and, you know, knowledge from other officers in reference to him having carried a weapon on his person.
THE COURT: I can't hear you.
A. Other officers and street knowledge in reference to information obtained, being obtained from these people that the suspect or the defendant was carrying *1014 weapons, had one on his person at the time of this incident.
The second officer testified that he had a CI make the controlled drug buy that was outlined in the probable cause statement for the search warrant executed on September 26, 1991. Over defense objection, the officer testified that the CI told him that Craft had listening devices with which he could hear anybody approaching the house and that he had a police scanner. When asked why the emergency response team was used to execute this search warrant, the officer responded that, based on the information given to him by the CI, Craft was known for violence and has been known to be in possession of firearms. When asked if the basis for the CI's knowledge of the firearms was by observation, the officer replied, "That's correct." The trial court found that the evidence presented by the two officers was sufficient to establish an officer peril exception. Applying the particularized approach mandated by Bamber, we disagree.
The information provided by the CI in 1989 was too unreliable. Even if the reliability of the CI had been established, the information was too stale to provide a reasonable belief that there would be officer peril two years later in 1991. Likewise, the second CI's hearsay statements that Craft was known to possess firearms was insufficient to support the officer peril exception. While the reliability of this CI may have been established, the state did not establish that it was reasonable for the officer to rely upon the information provided as a justification for not complying with the knock-and-announce procedure. No testimony was presented regarding when the CI obtained the information that Craft was known to possess firearms, from whom this information was obtained, how it was obtained, when any personal observations may have been made, what they were, or where they were made. It may be that the officer could have supplied additional testimony to establish a basis for a reasonable belief that the officers' peril would have been increased had they complied with the knock-and-announce requirement at the time of the execution of the warrant. However, such testimony was not presented. Other than the hearsay from an unreliable informant regarding an incident in 1989, the testimony presented may be characterized as the type of generalized knowledge that the Bamber court found to be insufficient.
Further, a CI's statement that Craft had listening devices and a police scanner does not justify entry without knocking and announcing. Given that the purpose of the knock-and-announce statute is to give notice to the occupants that law enforcement officers are present, the fact that Craft may have been able to independently obtain this information shortly before the officers would be required to announce their presence does not, in and of itself, give rise to a reasonable belief by the officers that they would be in danger. It is significant to note that none of the officers provided any case specific explanation that reasonably caused them to believe that Craft may harm them.
This case is distinguishable on its facts from our previous decision in State v. Avendano, 540 So.2d 920 (Fla. 2d DCA 1989), where a reliable CI provided information that the defendant and two others would be armed on the morning of the execution of the search warrant in case something went wrong with the planned drug deal. In the present case, the evidence was merely speculation based upon stale and generalized information. An officer's belief that he or she may be in peril if the knock-and-announce procedure is followed should be based on particular circumstances existing at the time of the entry and should be grounded on something more than generalized knowledge that a defendant has been known to carry a weapon at some time in the past. See Bamber, 630 So.2d 1048; Benefield, 160 So.2d 706.
Accordingly, we reverse and remand with directions that the defendant be discharged because the issues raised in the motion to suppress were dispositive.
FRANK, C.J., and PATTERSON and FULMER, JJ., concur.
NOTES
[1] Section 933.09 provides: "The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of his authority and purpose he is refused admittance to said house or access to anything therein."
[2] "[W]e conclude that even if probable cause exists for the arrest of a person, our statute is violated by an unannounced intrusion in the form of a breaking and entering any building, including a private home, except (1) where the person within already knows of the officer's authority and purpose; (2) where the officers are justified in the belief that the persons within are in imminent peril of bodily harm; (3) if the officer's peril would have been increased had he demanded entrance and stated the purpose, or (4) where those within made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted." 160 So.2d at 710.
[3] Officers testified that the search warrant was a "no-knock warrant." No-knock warrants are not authorized in Florida. State v. Bamber, 630 So.2d 1048, 1050-1051 (Fla. 1994). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597061/ | 581 F.Supp. 1079 (1984)
Mary M. LOVE, Plaintiff,
v.
ALAMANCE COUNTY BOARD OF EDUCATION, Defendant.
No. C-79-456-G.
United States District Court, M.D. North Carolina, Greensboro Division.
February 29, 1984.
*1080 J. LeVonne Chambers of Chambers, Ferguson, Watt, Wallas, Adkins & Fuller, P.A., Charlotte, N.C., for plaintiff.
Paul H. Ridge of Ridge, Roberson & Richardson, Graham, N.C., and Martin N. Erwin of Smith, Moore, Smith, Schell & Hunter, Greensboro, N.C., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
HIRAM H. WARD, Chief Judge.
The Court tried the claims of plaintiff Mary M. Love, a black female, against defendant Alamance County Board of Education (Board) in this action without a jury on December 12-16, 1983. Plaintiff alleged in her Complaint (July 10, 1979) that the Board failed to promote her to various principal and assistant principal positions within the school system because of her race *1081 and/or sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), 42 U.S.C. §§ 1981, 1983 and the Thirteenth and Fourteenth Amendments of the Constitution. In her Proposed Findings of Fact and Conclusions of Law filed on September 23, 1983, plaintiff represented (in footnote 6) that she could obtain appropriate relief under Title VII and sections 1981 and 1983 and that the Court need not address her claims for relief under the Thirteenth and Fourteenth Amendments.
The parties submitted voluminous documentary evidence during the course of the trial. Having duly considered the parties' oral and documentary evidence, the Court now enters its Findings of Fact and Conclusions of Law thereon. Fed.R.Civ.P. 52.
FINDINGS OF FACT
1. Mary M. Love, the plaintiff, is a black female who began her employment as a teacher in the Alamance County school system in 1957. Prior to her employment in the system plaintiff received a B.A. degree from Winston-Salem State University (WSSU), a predominately black university in North Carolina, and taught briefly in other school systems. In 1959 she received a M.A. degree in elementary education from North Carolina Central University, another predominately black school in this state. Plaintiff's first assignment within the system was at West End Elementary School where she served as an elementary education teacher. The school system was segregated until the late 1960's. Beginning with the 1969-70 school year, plaintiff transferred to an integrated school setting and taught reading at E.M. Yoder and South Mebane Elementary Schools. At that time plaintiff took summer courses at the University of North Carolina Chapel Hill, but received no degree. Beginning with the 1971-72 school year plaintiff was placed permanently as a reading teacher at South Mebane Elementary School where Robert Gordon was her principal. At this time plaintiff began taking courses in school administration at North Carolina A & T University, a predominately black school, and received a principal certification, grades K-12, from the North Carolina Department of Public Instruction in May, 1972. Prior to receiving the certification plaintiff served as an intern under Robert Gordon at South Mebane Elementary School. From 1972 until 1976 plaintiff took a few education courses in reading at the University of North Carolina Greensboro in order to acquire certification in reading. After 1972 plaintiff has only six hours of non-in-service education courses.[1]
2. On February 12, 1970, plaintiff submitted an application to John Deason, the Superintendent, for the position of Coordinator of Student Teaching. Defendant's Exhibit 25, plaintiff's Personnel Record, Letter dated February 12, 1970 (hereafter Personnel Record). Judith Wish was selected for the position. Plaintiff testified that she was better qualified because she had approximately ten more years of teaching experience and was more familiar with WSSU, a college with which the Coordinator must work closely and not a newcomer to the school system. Wish had equivalent degrees and had taught about four years. In addition, Wish had a certification in supervision, the Coordinator's primary function. Defendant's Exhibit 43.
3. On July 1, 1971, Dr. Robert A. Nelson became the superintendent of the school system, replacing John Deason. Nelson held that position until April 30, 1983.
4. C. David Green was the Assistant Superintendent for Personnel from 1971 to 1978. From 1978 until August, 1979, Robert Gordon held this position and was replaced by Robert Stockard. R. Hardy Tew served as the Assistant Superintendent for Instructional Support Services from 1971 up to the trial. The Assistant Superintendent for Physical Support Services from September, 1979, to the date of trial was Charles Jefferies, Jr., a black.
*1082 5. The school system began desegregating in the late 1960's and was in the process of desegregating in 1971 when Nelson became the Superintendent. Plaintiff testified that by 1970 the system had desegregated the teaching staff. The Office of Civil Rights (OCR), a federal agency with significant powers over school desegregation efforts, accepted the system desegregation plan in September, 1971. Plaintiff's Exhibit 11(b), Letter dated August 5, 1974, from OCR Director to Nelson. In August, 1974, OCR advised Nelson of its criticism of an interdistrict transfer policy which it linked to excessive black enrollment at two schools and its belief that blacks were under-represented among school administrators. OCR demanded corrective action before the 1974-75 school year to ensure continued receipt by the system of Emergency School Aid Act (ESAA) funds. Plaintiff's Exhibit 11(b).
6. Nelson testified without contradiction that no black principal was displaced or dismissed as a result of desegregation rezoning after his arrival.
7. On May 26, 1975, the Board adopted an Affirmative Action Plan (Plan) (Plaintiff's Exhibit 11). The purpose of the plan was "to restore the staff of principals (including principals and assistant principals) and coaches of the School System to its predesegregation composition of a 20 percent minority coaching staff and a 20 percent minority principals staff.." Plan § I. The Plan specifically provided that until the 20 percent goal is reached for principals, the system will hire at least one new black principal for each new white principal hired. Plan § II. Of course, the Plan did not require the system to hire anyone who did not meet the system's nondiscriminatory employment requirements. Furthermore, pursuant to the Plan, the system would be relieved of all the Plan's requirements and would not be required to maintain a 20 percent minority composition once the 20 percent goal was obtained. Plan § II.
8. The system did not meet some of the goals or requirements of the Plan. At section III A.9. the Plan provides that "[p]resently-employed subordinate personnel shall be automatically considered for promotion when vacancies occur in subordinate positions." The practice within the system was and continued to be consideration of all persons who expressed an interest in promotion to a new position. There is no evidence anyone within the system attempted to hide the existence of openings. On the other hand, the Central Office of the school system disseminated Notices of Vacancies concerning openings in principalships at least as early as 1971 to in-state colleges and all schools within the system. Defendant's Exhibit 18; Plaintiff's Exhibit 5 at 2-3.
9. The system did not fulfill the requirements that hirees must be evaluated "pursuant to written, objective, and lawful employment criteria." Plan § III C.1. Nelson testified that the various selection procedures utilized by the system involved predominately subjective evaluations of applicants. Nelson also testified that he perceived such evaluations as essential and irreplaceable. Contrary to section III C.3. the system never issued explanations as to "why the successful candidate was the most appropriate person for the position." (To a very great extent those explanations have been the subject matter of trial testimony.) Section III C.2. required standardized written evaluations in order to permit accurate comparisons between applicants. The system did not fulfill this requirement because it never developed written evaluations for principal and assistant principal positions. However, the procedures utilized were standardized. All witnesses with experience in the selection procedure testified that applicants were subjected to the same questioning and analysis by Nelson and selection committees.
10. Contrary to sections III D.1. & 3. the system never developed a written analysis of its recruitment, hiring, and promotion practices "in an effort to reveal any factors which would tend to impede the System's ability to achieve ..." 20 percent representation. In light of the purpose of *1083 this analysis, its need is questionable because during the 1975-76 school year immediately following adoption of the Plan in May, 1975, the system successfully hired principals on a 1:1 ratio and achieved the 20 percent goal. As previously noted, once 20 percent representation was achieved among principals (which includes assistant principals) these requirements were lifted.
11. On July 25, 1975, OCR waived the system's ineligibility for ESAA funds based on the system's assurances that it would implement the Affirmative Action Plan, remedy a discriminatory demotion of James Carter, and remedy any remaining effects of a former dual pattern of student assignment. Plaintiff's Exhibit 11(a), Letter dated July 15, 1975, from OCR to Nelson. There is no evidence that OCR or any other federal or state agency has levelled any criticism at the school system relating to minority concerns or that the system is not completely eligible for ESAA funds since July, 1975.
On September 28, 1978, a group of black parents led by plaintiff's mother, Annie Miles, informed the Board of their concerns regarding the promotion of female nonwhite employees into administrative positions. Plaintiff's Exhibit 15. Walstein Snyder, a Board member, recalled this occasion and the Board's subsequent investigation of Miles' complaint, which revealed in the Board's opinion no justification for the complaint. On another occasion (date unknown) the Human Relations Committee in Alamance County expressed to Nelson its concern about requests for more blacks in administrative jobs. Nelson relayed this concern to the Board.
12. Documentary evidence substantiates Nelson's testimony that the system achieved 20 percent black representation among principals and assistant principals in 1976. In the 1976-77 school year there were blacks filling six of the thirty principal and assistant principal slots within the system. Plaintiff's Exhibit 21e, Report to Equal Employment Opportunity Commission (EEOC). This percentage continued in subsequent years. Plaintiff's Exhibits 21f & h, Reports to EEOC. During the 1975-76 school year the system hired two blacks (Terry Dixon and Melvin Cannon) and two whites as principals. It also hired another white as an assistant principal. A black, Fred Smith, was offered an assistant principal position at Graham High School in 1975, but he refused the offer.
13. When Nelson became the Superintendent he studied selection procedures for administration positions in other systems and developed a selection procedure for principals and assistant principals. Selections of assistant principals were made essentially by the principal of the respective school following interviews by the principal and the Assistant Superintendent of Personnel. A principal's recommendation to the Superintendent that a person be hired as an assistant principal was tantamount to that person's selection.
Applications for principal positions were first screened by Nelson and Green, the Assistant Superintendent of Personnel. Subsequently, a committee of Nelson, Green, and Tew, the Assistant Superintendent for Instructional Support Services, interviewed the selected or screened applicants. Following the interviews, the committee would make a recommendation to the Board. The above-described procedures were in effect until 1977.
14. In 1977 Nelson decided to substantially alter the selection process for principals.[2] The new procedure involved initial screening by the Superintendent and the Assistant Superintendent for Personnel of applications, interviews by a committee of four to six people and consisting usually of Central Staff personnel and principals selected by the Superintendent and the Assistant Superintendent of Personnel, interviews by the Superintendent of some or all of the persons recommended by the Committee, and, finally approval or rejection by *1084 the Board of the Superintendent's recommendation.[3]
15. In support of her allegations plaintiff claims that the relatively unstructured committee procedure facilitated discrimination against her because of her sex and/or race. Dr. E. Edmund Reutter, Jr., Ph.D. in Educational Administration, provided deposition testimony (Plaintiff's Exhibit 33) critical of the committee interview procedure. He pointed to the lack of or inadequacy of job descriptions and written criteria in that there could be no objective analysis of candidates. He advised that the written forms (Defendant's Exhibit 32 & Plaintiff's Exhibits 22 & 23) or selection criteria used by committees were too broadly phrased and not designed to insure that all committee members have the same understanding of terms or criteria. Plaintiff points to the absence of oral or written instructions by Nelson to committees as to how to judge and compare applicants as further evidence that the selection process was a charade. Nelson testified that he never specifically told committees about the Affirmative Action Plan (which was not in effect as to principals in 1977 and later).
16. The Court finds that Nelson, Green, Tew, the committees, and other selecting officials honestly attempted to use their best professional judgment when recommending applicants to higher authorities. The Court finds that the committee procedure adopted in 1977 did not tend to disfavor blacks or females. As a rule the staffing of committees included blacks and women, including black females. Defendant's Exhibit 5, Chart of Committee Memberships. The Court credits Nelson's testimony that the motivations behind the procedure change in 1977 were (1) the sheer number of interviews, (2) the belief that committees would naturally counteract the influence of bias, and (3) the belief that committees would likely select successful people. Nelson testified that his singular instruction to committee members was to use their best professional judgment when selecting applicants for recommendation. Mary Murray, a black female and committee member who interviewed the plaintiff, testified that members in fact did rely on their best professional judgment when selecting applicants for recommendation. Anna Bass, another black female and committee member who interviewed plaintiff, testified that all applicants were asked basically identical questions. She described these questions as fair and job-related. The testimony of Charles Jefferies, a black male and committee member who interviewed plaintiff, concurred with that of Murray and Bass. Each committee member had input into an overall or consensus evaluation by the committee. Even the plaintiff agreed that the questions of the several committees before which she appeared were similar and that each committee member would ask questions concerning matters within that member's expertise, i.e., Charles Jefferies would ask about physical plant matters. Robert Stockard, a committee member and a white male, testified in concurrence with the above witnesses that all applicants were asked the same questions which grew out of each member's specialty and that members used their best professional judgment in making selections.
17. Statistical evidence gives no support to plaintiff's contentions about the selection procedures. Defendant provided expert testimony from Dr. Jane Harworth, Ph.D., an expert in statistical analysis. Dr. Harworth examined applicant flow and hiring data for 1975-1983 (Defendant's Exhibit 8) and performed a binomial distribution analysis. When the raw data involved small pools, she utilized the Fisher's Exact Test which she described as a more precise version of the student T test. Dr. Harworth testified that there is no statistical support for the existence of a non-neutral policy or of a pattern or practice of discrimination against blacks or females. Her analysis (Defendant's Exhibit 8) shows that the actual numbers of black or female hirees were within the range of two standard *1085 deviations. She further observed that the success rate of blacks and females exceeded whites and males, respectively. Defendant's Exhibit 8, Table 11 (based on applicants who received job offers). Plaintiff offered no statistical evidence disputing Dr. Harworth's calculations or conclusions.
18. In July, 1971, plaintiff applied for the principalship at Sylvan Elementary School. Plaintiff was interviewed and rated by Green as a good candidate if she could meet the certification requirements. Plaintiff's Exhibit 30. Nelson filled the position by transferring Jack O'Kelly, a black principal, into this position which a white was vacating. Plaintiff alleged sexual discrimination against her. The Court finds that there was no sexual discrimination because, not only did plaintiff lack a principal certification or, apparently, even provisional principal certification, plaintiff admitted on cross-examination that O'Kelly, who had several years of experience as a principal, was better qualified. Defendant's Exhibit 44.
19. Around June, 1972, plaintiff applied for the principalship at E.M. Yoder Elementary School. Nelson recommended to the Board that Dr. Douglas Jones be hired because Nelson believed he was the best candidate. Although plaintiff pointed out that unlike Jones she was not a newcomer to Alamance County, she testified that Jones who held a doctorate in Educational Administration was better qualified. The Court perceives no evidence of discrimination, sexual and racial, in Jones' hiring.
20. On June 20, 1972, Green advised plaintiff by letter that she did not get the E.M. Yoder position, but also stated that her "application will remain active and given consideration should other vacancies develop." Personnel Record, Letter dated June 20, 1972. Plaintiff testified that in April, 1972, she submitted a blanket application to Green to be considered for all administrative job openings. This letter is not in her Personnel Record although she testified that she recalled seeing it there in 1978. Plaintiff never mentioned to anyone the existence of the blanket application prior to this lawsuit. Nelson has no recollection of such a letter. Nelson also testified that the system expected people to make known their specific interest in openings before they would be considered for an opening. The system never encouraged general application letters. Plaintiff was well aware of this policy. She testified that she knew she should make applications for specific jobs and that she did apply for jobs she believed she could do. The Court must conclude that plaintiff did not rely upon Green's gratuitous statement or upon the 1972 blanket application, if it existed.
21. On June 30, 1974, plaintiff applied for the principalship at Pleasant Grove Union School. Personnel Record, Letter dated June 30, 1974. Nelson recommended Robert Vaughn, who had three years prior experience as an assistant principal, to the Board. Nelson did not consider plaintiff because she applied for the position when it had been filled. Personnel Record, Letter dated July 1, 1974, from Green to plaintiff. Hence, the plaintiff never effectively applied for this position.
22. In the July 1, 1974, letter from Green to plaintiff in which he advised her that she had applied late for the Pleasant Grove Union School position, Green advised that they should continue discussing plaintiff's becoming the new Coordinator of Student Teaching, the same position plaintiff had applied for in 1970. Subsequently, Nelson selected plaintiff in the summer of 1974 to serve as the Coordinator beginning in the 1974-75 school year. Plaintiff replaced a white female, Priscilla Starling.
23. As the Coordinator plaintiff was responsible for placement and evaluation of all student teachers within the school system. However, because of a contract between the system and WSSU, plaintiff had special responsibilities concerning student teachers or student interns from that university. The contract obliged plaintiff on behalf of the system to assist WSSU students in finding housing and transportation. She also taught WSSU students.
24. Green, the Assistant Superintendent of Personnel, evaluated plaintiff's performance *1086 in January and June, 1975. Personnel Record, Evaluations dated January 30, 1975, and June 5, 1975. Overall Green evaluated plaintiff's performance as satisfactory in the January evaluation, but had some criticisms concerning plaintiff's punctuality, staying in contact with the Central Office when out of her office, and assignment of student teachers to non-approved teachers without prior review by the principal of the school affected. In the June evaluation Green stated that plaintiff had done a very good job but again criticized her punctuality as marginal but not unsatisfactory.
25. Nelson never personally evaluated plaintiff's performance as the Coordinator, but he received reports from others about her performance. Nelson testified that he believed plaintiff held promise or potential to be an effective administrator, but that her non-innovative performance as the Coordinator caused him to lose some confidence in her abilities. Green's evaluations in fact reflect no innovations or improvements in the student teaching program, although Green commented that plaintiff had done a good job. Plaintiff offered no evidence contradicting Nelson's perception of her performance as good, but not innovative.
26. The Coordinator position was terminated at the end of the 1974-75 school year because WSSU had chosen not to renew its contract. Termination of the contract cutoff funding by the university for the position. Termination was not plaintiff's fault. Aware of the termination, plaintiff began applying for other administrative positions to avoid a return to the classroom which would mean a drop in salary. She was not successful in these efforts and consequently accepted a teaching position at Woodlawn Middle School.
27. The parties presented evidence concerning a principal position opening at Graham High School in the summer of 1975. Plaintiff testified that she had no complaint about the position which was awarded to James Jenkins, a white male. Jenkins had several years prior experience as a principal and assistant superintendent. Defendant's Exhibit 48.
28. Plaintiff applied for the assistant principal position at Graham High School in July, 1975. Personnel Record, Letter dated July 29, 1975. Kenneth Stanley, a white male, received and accepted a job offer for this position, although the position was initially offered to Fred Smith, a black male. Although plaintiff testified that she has no complaint about this position, she also testified that she was better qualified than Stanley because she was not a newcomer to Alamance County. Defendant's Exhibit 47 reveals that Stanley had prior experience as a principal, assistant superintendent, and supervisor of secondary education in other school systems.
29. In May, 1975, plaintiff applied for the position of Director of Pupil Support Services. Personnel Record, Letter dated May 20, 1975. This position was offered to and accepted by Dr. Edward Robinson, Ph.D. in guidance and counseling. Robinson had prior experience in several administrative positions at two universities. Defendant's Exhibit 49. Plaintiff stated that she had no complaint about this position.
30. On August 5, 1975, plaintiff applied by letter for the principalship at South Mebane Elementary School. Personnel Record, Letter dated August 5, 1975. Frank Clements, a white male, received the position. Plaintiff contended that she was better qualified for the job. She pointed out that Clements had no supervisor certification, which she had, and that he received his principal certification three years later than she did. Plaintiff testified that she completed her principal internship at South Mebane under Robert Gordon. Plaintiff further noted that Clements' experience was primarily on the high school and college levels, unlike hers at the elementary level, and that she had taught at South Mebane in the early 1970's.
Nelson, who recommended Clements to the Board, was of the opinion based upon his professional judgment that Clements was the preferable applicant. Nelson had no recollection of talking with plaintiff *1087 about the position and plaintiff could not recall being interviewed for the position. Nelson believed Clements was more qualified because (1) he had prior administrative experience as an assistant principal and experience as a guidance counselor, (2) he was in a doctoral program, (3) he was an analytical thinker and sought solutions satisfactory to all concerned, (4) and he had supervised student teachers in elementary schools while a teaching assistant at a university. See Defendant's Exhibit 50 (qualifications comparison of plaintiff and Clements).
31. On June 3, 1977, plaintiff applied for an assistant principal position opening at Graham High School. Personnel Record, Letter dated June 3, 1977. Charles Morris, Jr., was hired. Plaintiff was not considered for this position because she submitted her application approximately one month after the application deadline of May 11, 1977. Personnel Record, Letter dated June 16, 1977. On cross-examination she acknowledged this fact.[4]
32. In the summer of 1977 the principalship of North Graham Elementary School became open. Plaintiff applied on June 8, 1977. Personnel Record, Letter dated June 8, 1977. At this time Nelson had converted to the committee system for selecting principals. The committee which interviewed applicants, including plaintiff, for this position was the first such committee. The committee members included two males and three females, two of whom were blacks (Anna Bass and Mary Murray). Defendant's Exhibit 5.
Nelson could not recall whom the committee recommended or the people he interviewed among those recommended. Nelson selected Barbara Tew whom he considered more qualified than plaintiff. Although Tew had fewer certifications than plaintiff, she had taught almost as long as plaintiff and had about nine years of prior experience as a principal. Defendant's Exhibit 53. Nelson especially noted Tew's prior experience and reputation in the field of open education and her role in the development of a pilot kindergarten program as important factors in his decision. Anna Bass did not recall plaintiff as being an applicant recommended by the committee to Nelson although she recalled the committee recommending Tew, Fred Smith, a black, and four others to Nelson. Mary Murray testified in her deposition that early in the interview process she got the feeling Tew would be selected ultimately. However, she also stated that the committee looked at each candidate and that plaintiff was not as qualified as Tew in terms of experience. Plaintiff's Exhibit 1d, Deposition of Mary Murray at 15-19 & 24. Even plaintiff acknowledged Tew's better qualifications for the job.
33. Based on the foregoing findings the Court concludes that plaintiff was not the victim of racial discrimination in the selection of Tew.
34. During the selection procedures for the North Graham Elementary School position, plaintiff was referred on June 27, 1977, to the B. Everett Jordan Elementary School principalship opening. Personnel Record, Letter dated June 8, 1977. Green advised plaintiff of the opening, which was the result of Tew's vacating that position for her new position at North Graham. All unsuccessful applicants for the North Graham position were similarly referred. The North Graham interview committee also served as the interview committee for B. Everett Jordan. All applicants for the position were female and plaintiff was the only black.
35. The committee interviewed plaintiff. There are no records on whom the committee recommended. Anna Bass, a committee member, recalled that plaintiff and *1088 Jane Burke were persons recommended by the committee. Nelson recommended Jane B. Burke to the Board for the job. Nelson did not recall interviewing plaintiff, however, plaintiff testified that Nelson did interview her. Mary Murray, a committee member, testified that all applicants received fair consideration. Plaintiff's Exhibit 1d at 36.
36. Nelson testified that he considered Burke better qualified than plaintiff for the position. Nelson stated that Burke was more energetic and had a reputation for putting in extra hours and that she was articulate on educational issues. Nelson noted that from 1974 to 1977 Burke had been a teacher and assistant principal at Southern Middle School in Alamance County and that at the time she had almost earned her second master's degree. (Burke testified that she in fact had the degree, in administration, at the time.) Burke had been a teacher for about ten years. One particular factor in Nelson's decision was Burke's support of open education which Nelson strongly favored as an educational theory. She had taught in an open classroom setting at South Mebane Elementary School during 1971-74. B. Everett Jordan had an open classroom/team teaching structure. Plaintiff lacked similar experience.
Nelson selected Burke although she lacked a principal certification at the time. Apparently she had recently earned a M.A. degree in administration but lacked one course in sociology and an exam before being qualified for a principal certification. (Certification was not required to be an assistant principal.) However, the State had given Burke a provisional principal certification which qualified her to serve as a principal for one school year. (Burke earned a principal certification during the first semester of the 1977-78 school year.)
Plaintiff testified that she was better qualified because (1) she was not a newcomer (i.e., Burke entered the system in 1971 while plaintiff entered in 1956); (2) she had a M.A. Degree in elementary education; (3) she did volunteer work for the school system, and (4) most importantly, she already had her principal certification (since 1972) while Burke only had a provisional certification. Mary Murray testified that she felt plaintiff was more qualified because she was not a newcomer, had more experience, and already had the required certification. However, Murray testified in her deposition that she had believed at the time of the selection process that Burke would be hired because she was well respected by people who would be influential in the final selection. Plaintiff's Exhibit 1d at 35. Respect for Burke is not discrimination against plaintiff.
37. Defendant's Exhibit 52 lists the paper qualifications of Burke and plaintiff. Looking at that alone the Court would be hard pressed if in Nelson's shoes to choose the better qualified. However, Nelson's testimony about why he favored Burke for the job strikes the Court as credible.[5] Racial discrimination was not a motivating factor. Nelson chose a person recommended by the committee and possessing qualifications which he considered important for the position. Finally, since blacks were highly represented on the committee, it is extremely unlikely the committee discriminated against plaintiff.
38. In July, 1977, an assistant principal position at Southern Middle School became open. Plaintiff did not apply and makes no complaint about it. Sheila Bowles, a black female, was hired.
39. On September 21, 1978, plaintiff applied for the principal position at B. Everett Jordan Elementary School. Personnel Record, Letter dated September 21, 1978 (at this time Robert Gordon, now a Ph.D., had replaced Green as Assistant Superintendent of Personnel). Plaintiff was the only black out of nine applicants. Defendant's Exhibit 3. There was a total of three female applicants. The applicants were interviewed *1089 by a committee consisting of four people. There were two females, Mary Murray and Jane Burke. Gordon and R. Hardy Tew were the two males on the committee. Defendant's Exhibit 5. The committee as a whole recommended three persons in preferential order: (1) Willis Wheeler, (2) Joe Shull, (3) plaintiff. All the individual committee members ranked plaintiff as third except Gordon who ranked her second. They unanimously recommended Wheeler as the first choice, although he was a newcomer to the system and had been a teacher only since 1973. Defendant's Exhibit 15.
Nelson unilaterally eliminated Shull, a white male, from consideration for some unspecified reason. Nelson interviewed Wheeler, a white male, and plaintiff and selected Wheeler. Nelson explained that he chose Wheeler because of his superior performance during the interview along with his background which included prior experience as an assistant principal from 1976-78 at an elementary school. Nelson also considered Wheeler's familiarity with computers as a plus factor. Plaintiff's Exhibit 1b, Deposition of Robert A. Nelson at 72-73. By comparison, Nelson described plaintiff's responses to his interview questions (the same ones he posed to Wheeler (Plaintiff's Exhibits 22 & 23)) as vague, incomprehensible, and/or superficial. After the interview plaintiff confessed to Nelson her inarticulateness. Plaintiff's Exhibit 22; Defendant's Exhibit 15. At the trial, plaintiff stated that interviews make her uncomfortable. In her deposition she stated that she possibly had not answered Nelson's questions in the manner Nelson thought she should. Plaintiff's Exhibit 1a, Deposition of Mary M. Love at 29-30.
40. In light of the foregoing findings the Court finds that plaintiff's failure to obtain the B. Everett Jordan principalship in 1978 was not caused by racial or sexual discrimination.
41. Plaintiff filed a charge of racial and sexual discrimination with the EEOC on October 27, 1978. The charge was directed at the system's hiring of Wheeler in the fall of 1978 for the B. Everett Jordan position.
42. In November, 1978, the principalship at E.M. Yoder Elementary School became open. Carl Herman, a white male, was recommended by a committee of two males and two females, one black, was hired. Defendant's Exhibits 14 & 68. Plaintiff testified she was more qualified. However, the committee and Nelson did not consider plaintiff because she did not apply.[6]
43. Plaintiff filed this lawsuit on July 10, 1979, after receiving a right-to-sue letter on June 22, 1979. Plaintiff's Exhibit 3.
44. Plaintiff did not apply for the principalship at Southern Middle School which was filled by Gretchen Briggs in August, 1980. Defendant's Exhibit 27.
45. Plaintiff did not apply for the principal position at Altamahaw-Ossipee Elementary School which Sheila Bowles filled in August, 1980. Defendant's Exhibit 28.
46. Plaintiff applied for the principalship at E.M. Holt Elementary School in June or July of 1980. A committee of two males and three females, one black, interviewed the applicants and submitted plaintiff as its fifth preference among five persons recommended to Nelson. Defendant's Exhibit 26. Nelson interviewed only the top three recommended. Plaintiff testified she has no complaint about the hiring of Frank Clements.
47. During the interview process for the E.M. Holt position in July, 1980, Robert Stockard, who replaced Gordon as the Assistant Superintendent of Personnel, contacted plaintiff about an assistant principal opening at Western Middle School for the 1980-81 school year.[7] The school principal, *1090 Wilma Parrish, subsequently interviewed plaintiff for the job at the Central Office. Nelson testified that Parrish informed him that plaintiff withdrew her application because she was not interested in the mechanical duties of the assistant principal at Western Middle School. Plaintiff acknowledged in her testimony that Parrish described certain mechanical duties, but denied expressing a disinterest in the job to Parrish or Stockard. Stockard's testimony corroborates Nelson's. Stockard testified that plaintiff visited his office after her interview and advised him that she was not interested in the position because of the mechanical duties. Whether or not plaintiff intended to express disinterest in the position, Parrish and others understood her not to want the position.
48. On July 29, 1981, plaintiff applied for the principalship at North Graham Elementary School. Personnel Record, Letter dated July 29, 1981. An interview committee consisting of four males (one black) and one female interviewed the applicants including plaintiff. The committee recommended five people including one black, Clyde Lynn, but not plaintiff. Under "Remarks" on plaintiff's interview sheet dated August 7, 1981, the committee commented that plaintiff's leadership qualities were questionable, that she lacked assertiveness, and that plaintiff lacked knowledge of the principal's role. Defendant's Exhibit 33. Two committee members who were witnesses, Stockard, a white, and Jefferies, a black, testified that the committee's rating of plaintiff was by consensus. Jefferies indicated that Sam Fowler, the committee's first preference and the person hired, had a better understanding of the principal's role at least in those areas of interest to Jefferies, i.e., fiscal, food, transportation. Since the committee did not recommend plaintiff, Nelson did not consider plaintiff. Plaintiff's testimony that Fowler's prior experience had been at the high school level and in biology (although he had served as an assistant principal for two years at Southern High School) in no manner disputes the committee's rather cutting assessment of plaintiff.
49. On August 26, 1982, plaintiff applied for the principalship at Sylvan Elementary School. Personnel Record, Letter dated August 26, 1982. The committee, which consisted of four males (one black) and one female, scheduled plaintiff's interview for 3:45 p.m. on September 20, 1982. The committee report (Defendant's Exhibit 26) indicates plaintiff cancelled the interview around noon of September 20. Stockard, a committee member, testified that plaintiff's was not considered because she cancelled her interview. Plaintiff admitted that she cancelled the interview although her motivation to cancel was a statement by Lacose Edwards, Jr., an assistant principal at Woodlawn Middle School where plaintiff taught reading, to the effect that another applicant, Buford Frye, was sure to be selected. (In fact, Frye was the top choice of the committee which also recommended a black, Clyde Lynn. The Committee "highly recommended" Frye. Defendant's Exhibit 36.)[8] Edwards' prediction of Frye's favored status by an integrated interview committee and/or Nelson is extremely slim evidence of discrimination. In any event, the committee did not consider plaintiff because she withdrew from consideration.
50. On July 16, 1983, plaintiff applied for a principalship at South Mebane Elementary School. Personnel Record, Letter dated July 16, 1983. The committee which consisted of four males (one black) and one female recommended four people, all male including one black, Lacose Edwards, Jr., the assistant principal at Woodlawn Middle School. On the committee's interview record the committee noted plaintiff's many years of experience in reading and sincere interest in a principalship, but also *1091 her lack of experience in administration. Defendant's Exhibit 38. Stockard, a committee member, testified that plaintiff poorly answered his question concerning what steps plaintiff would take with an inadequately performing teacher. The black male on the committee was Bowman Burton, who was plaintiff's principal at Woodlawn Middle School. Plaintiff testified that Burton was familiar with her work and abilities. Burton endorsed the interview report. Plaintiff also testified that the committee questions were job related. The committee had standard questions for all applicants. Since the committee did not recommend plaintiff, Dr. Leonard Simmons, who replaced Nelson as Superintendent, did not interview plaintiff. Simmons recommended Sam Fowler to the Board. Fowler had two years prior experience as an assistant principal at Southern High School and two years prior experience as principal of North Graham Elementary School. Defendant's Exhibit 61. The committee rated Fowler highly. Defendant's Exhibit 38. Based on these facts, the Court concludes that sexual or racial discrimination did not motivate the committee's or Simmons' action.
51. Around August, 1983, plaintiff applied by phone for the principalship of Alexander-Wilson Elementary School. Plaintiff has no complaint about her failure to be hired for that job.
DISCUSSION
Plaintiff alleged disparate treatment because of race or sex in violation of 42 U.S.C. § 2000e-2(a)(1) and/or 42 U.S.C. §§ 1981 and 1983.[9] The Court has jurisdiction to hear claims such as these pursuant to 42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1343(a)(4).
Certain limitations periods define the actions of defendant which may be the basis of liability. Section 2000e-5(e) of Title 42 provides in part that "[a] charge [submitted to the EEOC] under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice ...." Before a claimant may bring a suit in federal court under Title VII, she must have filed a charge with the EEOC in compliance with this limitation period. Doski v. M. Goldseker Co., 539 F.2d 1326 (4th Cir.1976). Plaintiff may obtain relief under Title VII for discriminatory acts of defendant occurring within 180 days of the filing of a charge of discrimination with the EEOC. Simmons v. South Carolina State Ports Authority, 694 F.2d 63, 64 (4th Cir.1982). Discriminatory actions not complained of within the 180 day period are to be considered lawful under Title VII, although a plaintiff may present evidence of prior actions to prove discrimination. Woodard v. Lehman, 717 F.2d 909, 916 (4th Cir.1983). Plaintiff filed a charge with the EEOC on October 27, 1978. April 30, 1978, fell 180 days prior to then.
State law provides the proper statute of limitations for plaintiff's claims under sections 1981 and 1983. King v. Seaboard Coast Line Railroad Co., 538 F.2d 581, 584 (4th Cir.1976). That period is the three year period provided by N.C.Gen. Stat. § 1-52(5). Since plaintiff filed this lawsuit on July 10, 1979, she may recover under sections 1981 and 1983 for discriminatory actions on or after July 10, 1976.[10] Hence, under these limitations plaintiff may recover only for adverse employment decisions beginning with the assistant principalship at Graham High School in June, 1977.
*1092 A civil rights claimant can sustain a theory of a continuing violation only where she establishes a discriminatory employment action within the requisite time period. Woodard v. Lehman, 717 F.2d at 916. Current effects of a past discriminatory action occurring outside the requisite time period cannot be sustained as a continuing violation. Sanders v. Duke University, 538 F.Supp. 1143, 1146 (M.D.N.C.1982); accord, Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980); cf., Patterson v. American Tobacco Co., 586 F.2d 300, 304 (4th Cir.1978) (when a discriminatory promotion system exists, a continuing violation occurs everytime there is a promotion).
In order to prove disparate treatment the claimant must first make a prima facie showing of discrimination, which the claimant accomplishes by producing evidence of actions by the employer which permit an inference that, more likely than not, those actions were based unlawfully upon the claimant's sex or race. If the claimant makes this showing, then the burden of producing evidence shifts to the employer to articulate through the introduction of admissible evidence, a clear and reasonably specific legitimate, nondiscriminatory reason for its action. The articulation of this reason dispels the adverse inference arising from the claimant's prima facie showing and entitles the employer to a judgment unless the claimant in the final stage of this scheme of proof can show that the stated reasons (i.e., plaintiff is not as qualified) are pretexts for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Cuthbertson v. Biggers Brothers, Inc., 702 F.2d 454, 458 (4th Cir.1983). A claimant can show pretext by evidence showing that "a discriminatory reason more likely motivated the employer or ... the employer's proffered explanation is unworthy of credence." Texas Department of Community Affairs v. Burdine, 450 U.S. at 256, 101 S.Ct. at 1095, 67 L.Ed.2d at 217. Plaintiff's evidence must support with "substantial" or "reasonable probability," as distinguished from "possibility" or "speculation," plaintiff's contention that defendant's explanation is pretextual. Fink v. Western Electric Co., 708 F.2d 909, 916 (4th Cir.1983). In this respect, it is not sufficient merely for a claimant to persuade the Court that the employer misjudged her qualifications, because an employer is entitled to exercise its own judgment as to qualifications. Texas Department of Community Affairs v. Burdine, 450 U.S. at 259, 101 S.Ct. at 1096, 67 L.Ed.2d at 219; Loeb v. Textron, Inc., 600 F.2d 1003, 1012 n. 6 (1st Cir.1979). The burden of persuasion under this scheme of proof remains throughout on the claimant. This scheme of proof applies here equally to plaintiff's section 1981 and 1983 claims as well as her Title VII claim. Lewis v. Central Piedmont Community College, 689 F.2d 1207, 1209 n. 3 (4th Cir.1982), cert. denied, ___ U.S. ___, 103 S.Ct. 1433, 75 L.Ed.2d 792 (1983).
Plaintiff alleged a series of discriminatory refusals to promote. She may establish a prima facie case of discrimination by proof that she belonged to a racial minority or sex, that she applied for a position for which she was qualified, that she was rejected, and that a person of the white race or a male was hired or promoted. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668, 677 (1973). Although these elements are not the sole method for establishing a prima facie case, Cline v. Roadway Express, Inc., 689 F.2d 481, 485 (4th Cir.1982); Lovelace v. Sherwin-Williams Co., 681 F.2d 230, 240 (4th Cir.1982), this method is adequate here because plaintiff's evidence sufficed to meet each element except for those positions for which she failed to apply, ineffectively applied, or withdrew from consideration. Establishing the initial prima facie case is not a difficult hurdle.
Plaintiff failed to establish an initial prima facie case as to the assistant principal position at Graham High School in June, 1977, because she applied well after the deadline for applications; the principal position at E.M. Yoder Elementary School *1093 in November, 1978, because she failed to apply; and the principal position at Sylvan Elementary School in August, 1982, because she withdrew from consideration.
Defendant has presented legitimate, nondiscriminatory reasons for not promoting plaintiff into the administrative positions in question. (The same is true for those positions for which plaintiff failed to establish an initial prima facie case.) Plaintiff failed to demonstrate these reasons to be pretextual. The evidence demonstrates clearly that Barbara Tew was perceived as the superior applicant for the principal position at North Graham Elementary School in the summer of 1977. The Court is firmly persuaded that Nelson chose Jane Burke for the B. Everett Jordan Elementary School principalship in the summer of 1977 because he, in his professional judgment, considered her best-suited for that position. Similarly, plaintiff has failed to show pretext in Nelson's explanation about why he chose Wheeler.
The Court is also aware that plaintiff's strongest case rests with the selection of Wheeler and Burke over her. However, if proof of a pattern of discrimination can support an inference that a particular adverse employment decision was motivated by discrimination, Sumler v. City of Winston-Salem, 448 F.Supp. 519, 527 (M.D.N.C.1978), then proof of repeated nondiscriminatory adverse employment decisions, as is the case here, weighs against any inference of discrimination in an employment decision at issue. In any event, plaintiff has fallen far short of evidence showing substantially or with reasonable probability that the defendant's reasons for hiring Burke or Wheeler are pretextual.
The selecting officials truly considered plaintiff to have withdrawn her application for the assistant principalship at Woodlawn Middle School in July, 1980, and to be a poorer candidate for the principalships at North Graham Elementary School in July, 1981, and South Mebane Elementary School in July, 1983.
Plaintiff has stressed the subjective nature of the system's selection procedures from 1970 to 1983 as supporting her claims. The defendant has not attempted to argue that the procedures were not subjective. On the other hand, defendant has argued that subjective analysis of applicants for principal and assistant principal positions is essential. Use of subjective job criteria is not illegal under the civil rights laws, Anderson v. City of Bessemer City, 717 F.2d 149, 155 (4th Cir.1983), even if failure to use objective criteria is contrary to some affirmative action plan. Page v. Bolger, 645 F.2d 227, 233 (4th Cir.), cert. denied, 454 U.S. 892, 102 S.Ct. 388, 70 L.Ed.2d 206 (1981). Of course, the trial court must closely scrutinize subjective procedures because such procedures permit discriminatory abuse. Page v. Bolger, 645 F.2d at 230. In Brady v. Thurston Motor Lines, 726 F.2d 136 (4th Cir.1984), the court of appeals pointed to the following factors as supporting a finding of discriminatory treatment: (1) subjectively based employment decisions, (2) absence of written job descriptions and qualifications, (3) failure to post notices of job openings, (4) a basically all-white supervisory force, (5) a paucity of job changes among blacks, and (6) statistical evidence of the channeling of blacks into certain jobs.
The defendant here is guilty of subjectively based employment decisions and the absence of written job descriptions and qualifications. The defendant did post job-opening notices and blacks and females customarily held positions on interview committees. Evidence showed that blacks held jobs at all levels within the school system and received promotions into administrative positions. There is no statistical evidence of channeling. The testimony of witnesses unanimously established that the selection procedures applied uniformly to all candidates throughout the period in question and that all candidates received fair consideration. Even the plaintiff would characterize her interview sessions as job-related. No evidence links the selection procedure to the failure to select any black or female.
*1094 Plaintiff argued that under the recent opinions of the Fourth Circuit in Evans v. Harnett County Board of Education, 684 F.2d 304 (4th Cir.1982) and Knighton v. Laurens County School District No. 56, 721 F.2d 976 (4th Cir.1983) the burden of persuasion must shift to the defendant to prove that its actions were not motivated by sexual or racial discrimination. In Evans the district court applied the McDonnell Douglas/Burdine scheme of proof. However, since the district court in Evans had found as a fact that despite desegregation the defendant board since 1969 had chosen whites as principals for previously all white schools, and vice versa for blacks, the Court of Appeals held that the burden of persuasion must shift. The appellate court stated that the burden shifts where there is a "finding of either intentional segregative action or a recent history of racial discrimination in a school system." 684 F.2d at 307. The court indicated that burden-shifting may be proper under other unspecified circumstances. In Knighton the appellate court held that the lower court erred in not making a finding concerning whether there was intentional segregative action or a recent history of racial segregation within the school system. The plaintiff in Knighton had presented evidence of the development of a pattern of discrimination against black school personnel.
Here there is no evidence of a disproportionate decimation of the ranks of black or female school personnel which could serve as the basis for burden-shifting as in North Carolina Teachers Association v. Asheboro City Board of Education, 393 F.2d 736 (4th Cir.1968) and Chambers v. Hendersonville City Board of Education, 364 F.2d 189 (4th Cir.1966). There is no evidence of whites being customarily assigned as administrative personnel to formerly all-white schools, and vice versa for blacks, as in Evans.
There is extremely little, if any, evidence of a pattern of discrimination against black or female school personnel in work assignments or evaluations as in Knighton. OCR complained in 1974 about an alleged discriminatory demotion of James Carter, a black. Plaintiff presented no details about the Carter matter, however. There is no evidence that OCR complained at a later date about any personnel practice or decision.[11] On the other hand, the school system obtained (and maintained) the goal of 20 percent minority representation among principals set out in the 1975 Affirmative Action Plan. In 1977 the system began utilizing the committee procedure for selecting principals. The presence of blacks and women on these committees acts as a safeguard against discriminatory practices. Page v. Bolger, 645 F.2d at 231; Wright v. National Archives and Records Service, 609 F.2d 702, 714 (4th Cir.1979). The statistical evidence, as explained by Dr. Harworth, lends no support to the presence of a pattern or practice of discrimination against blacks and females. In her Supplemental Proposed Findings and Brief (January 10, 1984) plaintiff, who presented only raw data at trial, attempted to show that a pattern of discrimination existed in the selection of assistant principals from 1975 to 1983. However, Dr. Harworth's testimony addressed that same topic. Defendant's Exhibit 8, Table 7. Using a binomial distribution and the Fisher's Exact Test, she found, and the Court finds, no statistical support for a non-neutral policy or of a pattern of discrimination. Subsequent to Dr. Harworth's calculations, the system hired two black assistant principals. Those hirings, if included in the statistical calculation, would give results showing more favorable treatment to blacks. Plaintiff did not note that point in her Proposed Findings. Moreover, the Fourth Circuit has warned against isolating bits or portions of statistical evidence from the total statistical picture of employment. Roman *1095 v. ESB, Inc., 550 F.2d 1343, 1350 (4th Cir. 1976). In light of these facts the Court concludes that the circumstances do not warrant burden-shifting.
Assuming that the burden of persuasion should shift to the defendant, the Court believes that the defendant has presented clear and convincing evidence, Knighton v. Laurens County School District No. 56, 721 F.2d 976, that racial or sexual discrimination did not motivate any employment decision plaintiff complains about. The evidence is clear and convincing that for each position in question plaintiff ineffectively applied or failed to apply or plaintiff was found in the best professional judgment of selecting officials to be a lesser qualified person.
CONCLUSIONS OF LAW
1. The Court has jurisdiction over the parties and their dispute.
2. The defendant did not refuse to promote the plaintiff because of her race or sex. 42 U.S.C. §§ 1981, 1983, 2000e-2(a)(1).
A Judgment for the defendant will be entered accordingly.
NOTES
[1] An in-service course is an education course taught within the school system. See Defendant's Exhibit 25, Certification of Credit dated November 19, 1970.
[2] The selection process for assistant principals remained unchanged.
[3] The Board rejected Nelson's recommendation on one occasion because of sizeable community pressure in favor of another applicant whom the committee had recommended also.
[4] Plaintiff testified that the Central Office directed her to see the principal at Graham High School, Edward Jenkins, for an interview, but that Jenkins advised her that he had no authority to employ an assistant principal because the Personnel Office had already hired someone. The probable explanation for this contradiction lies in the lateness of plaintiff's application and/or Jenkins' earlier decision to hire the other person. The Court has previously described the hiring procedure for assistant principals.
[5] In her testimony plaintiff commented that there is more to qualifications than degrees and certifications. Dr. Reutter also ultimately described selecting a principal or assistant principal as a judgment call. Plaintiff's Exhibit 33 at 106.
[6] Plaintiff testified that her application was her blanket application submitted in 1972. Neither the committee nor Nelson was aware of any such application.
[7] Defendant's Exhibit 29 lists applicants for this assistant principal position. Plaintiff's name does not appear. This probably can be attributed to the fact that Stockard contacted plaintiff about the job while interviewing was apparently already in progress.
[8] Plaintiff testified that she was better qualified because Frye had fewer years of experience overall and in elementary education. Frye had been a guidance counselor since 1970 primarily in middle schools. Defendant's Exhibit 60.
[9] This is a disparate treatment case, although this point is not entirely clear. In the Final Pretrial Order (July 7, 1981) plaintiff stated in her contentions that defendant maintained certain policies and practices which had a discriminatory effect on blacks. However, in her later filed Proposed Findings of Fact and Conclusions of Law (September 23, 1983) plaintiff stated only that she "had offered evidence of disparate treatment." In any event, the Court perceives no evidence of neutral employment policies or practices which have had a discriminatory effect on blacks or women.
[10] Claims of sex discrimination are not cognizable under 42 U.S.C. § 1981. Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976).
[11] Proof of a pattern or practice of discrimination requires proof of more than an isolated occurrence of discrimination, rather the claimant must prove that discrimination was the employer's standard operating procedure. Teamsters v. United States, 431 U.S. 324, 336, 97 S.Ct. 1843, 1855, 52 L.Ed.2d 396, 416 (1977). The evidence here allows no such determination. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597294/ | 638 So.2d 91 (1994)
Paul C. NORDBERG, As Assignee of Elliott Trotta, Lillian Trotta and Attorney's Title Insurance Fund, and Elliott Trotta and Lillian Trotta, Appellants,
v.
Nancy Miller GREEN, Appellee.
No. 93-2113.
District Court of Appeal of Florida, Third District.
May 3, 1994.
Rehearing Denied July 12, 1994.
*92 Hickey & Jones and Gary R. Jones, Miami, for appellants.
Mallory H. Horton, South Miami, for appellee.
Before SCHWARTZ, C.J., and HUBBART and GERSTEN, JJ.
SCHWARTZ, Chief Judge.
In 1989, Roger Green, then a single person, executed a contract for the sale to the Trottas of a home he solely owned. Before the closing date, he married the present appellee, Nancy Miller Green. The Trottas at least partly because their counsel did not trust Roger Green insisted that Nancy Green also execute the warranty deed as a grantor. The Greens' attorney specifically advised her, because she had no interest in the property, that it was neither legally necessary nor advisable to do so. Nevertheless, Mrs. Green, who was a real estate broker and who testified that she knew exactly what she was signing and doing, indeed executed the instrument as an accommodation to her husband to assist him in closing the transaction. Unfortunately, contrary to the warranty against encumbrances encompassed in the deed,[1] the property was burdened by a valid judgment lien which cost $99,000.00 plus interest, attorney's fees and costs to remove.
In the present action, Nordberg, as the assignee of the Trottas and the Attorney's Title Insurance Fund, sued the Greens to recover these damages for breach of the warranty contained in the deed. Among other things, Mrs. Green counterclaimed for "reformation" of the deed by the elimination of her signature. After a bench trial, the trial judge entered judgment against Roger Green for a total of $154,512.90.[2] In the ruling which is now before us, however, he found in favor of Nancy Green stating:
The Court further concludes that the signature of Nancy Miller Green on the Warranty Deed was, at best, gratuitous. Based on evidence presented, this Court concludes that it would be grossly inequitable to allow for the entry of judgment against her solely because she accommodated her husband and signed the deed when her signature on the deed was not legally required. The Court concludes that plaintiff has not met his burden as against Nancy Miller Green. Accordingly, judgment is entered on the complaint in favor of this defendant.
The Court concludes that the allegations of the Counterclaim and the third party claim against the Trottas for reformation of the Warranty Deed have been proven by Nancy Miller Green but not Roger Green. Judgment is hereby entered in favor of Nancy Miller Green on the counterclaim and the third party claim and the Court hereby reforms the deed in question by removing her name from same.
We reverse with directions to enter a directly contrary money judgment in Nordberg's favor and against Mrs. Green.
*93 We find no justification whatever for the lower court's action in relieving Mrs. Green from the liability for breach of warranty which resulted from her voluntary and knowledgeable execution of the deed. See 19 Fla.Jur.2d Deeds § 177 (1980).
I.
Although the trial judge rather pointedly declined to base his ruling on that ground, the appellee claims here that her signing of the deed was the result of a "mutual mistake." This is plainly incorrect. Simply stated, there was no cognizable mistake at all, let alone a "mutual" one as to the nature of the undertaking which Mrs. Green voluntarily assumed, or, indeed, of any issue of fact or law surrounding the transaction. Cf. Heisler v. Florida Mortgage Title & Bonding Co., 105 Fla. 657, 142 So. 242 (1932); Nall v. Raybon, 451 So.2d 923 (Fla. 1st DCA 1984); Finger Lickin Food Corp. v. Campbell, 407 So.2d 235 (Fla. 3d DCA 1981). While, in retrospect, Mrs. Green made a very bad decision, indeed, which will cost her a great deal of money, neither law nor equity may operate to relieve one, at the expense of the other side, of the consequences of her own error. Graham v. Clyde, 61 So.2d 656, 657 (Fla. 1952) ("If one's mistake is due to his own negligence and lack of foresight and there is absence of fraud or imposition, equity will not relieve him."); see Bridges v. Thomas, 118 So.2d 549, 553 (Fla. 2d DCA 1960); see also Chanrai Invs., Inc. v. Clement, 566 So.2d 838, 840 (Fla. 5th DCA 1990), review denied, 576 So.2d 285 (Fla. 1991).
II.
Nor is there any merit to the grounds which were assigned by the trial court. First, the fact that Mrs. Green's signature was "at best, gratuitous" is of no legal significance. Just as in the case of one who cosigns or guarantees another's note to secure the underlying loan, the fact that one of the grantors of a warranty deed received no consideration herself for the property does not affect her liability to the grantees. See Tucker v. Butterweck, 50 Fla. 442, 39 So. 480 (1905); 28 Fla.Jur.2d Guaranty and Suretyship §§ 18-19 (1981).
Secondly, it was improper for the trial court to base its decision on its own view that it would be "grossly inequitable" to enter judgment against Mrs. Green under these circumstances. Whether this conclusion is justified as a personal matter or not, the fact is that the law holds Mrs. Green to her word and provides a remedy to those to whom she has given it when they are damaged by her breaking it. No judge has the authority to ignore that law because he believes it inappropriate in a particular case. As was said in Flagler v. Flagler, 94 So.2d 592 (Fla. 1957):
[C]ourts of equity have [no] right or power under the law of Florida to issue such order it considers to be in the best interest of "social justice" at the particular moment without regard to established law.
Flagler, 94 So.2d at 594; accord Schwartz v. Zaconick, 68 So.2d 173, 176 (Fla. 1953) ("with respect to such fundamental rules of law as the one here, equity must follow the law unless some recognized principle permits otherwise").[3]
For these reasons, the judgment in Mrs. Green's favor "reforming" the deed to eliminate her name is reversed. Since the existence of a breach of warranty and the damages caused by that breach have already been established below, the cause is remanded to enter judgment in the appellants' favor and against Mrs. Green in the same form and *94 amount as against Mr. Green nunc pro tunc the date of that judgment.
Reversed and remanded.
NOTES
[1] The standard warranty provided:
AND the grantor hereby covenants with said grantee that the grantor is lawfully seized of said land in fee simple: that the grantor has good right and lawful authority to sell and convey said land: that the grantor hereby fully warrants the title to said land and will defend the same against the lawful claims of all persons whomsoever: and that said land is free of all encumbrances, except taxes accruing subsequent to December 31, 1989.
[2] This portion of the judgment provides:
Plaintiff, Nordberg, has met his burden as against defendant, Roger B. Green. Said defendant has breached the warranty against encumbrances contained in the Warranty Deed. Because of this breach, plaintiff has been damaged in the sum of $99,000.00 (the amount necessary to remove the Nordberg judgment lien from the property), the additional sum of $29,586.00 (interest from November 1, 1990 to May 1, 1992), and the sum of $25,926.82 (the necessary attorneys' fees and costs incurred by the Trottas' counsel to remove the lien on the subject property), all totalling $154,512.90 for which sum let execution issue against defendant, Roger B. Green. This determination was reached after the Court concluded that the Nordberg judgment constitutes a judgment lien against the property.
[3] Although on its face the deed shows that the signatures of both Greens were witnessed by two individuals, and the Trottas had no reason to believe otherwise, the appellee seeks to justify the judgment on the ground that, in fact, Mrs. Green's signature was witnessed by only one person. See § 689.01, Fla. Stat. (1993). While we doubt that the two-witness rule is even applicable in this situation, which does not involve the validity of the transfer of title, but the obligation of Mrs. Green for the personal contract of warranty contained in the deed, it is unnecessary to dwell on this point. This is so because under the circumstances of this case, the appellee is estopped from attacking the validity of the instrument on this ground. Cox v. La Pota, 76 So.2d 662 (Fla. 1954); First Nat'l Bank v. Ashmead, 33 Fla. 416, 14 So. 886 (1894); Medina v. Orange County, 147 So.2d 556 (Fla. 2d DCA 1962). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597134/ | 28 So.3d 1116 (2009)
Lisa ENCALADE, individually and on behalf of Norbert Encalade's Estate, Jan Villa, Irene Encalade, Norbert Encalade, Jr. and Maria Encalade
v.
WEST JEFFERSON MEDICAL CENTER AMBULANCE SERVICE, Gerald Carter, City of Lafitte, and Jefferson Parish.
No. 09-CA-355.
Court of Appeal of Louisiana, Fifth Circuit.
November 24, 2009.
Leo J. Palazzo, David D. Bravo, Gretna, Louisiana, for Appellants, Lisa Encalade, *1117 Jan Villa, Irene Encalade, Norbert Encalade, Jr. and Maria Encalade
Peter J. Butler, Jr., Richard G. Passler, Michael C. Luquet, Lydia Habliston Toso, New Orleans, Louisiana, for Appellees, Jefferson Parish Hospital District No. 1 d/b/a West Jefferson Medical Center and Gerald Carter.
Panel composed of Judges MARION F. EDWARDS, SUSAN M. CHEHARDY, and MARC E. JOHNSON.
SUSAN M. CHEHARDY, Judge.
On appeal, plaintiffs seek review of the trial court judgment maintaining defendants' exception of prematurity. For the following reasons, we affirm that judgment.
Facts
Late on the evening of March 4, 2008, Norbert Encalade began having chest pain and difficulty breathing. At 11:28 p.m., his wife called 911 to request emergency medical assistance. In response, the dispatcher sent an ambulance from the West Jefferson Medical Center Ambulance Service to the couple's home in the Town of Jean Lafitte.
At 11:52 p.m., the ambulance, which was driven by Gerald Carter, arrived at the Encalade's home. After rendering immediate medical assistance, the emergency medical personnel departed with Mr. Encalade for West Jefferson Medical Center ("WJMC") at 12:14 a.m. on March 5, 2008.
According to the plaintiffs' brief, during the trip to the hospital, the ambulance driver traveled at forty-five (45) miles per hour, without using the ambulance's emergency lights. The ambulance arrived at WJMC at 12:30 a.m. Shortly after arriving at the hospital, Mr. Encalade died.
On October 28, 2008, Mrs. Encalade, individually, and on behalf of their four children filed suit in the Twenty-Fourth Judicial District Court, against the hospital, the ambulance service, the ambulance driver, the Town of Jean Lafitte and Jefferson Parish alleging that their negligence caused Mr. Encalade's death. The plaintiffs specifically allege that Gerald Carter was negligent for "failing to timely respond and transport Mr. Encalade to a health care facility" and WJMC was negligent for "failing to train, monitor and supervise its employees."
On December 23, 2008, defendants, Jefferson Parish Hospital District No. 1 d/b/a WJMC and Gerald Carter excepted that the Encalades' action was premature because the instant suit was filed before the plaintiffs' claim was reviewed by a medical review panel as required by La. R.S. 40:1299.41 et seq. On February 11, 2009, the trial judge heard defendants' exception and took it under advisement.
On March 2, 2009, the district court maintained the exception of prematurity finding that the plaintiffs' claims fell within the scope of the Louisiana Medical Malpractice Act ("LMMA"). In its written Reasons for Judgment, the trial court wrote:
The Court considered the Louisiana Supreme Court case of Coleman v. Deno, 01-1517, (La.1/25/02), 813 So.2d 303, 315, and finds that the six factors set forth by the Louisiana Supreme Court for determination of whether the conduct of a qualified health care provider constitutes "malpractice" has[sic] been satisfied.
The plaintiffs cited Robinson v. Allen Parish Police Jury, 05-0394 (La.App. 3 Cir. 12/30/05), 918 So.2d 535, 539, and Hidalgo v. Wilson Certified Express, Inc., 94-1322 (La.App. 1 Cir. 5/14/96), 676 So.2d 114, 119, in their opposition memorandum. The court finds that these cases are clearly distinguishable *1118 from the case at bar. In Robinson, supra, the plaintiffs alleged that there was a delay in transporting an accident victim to the emergency room because the defendant's helicopter had mechanical problems. The Robinson court found that a helicopter's mechanical problems fall outside [of] the scope of the Louisiana Medical Malpractice Act.
In Hidalgo, supra, the plaintiff was riding in the back of an ambulance which was involved in a motor vehicle accident. The ambulance ran into the rear of the car preceding it and caused a four car collision. Upon impact, the patient struck her head and sustained injuries. The Hidalgo court found that the negligence of the ambulance driver in causing a motor vehicle accident did not fall within the ambit of the Louisiana Medical Malpractice Act.
In contrast, the plaintiffs at bar are alleging that Norbert Encalade's medical condition required urgent action on the part of the emergency medical technicians who assessed him at his home. The plaintiffs contend that Mr. Encalade's medical condition was of such severity that he should have been transported by ambulance at a speed in excess of 45 miles per hour and with flashing emergency lights. The plaintiffs' allegations fall within the scope of the Louisiana Medical Malpractice Act because it places squarely at issue the emergency medical technicians' assessment of the patient's medical condition and the nature of the response (flashing lights and the speed of emergency transport) required by the applicable standard of care.
On appeal, appellants argue that the trial judge erred as a matter of law because the defendants' negligent transport of Mr. Encalade is not the kind of emergency medical care or medical duty that the legislature sought to immunize from liability under the LMMA. Appellees respond that this claim falls squarely within the statutory and jurisprudential definition of medical malpractice.
The Louisiana Medical Malpractice Act is found at La. R.S. 40:1299.41, et seq. La. R.S. 40:1299.41(A)(9) defines "health care" as "any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to, or on behalf of a patient during the patient's medical care, treatment or confinement...." In Louisiana, a "health care provider" is defined as "a ... corporation, facility, or institution licensed or certified by this state to provide health care or professional services as a physician, hospital, ... ambulance service, ... or agent thereof acting in the course and scope of his employment." La. R.S. 40:1299.41(A)(10).
La. R.S. 40:1299.41(A)(1) defines an "ambulance service" as:
an entity ... which operates either ground or air ambulances, using a minimum of two persons on each ground ambulance, at least one of whom is trained and registered at the level of certified emergency medical technician basic, or at the intermediate or paramedic levels, or one who is a registered nurse, ... or any officer, employee, or agent thereof acting in the course and scope of his employment.
La. R.S. 40:1299.41(A)(13) defines "malpractice," as:
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, including failure to render services timely and the handling of a patient, including loading and unloading of a patient, and also includes all legal responsibility of a *1119 health care provider arising from defects in blood, or blood components, in the training or supervision of health care providers....
La. R.S. 40:1299.47 provides, in pertinent part, that:
(A)(1) 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....
* * *
(B)(1)(a)(i) No action against a health care provider covered by this Part or his insurer, may be commenced in any court before the claimants' proposed complaint has been presented to a medical review panel established pursuant to this Section.
Although appellants contend that these unintentional torts were not "healthcare" services, our review of the original and amended petition reflects that appellants specifically alleged that the failure of the emergency medical technicians to hurriedly get to Mr. Encalade, promptly stabilize Mr. Encalade for transport, and quickly return Mr. Encalade to WJMC contributed to the rapidity of his death. Further, appellants specifically allege that WJMC was negligent in failing to properly train the emergency medical technicians.
Medical malpractice is statutorily defined, in part, as "failure to render services timely and the handling of a patient, including loading and unloading of a patient, and ... in the training or supervision of health care providers." The trial court reasoned that "plaintiffs' allegations fall within the scope of the Louisiana Medical Malpractice Act because it places squarely at issue the emergency medical technicians' assessment of the patient's medical condition and the nature of the response (flashing lights and the speed of emergency transport) required by the applicable standard of care." We find no error in that reasoning. Accordingly, we affirm the grant of defendants' exception of prematurity. Costs for this appeal are assessed equally between the appellants and the appellees.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597318/ | 638 So.2d 87 (1994)
GAZEBO LANDSCAPE DESIGN, INC., Appellant,
v.
BILL FREE CUSTOM HOMES, INC., a Florida Corporation, Sheldon E. Stunkel and Sally Stunkel, Appellees.
No. 92-3274.
District Court of Appeal of Florida, Fourth District.
April 27, 1994.
Clarification Denied July 7, 1994.
*88 Robert E. Ferencik, Jr., Leiby Ferencik Libanoff and Brandt, P.A., Miami, for appellant.
Christopher L. Kurzner and Steven E. Stark, Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., Miami, for appellees.
POLEN, Judge.
Appellant, Gazebo Landscape Design, Inc., sought to enforce a mechanic's lien against the appellee homeowners, Bill and Sally Stunkel (the Stunkels), for landscape work done, including the planting of hand selected trees. The trial court refused to enforce the mechanic's lien, and entered judgment in favor of the Stunkels on the grounds that Gazebo did not serve them with a notice to owner within forty-five days after commencing to furnish service or materials, as required by section 713.06(2)(a), Florida Statutes (1991).[1] We reverse.
The Stunkels entered into a contract for the construction of a residence on their property with Bill Free Custom Homes, a general contractor. Bill Free then entered into an oral contract with Gazebo, a landscaping subcontractor, for Gazebo to obtain and plant trees, which were to be hand selected by the Stunkels. On November 7, 1990, one of Gazebo's representatives flew to Sarasota with the Stunkels, on the Stunkels' private jet, where they met with a tree collector, Turner Tree and Landscape. The Stunkels selected several trees, and physically tagged them to ensure that these would be the exact trees delivered to their premises and planted by Gazebo. On December 5, 1990, several of Gazebo's employees went to the Stunkel residence to dig holes in preparation for the arrival of the trees. On December 7, 1990, the trees arrived from Turner Tree and Landscape and were planted by Gazebo. On January 15, 1991, Gazebo sent a notice to the Stunkels at their residence, via certified mail, which was returned unclaimed. On January 18, 1991, Gazebo had a notice to owner hand posted on the gate of the Stunkel's residence.
On February 11, 1992, Gazebo filed a complaint for breach of contract and to foreclose its claim of lien, naming both Bill Free and the Stunkels. The action against Bill Free was stayed in bankruptcy. On September 17, 1992, the Stunkels and Gazebo proceeded to trial. At the close of Gazebo's case, the trial court entered an involuntary dismissal against Gazebo's claim of lien.
We hold that the trial court erred in granting the motion for involuntary dismissal and entering a final judgment in the Stunkels' favor. We base this holding on the lack of legal authority in Florida to support the trial court's conclusion that Gazebo began furnishing services to the Stunkels in November 1990, when a representative of Gazebo went with the Stunkels to select the trees. The only authority referred to by the Stunkels, and relied upon by the lower court, was Arlington Lumber & Trim Co., Inc. v. Vaughn, 548 So.2d 727 (Fla. 1st DCA 1989), which is distinguishable from the instant appeal. In Arlington, the first district held that the time during which a materialman was required to serve a notice to owner began to run when the contractor made an *89 over the counter purchase of materials for a job, as this was when the materialman began to furnish his materials. Id. at 729. Conversely, at bar, even though Gazebo might have given Turner Tree and Landscape a deposit for the trees, there were no affirmative acts taken by Gazebo which establish that Gazebo actually began to furnish materials, the trees, to the Stunkels. It should be further noted that Arlington refers only to the furnishing of materials, and gives no guidance as to when a materialman, contractor, subcontractor, or any other might begin to furnish services.
We also acknowledge that there is no legal authority in Florida specifically concluding that a contractor does not begin to furnish services until its employees actually begin work at the job site. However, in considering the motion for involuntary dismissal at bar, the trial court should have taken all the facts and evidence presented and evaluated them in the light most favorable to Gazebo. Charlotte Asphalt, Inc. v. Cape Cave Corporation, 406 So.2d 1234 (Fla. 2d DCA 1981). If any reasonable interpretation supported Gazebo's claim, the Stunkels' motion should have been denied. The lower court heard testimony from Gazebo's representative that no deal was sold until "the job (was) in the ground and I got the check." In addition, Gazebo's representative testified that the deposit for the trees was refundable. This representative further testified that the trip to Sarasota was a "sales thing," and if "the guy liked the trees we sold the deal." However, he also stated that, "If Mr. Stunkel walked out there and said, `these trees are no good,' I would have left and he would have probably hired someone else." Since these facts and this testimony can be reasonably interpreted to support Gazebo's claim that it did not furnish services or materials until December 5, 1990, when they began to dig holes at the Stunkel residence, we hold that the trial court erred in granting the Stunkels' motion for involuntary dismissal.
However, we do not hold as a matter of law that a contractor does not begin to furnish services until work is actually performed at the job site. Rather, in determining when the furnishing of services begins, we suggest that the trial court look at all of the circumstances surrounding the particular job or transaction. It might be particularly useful to determine whether the contractor had actually suffered any economic detriment, or whether he simply engaged in certain activities on a gratuitous basis, in hopes of "landing" a job. This practical analysis, based on the totality of the circumstances, might eliminate any possible confusion and uncertainty in the construction industry as to when services are actually furnished, and when notice should be given in accordance with section 713.06(2)(a), Florida Statutes (1991), so a mechanic's lien can be legally enforced.
Thus, we reverse and remand for proceedings consistent with this opinion. Nonetheless, we certify to the supreme court the following question as one of great public importance:
DOES A SUBCONTRACTOR BEGIN TO FURNISH SERVICES, FOR THE PURPOSE OF TIMELY PROVIDING A NOTICE TO OWNER IN ACCORDANCE WITH SECTION 713.06(2)(a), FLORIDA STATUTES (1991), WHEN, WITHOUT ANY BINDING CONTRACTUAL OBLIGATION TO DO SO, HE OR SHE BEGINS TO SELECT MATERIALS AT SOME LOCATION OFF THE JOB SITE, FOR FUTURE INSTALLATION ON THE JOB SITE?
ANSTEAD and STONE, JJ., concur.
NOTES
[1] All lienors under this section, except laborers, as a prerequisite to perfecting a lien under this chapter, and recording a claim of lien, must serve a notice on the owner.... The notice must be served before commencing, or not later than 45 days after commencing to furnish his services or materials... . § 713.06(2)(a), Fla. Stat. (1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597152/ | 638 So.2d 604 (1994)
EAST WEST KARATE ASSOCIATION, Inc., Appellant/Cross-Appellee,
v.
Carlos RIQUELME and James Gipe, Appellees/Cross-Appellants.
No. 92-2715.
District Court of Appeal of Florida, Fourth District.
June 22, 1994.
Henry J. Hunnefeld of Carusello & Hunnefeld, P.A., Coral Gables, for appellant/cross-appellee.
Arnold R. Ginsberg of Perse, P.A. & Ginsberg, P.A. and Ansel & Simon, P.A., Miami, for appellees/cross-appellants.
POLEN, Judge.
Appellant, East West Karate Association, Inc. (East West) appeals from a final judgment entered after a jury verdict in favor of appellee Carlos Riquelme in a negligence action. Carlos Riquelme cross-appeals from the final judgment. East West Karate Association raises several issues on appeal; however, only one issue requires reversal.
*605 In April of 1990 Carlos Riquelme began taking karate lessons at East West Karate Association, Inc. In May of 1990 Riquelme participated in a voluntary, supervised sparring session. He was paired with another new karate student James Gipe. The two students sparred several times that evening and in their final match Riquelme was injured when Gipe delivered a kick to the left side of Riquelme's back just above the kidney. As a result, Riquelme suffered a ruptured spleen and underwent an emergency spleenectomy.
Riquelme filed a negligence action against James Gipe and East West seeking damages for his injuries. A jury trial commenced on June 29, 1992. Riquelme took a voluntary dismissal with respect to its claim against James Gipe. On June 30, 1992 the jury returned a verdict in favor of Riquelme in the amount of $27,107.08.
On appeal, East West maintains that the trial court erred in not submitting James Gipe's name on the jury verdict form. We agree. The trial court denied East West's request to place James Gipe's name on the verdict form noting that "Gipe is not a party." East West contends that by not allowing James Gipe's name on the verdict form, the trial court refused to allow any apportionment of liability against a participant in the accident which injured plaintiff. Thus, East West was held liable for the entire amount of Riquelme's damages. This issue is controlled by the Florida Supreme Court's recent decision in Fabre v. Marin, 623 So.2d 1182 (Fla. 1993).
In Fabre, the supreme court reviewed Fabre v. Marin, 597 So.2d 883 (Fla. 3d DCA 1992), based upon its certified conflict with Messmer v. Teacher's Insurance Co., 588 So.2d 610 (Fla. 5th DCA 1991), review denied, 598 So.2d 77 (Fla. 1992). The supreme court quashed the district court's opinion and held that section 768.81(3), Florida Statutes (Supp. 1988) is unambiguous and requires that judgment be entered against each party liable on the basis of that party's percentage of fault. The court reasoned that "[c]learly the only means of determining a party's percentage of fault is to compare that party's percentage of fault to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants." Id. at 1185. Thus, a defendant is only required to pay noneconomic damages in an amount proportionate to his or her percentage of fault. Id.
The result in Fabre dictates that we reverse the instant case for a new trial. We also address the two additional issues raised by East West on appeal in the event that they should arise again upon retrial.
East West contends that the trial court erred in admitting certain medical bills of plaintiff's into evidence because plaintiff failed to carry his burden of proving the reasonableness and necessity of the bills in question. We disagree.
East West correctly argues that the plaintiff has the burden at trial to prove the reasonableness and necessity of medical expenses and that Florida requires more than just evidence of the amount of the bill to establish that reasonableness. Albertson's, Inc. v. Brady, 475 So.2d 986 (Fla. 2d DCA 1985), rev. denied, 486 So.2d 595 (1986). However, it is not necessary for the plaintiff to provide expert testimony. Id. "When a plaintiff testifies as to the amount of his or her medical bills and introduces them into evidence, it becomes `a question for the jury to decide, under proper instructions, whether these bills represented reasonable and necessary medical expenses.'" Irwin v. Blake, 589 So.2d 973 (Fla. 4th DCA 1992), quoting Garrett v. Morris Kirschman & Co., Inc., 336 So.2d 566 (Fla. 1976).
We conclude that the trial court properly admitted plaintiff's medical bills into evidence and allowed the jury to determine the reasonableness and necessity of the charges.
East West also argues on appeal that the trial court erred in failing to grant its motion for a directed verdict at the close of all the evidence. According to East West no reasonable jury could have found that Riquelme did not subjectively appreciate the risk. We disagree.
We find from our review of the record that conflicting evidence existed with respect to plaintiff's appreciation of the risk. The trial *606 court properly submitted this case to the jury and allowed the fact finder to determine after reviewing all the evidence whether Riquelme did or should have subjectively anticipated the risk. Kuehner v. Green, 436 So.2d 78 (Fla. 1983).
Additionally, having concluded that Fabre requires that this case be reversed for a new trial, Riquelme's cross-appeal is rendered moot.
We reverse and remand for a new trial consistent with this opinion.
GUNTHER and STONE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597179/ | 638 So.2d 114 (1994)
Rosemary STOGNIEW, Appellant/Cross-Appellee,
v.
Thomas J. McQUEEN, Appellee/Cross-Appellant.
No. 93-00436.
District Court of Appeal of Florida, Second District.
June 3, 1994.
Murray B. Silverstein of Silverstein & Snyder, P.A., Tampa, for appellant/cross-appellee.
Charles W. Hall and William A. Kebler of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., St. Petersburg, for appellee/cross-appellant.
DANAHY, Acting Chief Judge.
In an action by a client against her therapist for negligence, the plaintiff appeals a final judgment entered on a jury verdict for the defendant and the defendant cross-appeals. We affirm the final judgment and thus do not address the issue on cross-appeal.
The appellee (McQueen) is a licensed marriage and family therapist. The appellant (Stogniew) sought counseling from McQueen to help her deal with the sudden and unexpected death of her 21-year-old son in 1986. Stogniew first saw McQueen in his office on January 30, 1986. The counseling sessions ended unhappily for Stogniew, leading her to take two actions. She filed a complaint against McQueen with the Department of Professional Regulation (DPR). She also brought this action against McQueen on *115 April 3, 1990, to recover damages for negligence.
During the pendency of this action in the trial court, a final decision was reached in the DPR proceedings on Stogniew's complaint against McQueen. DPR issued a final order concluding that McQueen violated Florida Statutes governing his profession by failing to meet the minimum standards of performance in his professional activities when measured against generally prevailing peer performance in his relationship with Stogniew.
Asserting that the facts underlying the DPR determination were the exact same facts underlying Stogniew's action for negligence against McQueen, Stogniew moved for partial summary judgment on the theory of offensive collateral estoppel, requesting the trial court to rely on the DPR final order to preclude relitigation of the issue of whether McQueen failed to meet the minimum standards of his profession in his counseling relationship with Stogniew. The trial court denied Stogniew's motion and all of her subsequent efforts to introduce the outcome of the DPR proceedings in her negligence action. At the conclusion of a jury trial, the jury returned a verdict finding McQueen not negligent in his counseling relationship with Stogniew. Stogniew vigorously asserts that the trial court should have allowed her to use the DPR decision to preclude McQueen from disputing the facts underlying this action when those facts are the same facts considered by DPR. We write to address this important question.
Two decisions of our supreme court are applicable here. The first is Trucking Employees of North Jersey Welfare Fund, Inc. v. Romano, 450 So.2d 843 (Fla. 1984). In that case limited partners brought an action against their general partners and business managers alleging breach of fiduciary duty, conspiracy to defraud, and breach of the limited partnership contract. Subsequently, a federal criminal indictment was filed charging the defendants with twenty-one counts of fraud and misrepresentation. The plaintiffs were named in the indictment as victims of the specific acts which had been alleged in their complaint. The defendants were found guilty on all counts.
Thereafter, the plaintiffs filed a motion for summary judgment on the strength of the guilty verdict returned by the jurors in the federal criminal action. The trial court granted summary judgment on the issue of liability. The Fourth District Court of Appeal reversed on the ground that a criminal conviction is not admissible in a civil action to prove the truth of the underlying facts and that lack of identity of the parties barred use of the conviction as collateral estoppel.
In Romano, the supreme court limited its inquiry to the use of a criminal conviction as conclusive proof of the facts underlying the conviction in a civil suit arising from those same facts. The court approved the decision of the Fourth District Court of Appeal and answered its certified question in the negative. That question was whether a litigant, who was not a party to a prior criminal proceeding that resulted in a judgment of conviction, may use the judgment of conviction "offensively" in a civil proceeding to prevent the same defendant from relitigating issues resolved in the earlier criminal proceeding.
The court in Romano pointed out that a corollary to the doctrine of collateral estoppel is the doctrine of mutuality of parties which holds that strangers to a prior litigation those who are neither parties nor in privity with a party are not bound by the results of that litigation. The court recognized that the federal courts have abandoned the requirement of mutuality of parties as a prerequisite to asserting the doctrine of collateral estoppel. However, the court adhered to the well-established rule in Florida that collateral estoppel may be asserted only when the identical issue has been litigated between the same parties or their privies.
In Zeidwig v. Ward, 548 So.2d 209 (Fla. 1989), the supreme court had another occasion to consider the requirement of mutuality of parties in the application of collateral estoppel. In that case, a client brought an action for alleged malpractice of the attorney who had represented him in a criminal prosecution. In the criminal prosecution, the plaintiff had unsuccessfully asserted "ineffective *116 assistance" of the attorney in postconviction proceedings. The supreme court held that mutuality of the parties is not a prerequisite to the defensive application of collateral estoppel in a criminal-to-civil context, so that the plaintiff was collaterally estopped from raising the same facts underlying his unsuccessful "ineffective assistance of counsel" claim in his legal malpractice action against his former attorney.
Stogniew relies heavily on Zeidwig to persuade us that the supreme court abandoned the mutuality-of-parties requirement and that this requirement should not be applied to prevent "offensive collateral estoppel" in the administrative proceedings civil action context. We do not agree that the supreme court relaxed the mutuality-of-parties requirement to that extent. Further, we do not agree with Stogniew that she could be considered to have been in privity with the DPR in its investigation and discipline of McQueen, so that the requirement of mutuality of parties has been met.
In sum, we agree with the trial court that Stogniew could not use the DPR decision against McQueen as offensive collateral estoppel to preclude McQueen from contesting in this action the same facts that were involved in the DPR proceeding. Recognizing the strength of Stogniew's arguments, we certify the following question to the supreme court as a question of great public importance:
MAY AN ADMINISTRATIVE DETERMINATION OF A PROFESSIONAL'S MISCONDUCT BE USED AS CONCLUSIVE PROOF OF THE FACTS UNDERLYING THAT DETERMINATION IN A SUIT AGAINST THE PROFESSIONAL FOR NEGLIGENCE BASED ON THE SAME FACTS?
Affirmed; question certified.
BLUE and QUINCE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922184/ | 983 So.2d 587 (2008)
COOKINSON
v.
STATE.
No. 2D08-2747.
District Court of Appeal of Florida, Second District.
June 10, 2008.
Decision without published opinion. Hab.Corp.denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597077/ | 638 So. 2d 183 (1994)
Arthur LEVINE, et al., Appellants,
v.
UNITED COMPANIES LIFE INSURANCE COMPANY, Appellee.
No. 93-1404.
District Court of Appeal of Florida, Third District.
June 14, 1994.
*184 Friedman, Rodriguez & Ferraro, Paul D. Friedman, and A. Margaret Hesford, Miami, for appellants.
Holland & Knight, Daniel S. Pearson, and Lucinda A. Hofmann, Miami, for appellee.
Before JORGENSON, LEVY and GERSTEN, JJ.
PER CURIAM.
Appellants, Arthur Levine, et al., appeal from a judgment of foreclosure and money damages. We reverse in part and affirm in part.
Appellee, United Companies Life Insurance Co., correctly concedes the first two points on appeal. First, guarantors of a purchase mortgage loan should be liable only for the amount of a deficiency if established subsequent to a foreclosure. See Hatton v. Barnett Bank, 550 So. 2d 65, 66-68 (Fla. 2d DCA 1989). Therefore, the guarantors here may not be held liable for the full amount of the judgment prior to a determination of a deficiency. Second, appellee is not entitled to an award for appraisal and environmental assessment fees where the loan documents do not provide for either fee.
Turning to the contested issue on appeal, we conclude that the trial court did not abuse its discretion in denying appellants' motion to amend their pleadings to state an affirmative defense of usury. See Costa Bella Dev. Corp. v. Costa Dev. Corp., 445 So. 2d 1090 (Fla. 3d DCA 1984). While the trial court has discretion to grant amendments to pleadings even during trial, this liberality diminishes as the case progresses. Ruden v. Medalie, 294 So. 2d 403, 406 (Fla. 3d DCA 1974).
In addition, the mortgage note expressly stated that interest was to be charged only at a lawful percentage. The inclusion of this language in loan documents has been held to warrant dismissal of a usury claim. Forest Creek Dev. Co. v. Liberty Sav. & Loan Ass'n, 531 So. 2d 356, 357 (Fla. 5th DCA 1988), review denied, 541 So. 2d 1172 (Fla. 1989).
Finally, the trial court did not award the prepayment penalty. Appellants had asserted that this penalty in combination with the default interest rate constituted usury. Thus, the court's refusal to permit the amendment was harmless since the court effectuated the parties' expressed intent that a usurious rate not be charged or received. Accordingly, we reverse the trial court on the issues to which appellee confessed error while, at the same time, affirming the trial court's denial to amend the pleadings.
Reversed in part; affirmed in part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4219375/ | NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 9 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOEL DAVID JOSEPH, No. 16-56895
Plaintiff-Appellant, D.C. No. 2:16-cv-02252-PSG-AJW
v.
MEMORANDUM*
NORDSTROM, INC.; NEW BALANCE
ATHLETICS, INC.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted October 23, 2017**
Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.
Joel David Joseph appeals pro se from the district court’s order denying his
motions to reopen his diversity action alleging state law claims. We have
jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Joseph’s requests for oral
argument, set forth in his opening and reply briefs, are denied.
district court’s denial of motions to alter or amend and for reconsideration.
Garamendi v. Henin, 683 F.3d 1069, 1077 (9th Cir. 2012) (Fed. R. Civ. P. 60(a));
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th
Cir. 1993) (Fed. R. Civ. P. 60(b)). We affirm.
The district court did not abuse its discretion by denying Joseph’s motion to
reopen his case or his motion to reconsider the denial of that motion because
Joseph failed to demonstrate any basis for relief. See Sch. Dist. No. 1J, 5 F.3d at
1263 (setting forth grounds for relief from judgment under Rule 60(b)); Blanton v.
Anzalone, 813 F.2d 1574, 1577 (9th Cir. 1987) (setting forth grounds for relief
under Rule 60(a)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
2 16-56895 | 01-03-2023 | 11-09-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/1597080/ | 638 So. 2d 1015 (1994)
STATE of Florida, Appellant,
v.
Lucious MITCHELL, Jr., Appellee.
No. 93-00925.
District Court of Appeal of Florida, Second District.
June 15, 1994.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Ann P. Corcoran, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, and Jennifer Y. Fogle, Asst. Public Defender, Bartow, for appellee.
RYDER, Acting Chief Judge.
The State challenges the trial court's order of suppression. Because we agree with the State that the search of Mitchell's vehicle was proper following his lawful custodial arrest, we reverse.
At the suppression hearing, Deputy Hough testified that he first saw Mitchell's automobile at 3:00 a.m. in a dark area of a closed gas station's parking lot. Ten minutes before, the automobile had not been there. The area had been the target of scores of recent burglaries that primarily occurred between midnight and 6:00 a.m. The gas station itself had been burglarized several times. Deputy Hough had received no reports of ongoing criminal activity. When he first saw the vehicle, there appeared to be no occupant; however, as he pulled into the gas station to perform a vehicle check, his headlights revealed Mitchell inside the parked car. He approached and asked Mitchell what he was doing. Mitchell said he was waiting for a female friend, but he did not know when she would arrive. The deputy thought Mitchell was very evasive.
Deputy Hough requested and Mitchell supplied a Florida identification card. The deputy testified that Mitchell was free to leave. He ran a computer check that disclosed the existence of an outstanding warrant for Mitchell's arrest. Hough returned to the vehicle, explained this development and asked Mitchell to get out of the vehicle. At this point he was not free to leave. As he spoke with Mitchell, he noticed something silver that he could not identify on the floor-board. *1016 He thought Mitchell had been trying to conceal it. Mitchell did not move toward it when asked to exit the car. Once Mitchell exited the car, the deputy patted him down, handcuffed him and placed him in the back seat of the patrol car.
Hough returned to the vehicle's open door and observed what appeared to be a rock cocaine pipe and a small ring baggie between the driver's and the passenger's positions on the front seat. He then searched a plastic bag full of men's clothes which also contained a ring baggie. The silver object was a cocaine pipe. Hough subsequently decided that if Mitchell would sign a waiver slip, he would not impound the car. He moved the car to a lighted area, locked it up and gave Mitchell the keys.
Mitchell's counsel conceded at the suppression hearing that the stop was valid, and that the subsequent request for identification, computer check and arrest were valid. Instead, he challenged the validity of the search and seizure of the vehicle after Mitchell's arrest. On appeal, the appellant also argues that his initial detention was invalid.
The State argues that the stop was a consensual one, and that the subsequent search and seizure was proper because of the valid custodial arrest. The State alternatively contends that the search was justified because the plain view doctrine provided the deputy with probable cause to believe that contraband was in the vehicle.
We agree with the State that the initial encounter was a consensual one. The officer was in a constitutionally permissive area when Mitchell provided identification to the deputy. "There is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the street." Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). There exists a distinction between an intrusion by police amounting to a "seizure" of the person and an encounter which intrudes upon no constitutionally protected interest. Lightbourne v. State, 438 So. 2d 380 (Fla. 1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1330, 79 L. Ed. 2d 725 (1984).
In deciding whether the initial contact between the officer and Mitchell was consensual, we must determine from the facts whether a reasonable person would have believed he was free to leave. State v. Starke, 574 So. 2d 1214 (Fla. 2d DCA 1991); State v. Simons, 549 So. 2d 785 (Fla. 2d DCA 1989). An officer may address questions to anyone on the street, and unless the officer attempts to prevent the citizen from exercising his right to walk away, such questioning will usually constitute a consensual encounter rather than a stop. Starke; State v. Wilson, 566 So. 2d 585 (Fla. 2d DCA 1990); Simons.
Here, the deputy was conducting a reasonable inquiry which did not necessitate a founded suspicion. After observing what he first assumed was an unoccupied vehicle, he intended to check the license, but then saw by his headlights that appellant was an occupant. The officer approached the parked car and inquired about Mitchell's business and identity and used his identification card to run a routine check. This encounter involved no seizure of Mitchell, no restraint on his liberty and no restriction of his freedom of movement. The appellant was free to leave. There is no evidence in the record that Mitchell ever sought to leave or otherwise refused to communicate with the deputy or indicated a desire to terminate the encounter.
Thereafter, the deputy's actions were proper. The computer check flowed from the identification, and the arrest followed the discovery of the outstanding warrant. The search was incident and contemporaneous to the arrest. State v. Williams, 516 So. 2d 1081 (Fla. 2d DCA 1987). A lawful custodial arrest justifies the infringement of any privacy interest the arrestee may have. New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed. 2d 768, rehearing denied, 453 U.S. 950, 102 S. Ct. 26, 69 L. Ed. 2d 1036 (1981). The discovery of the cocaine pipes and ring baggie in the front seat provided the deputy with probable cause to search the contents of the bag of clothes. See Belton, 101 S.Ct. at 2864.
*1017 Reversed and remanded for proceedings consistent herewith.
PATTERSON and LAZZARA, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597068/ | 129 Wis. 2d 129 (1986)
384 N.W.2d 692
CREST CHEVROLET-OLDSMOBILE-CADILLAC, INC., Robert A. Doyle and Marilyn W. Doyle, Plaintiffs-Appellants,
v.
Roger WILLEMSEN, Betty Willemsen and A.O. Bauer Glass, Inc. a Wisconsin corporation, Defendants-Respondents-Petitioners.
No. 84-2015.
Supreme Court of Wisconsin.
Argued March 4, 1986.
Decided April 10, 1986.
*132 For the defendants-respondents-petitioners there were briefs by Paul G. Bonneson and Riemer Law Office, Delavan, and oral argument by Mr. Bonneson.
For the plaintiffs-appellants there was a brief by Patrick J. Hudec and Greenwald, Maier & Hudec, P.C., East Troy, and oral argument by Patrick J. Hudec.
LOUIS J. CECI, J.
This is a review of an unpublished decision of the court of appeals, dated May 15, 1985, which summarily reversed the judgment of the circuit court for Walworth county, John J. Byrnes, reserve judge. In dismissing the complaint, the circuit court held that the defendants did not act unreasonably in diverting surface water from their property onto plaintiffs' property. The court of appeals ruled that the diversion was unreasonable. We affirm the decision of the court of appeals.
The primary issue is whether the petitioners, Roger and Betty Willemsen, owners of A. O. Bauer Glass, Inc. (collectively, Bauer Glass) are liable for damages caused to the property of Crest Chevrolet-Oldsmobile-Cadillac, Inc. and Robert and Marilyn Doyle (collectively, Crest) under the reasonable use doctrine adopted by this court in State v. Deetz, 66 Wis. *133 2d 1, 224 N.W.2d 407 (1974). We hold that Bauer Glass acted unreasonably in diverting the flow of surface water from its property onto Crest's parcel. Bauer Glass is, therefore, liable to Crest for damages as a result of the surface water diversion. We also determine that although there is a general duty to mitigate avoidable consequences of harm caused by the creation of an intentional nuisance, Crest did not react unreasonably to the accumulation of surface water on its parcel.
The parties have stipulated to the facts leading up to this litigation. Crest and Bauer Glass own adjoining parcels of land in Delavan, Wisconsin. The Bauer Glass parcel lies immediately to the west of the Crest parcel. Prior to 1979, the Bauer Glass parcel was at a lower elevation than the Crest parcel. Historically, surface water flowed from the east across the Crest parcel and onto the Bauer Glass parcel, where the water either percolated into the ground or flowed to the north and northwest off the Bauer Glass parcel.
In 1979, Roger and Betty Willemsen purchased the undeveloped and unimproved Bauer Glass parcel with knowledge that the land was low in relation to properties to the east and that surface water generally accumulated on the Bauer Glass parcel. They then undertook to develop the parcel and to rectify the surface water problem by adding landfill to the property. When the landfill operation was complete, the Bauer Glass parcel stood at an elevation higher than any portion of the Crest parcel. The development also included installing a storm sewer system on the Bauer Glass parcel at a cost to Bauer Glass of $68,348.94, which included the cost to Bauer Glass of extending the city of Delavan storm sewer system to its property and to within several feet of the Crest parcel. Bauer Glass invited *134 Crest to participate in the project, specifically, by installing storm sewers on the lower portion of the Crest parcel at a cost to Crest of approximately $9,000, but Crest declined to join. The record reflects that Bauer Glass told Crest of the likelihood of surface water diversion onto the Crest parcel as a result of the Bauer Glass development operation.
There had been only minor puddling and no flooding on the Crest property prior to the Bauer Glass development. After completion of the development, however, surface water accumulated on the Crest parcel during periods of heavy precipitation or melting snow. The combination of the higher elevation of the Bauer Glass parcel in relation to the Crest parcel and the absence of a storm sewer serving the Crest parcel resulted in a damming effect on the Crest property of the historical flow of the surface water from the Crest and other east-lying parcels onto the Bauer Glass parcel. Water had to be pumped off the Crest parking lot as a result of the flooding, according to the parties' respective statements of facts.
The parties stipulated that Crest sustained damages in the amount of $4,500 to the west portion of its parking lot as a result of the flooding. This amount represents asphalt resurfacing costs incurred by Crest. In addition, Crest was ordered by the circuit court, which issued an alternative writ of mandamus, to connect its parcel to the Bauer Glass storm sewer system in order to avoid further damages to its parking lot. The cost to Crest for such connection was $11,620. The parties stipulated that Crest sustained a total of $16,120 in damages, representing the amount necessary to abate the nuisance and resurface the parking lot.
*135 Bauer Glass denied liability for the accumulation of standing water on the Crest parcel caused by the development of its own parcel. Crest initially filed a complaint on January 12, 1981, seeking damages, and amended its complaint several times thereafter. Bauer Glass answered by asserting eight affirmative defenses, including Crest's failure to mitigate damages, and five counterclaims, all of which were dismissed by Judge Byrnes in an order and partial summary judgment filed March 15, 1982.
In a decision filed June 18, 1984, the circuit court denied Crest's request for compensatory damages in the amount of $16,120. The court cited the $68,348.94 sum which Bauer Glass had expended to extend the Delavan storm sewer system to Bauer Glass's property in order to dispose of the surface water on its lot and noted that Bauer Glass had given Crest the opportunity to connect to the system. Bauer Glass was merely developing its property for business purposes as it had a legal right to do, the circuit court reasoned; it had "no duty to maintain its lot in the form of a neighborhood pond or catch basin." The court saw "no reason why Bauer [Glass] should have to stand the expense of Crest hooking up to the storm sewer to dispose of surface waters from the Crest lot." The court believed that each parcel owner should be required to stand the expense of hooking up to the sewer system. Although it did not specifically refer to the Deetz case in its decision, the circuit court found that any diversion of surface water from the Bauer Glass property onto the Crest property was neither intentional nor unreasonable conduct. Crest's claims for punitive damages and for attorney *136 fees under sec. 814.025, Stats.,[1] were, therefore, also necessarily denied.
The court of appeals summarily reversed the judgment of the circuit court. Applying the reasonable use doctrine as adopted by this court in Deetz, 66 Wis. 2d at 18-19, and as set forth in the Restatement (Second) of Torts, sec. 826(b)(1979), the court of appeals held that Bauer Glass was liable for the $16,120 in damages sustained by Crest. It determined that the Bauer Glass landfill project effectively blocked the normal flow of surface waters as the flow existed prior to the landfill project and was a legal cause of Crest's serious water problems. Because the court of appeals deemed the Bauer Glass conduct to be unreasonable, the court reversed and remanded the matter with instructions to award damages to Crest in the stipulated amount and to consider Crest's claim for punitive damages and attorney fees.
Bauer Glass requests this court to review the court of appeals' determination that its conduct was unreasonable. Bauer Glass states that the court of appeals did not consider the social utility of the development project, which it should have done. It also claims that the court of appeals failed to consider whether Crest mitigated its damages and that Crest's damages should *137 be reduced for Crest's failure to do so. Finally, Bauer Glass urges that comparative fault principles be applied in this case to apportion the liability of each party. Because the parties stipulated to the material facts underlying this case, the remaining questions are questions of law. We review questions of law without deference to the lower courts' reasoning. Milwaukee Met. Sewerage Dist. v. DNR, 126 Wis. 2d 63, 71, 375 N.W.2d 649 (1985).
Bauer Glass first asserts that the court of appeals failed to consider the social utility of the Bauer Glass development in reaching its conclusion that the conduct was unreasonable. Bauer Glass cites State v. Deetz, 66 Wis. 2d 1, to support its proposition that the utility of the developer's conduct must be analyzed before a developer's conduct be deemed unreasonable.
In Deetz, this court discarded the common enemy doctrine and adopted the reasonable use doctrine regarding the flow of surface waters. Under the former doctrine, surface water was viewed as a common enemy which each landowner was privileged to divert, repulse, or retain, even if some injury was thereby caused to surrounding landowners. See, Borchsenius v. Chicago, St. Paul, Minneapolis & Omaha R. Co., 96 Wis. 448, 450, 71 N.W. 884 (1897). On the other hand, the reasonable use doctrine essentially states that,
"`each possessor is legally privileged to make a reasonable use of his land, even though the flow of surface waters is altered thereby and causes some harm to others, but incurs liability when his harmful interference with the flow of surface waters is unreasonable.'" Deetz, 66 Wis. 2d at 14 (quoting Armstrong v. Francis Corp., 20 N.J. 320, 327, 120 A.2d 4 (1956)).
*138 The reasonable use doctrine is substantially embodied in sec. 822 of the Restatement (Second) of Torts (1979). That section reads:
"Section 822. General Rule
"One is subject to liability for a private nuisance[2] if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either
"(a) intentional and unreasonable, or
"(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities."
Section 822(a) is applicable here. Bauer Glass does not dispute that the accumulation of surface waters onto the Crest parcel was substantially certain to result from its landfill conduct[3] or that its conduct was a legal cause of the harm sustained by Crest. It only contends that the surface water invasion is not unreasonable when the social utility of its development conduct is considered.
*139 The unreasonableness of an intentional invasion is set forth in Restatement (Second) of Torts, sec. 826 (1979). That section provides:
"Section 826. Unreasonableness of Intentional Invasion
"An intentional invasion of another's interest in the use and enjoyment of land is unreasonable if
"(a) the gravity of the harm outweighs the utility of the actor's conduct, or
"(b) the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible."
Section 826(a) was the focus of our application of the reasonable use doctrine in Deetz, 66 Wis. 2d at 19. In that case, Deetz, a landowner, sought to develop for residential purposes a large area of land on a bluff overlooking a lake. The development project exacerbated what had previously been only minor erosion and runoff from the bluff into the lake below. The lower-lying property owners brought suit to enjoin the development project, which had rendered the lake unnavigable in several areas because of the increased accumulation of sand and sediment. After determining that the evidence was prima facia proof of the gravity of the harm, we remanded to the circuit court for its consideration of the utility and social value of Deetz's conduct. Id. at 20-21.
Crest and Bauer Glass agree that sec. 826(a) of the Restatement (Second) of Torts is inapplicable here. Crest does not maintain that the gravity of the harm caused by Bauer Glass's property development outweighs the utility of its conduct. Crest instead asserts *140 under sec. 826(b) that the harm caused by Bauer Glass's conduct is serious and that the financial burden to Bauer Glass for compensating for such harm would not have rendered infeasible the continuation of the development project. Bauer Glass argues that a correct application of sec. 826(b) must include an analysis of the social utility of its conduct.
Because Deetz dealt only with the application of sec. 826(a), we are at liberty to consider whether sec. 826(b) requires a consideration of the social utility of the defendant's conduct in creating the surface water invasion. We note that sec. 826(b) makes no express reference to such a consideration; if social utility is a consideration, it must be implied from the application of the sec. 826(b) test. We find, however, nothing inherent in the sec. 826(b) test which dictates that the fact finder must undertake a social utility analysis of an actor's conduct in order to reach a determination of the reasonableness of that conduct.
The first element of the sec. 826(b) testwhether the harm caused by the conduct is serious[4] asks the fact finder to consider the quality of the harm sustained by Crest. We look, as the court of appeals did, to sec. 827 of the Restatement (Second) of Torts (1979), for factors which bear upon the seriousness of the harm. That section sets forth:
*141 "Section 827. Gravity of HarmFactors Involved
"In determining the gravity of the harm from an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:
"(a) The extent of the harm involved;
"(b) the character of the harm involved;
"(c) the social value that the law attaches to the type of use or enjoyment invaded;
"(d) the suitability of the particular use or enjoyment invaded to the character of the locality; and
"(e) the burden of the person harmed of avoiding the harm."
Although the sec. 827 factors help to define the gravity of harm under sec. 826(a), we find that they are no less pertinent to an inquiry into whether the harm sustained by a nuisance victim is serious for purposes of sec. 826(b). The factors listed in sec. 827 are not exhaustive. The fact finder may consider other relevant factors in addition to those listed.
Applying the sec. 827 factors, we hold that Crest sustained serious harm as a result of the intentional invasion of surface waters caused by Bauer Glass's development project. Regarding the extent of the harm involved, the record includes photographs of the flooding which occurred on the west portion of the Crest parking lot. The parties stipulated that that portion of the lot sustained damages of $4,500, reflecting the cost of resurfacing the lot's asphalt surface, which had cracked from the water accumulation. The character of the harm also suggests its seriousness; the accumulation *142 of surface water constituted a physical invasion to the Crest parcel and rendered the affected portion of the lot difficult if not impossible to utilize during periods of heavy precipitation or melting snow. There is little doubt that the law does not disfavor the use to which the Crest property was put: a lawful commercial venture. There is significant social value to commercial enterprises such as the one in which Crest engaged.
The record does not reflect any lack of suitability of Crest's commercial venture in relation to its location. There is nothing to suggest that the Crest enterprise creates an eyesore, that it causes a zoning difficulty for the city of Delavan, or that the land is inherently unsuitable for the use to which it is being put.
Crest has shouldered a significant burden in an attempt to avoid the harm. The parties stipulated that Crest expended $11,620 in response to an alternative writ of mandamus issued by the circuit court to "hook up" to the Bauer Glass storm sewer system. Even if Crest had not been so ordered, Bauer Glass estimates that Crest could have avoided the harm by expending $9,000 at the time when Bauer Glass initially invited Crest to hook up to its system. In either event, Crest faced a significant burden to maintain the status quo of its property, that is, to avoid the harm of the Bauer Glass development.[5]
*143 We also find that the financial burden to Bauer Glass of compensating Crest for the harm it sustained would not have rendered the continuation of Bauer Glass's conduct infeasible. This is the second element of the sec. 826(b) test. Evidence in the record indicates that Roger and Betty Willemsen paid $201,000 to purchase the Bauer Glass parcel and spent over $68,000 to install a storm sewer system. By its own estimate, Bauer Glass could have avoided the serious harm sustained by Crest by expending $9,000 to hook up a storm sewer system along its common property line with Crest. The stipulated harm sustained by Crest is $16,120, which represents Crest's cost of hooking up to the Bauer Glass storm sewer system and its cost of resurfacing a portion of its parking lot. We agree with the court of appeals that the payment of $16,120 in damages to Crest would not have rendered infeasible a project on which Bauer Glass had previously expended approximately $269,000. Either figure, $9,000 or $16,120, represents only a fraction of the total cost of the Bauer Glass development and would not have kept Bauer Glass from proceeding with the development of its property. Indeed, Bauer Glass does not argue that the financial burden of compensating Crest for the harm it sustained would have been prohibitive in relation to its continuation of the development project.
Because we find that Crest suffered serious harm caused by the intentional invasion of surface water stemming from Bauer Glass's conduct and because *144 compensating for the harm sustained would not have rendered completion of the project infeasible, we find that the invasion of surface water caused by Bauer Glass's conduct was unreasonable. We also find that applying the sec. 826(b) test does not require a social utility analysis of the developer's conduct. The court of appeals did not err, therefore, in excluding a consideration of the social utility of Bauer Glass's conduct from its sec. 826(b) analysis.
We note that a social utility analysis of a defendant's conduct is expressly undertaken when the sec. 826(a) test is employed. Section 826(a) compares the gravity of plaintiff's harm with the social value of the actor's conduct and is more properly applied whenever the suit is for an injunction prohibiting the intrusive activity, as in Deetz. See, Restatement (Second) of Torts, sec. 826, comment f, at 123 (1979). An action for damages concedes that an actor's invasion-causing conduct might have some social utility. But to conclude that an actor's conduct is socially useful does not assist a fact finder in conclusively determining, in an action for damages, whether certain conduct is unreasonable. Even if the development of the Bauer Glass parcel is considered socially useful, an inquiry into the existence of serious harm and the feasibility of continuing certain activity if the harm is compensated must still be undertaken. See, e.g., CEW Mgmt. Corp. v. First Fed. Savings & Loan, 88 Wis. 2d 631, 634, 277 N.W.2d 766 (1979). In other words, a fact finder must still determine the reasonableness of an actor's conduct in relation to the plaintiff, even if the conduct has social utility.
*145 Although we hold that an application of the Sec. 826(b) test does not require an express consideration of the social utility of a defendant's conduct, we note that a close reading of the relevant comments to the cited Restatement sections indicates that at least one component of a social utility analysis is subsumed in the Sec. 826(b) test. Section 828(c) of the Restatement provides:
"Section 828. Utility of ConductFactors Involved
"In determining the utility of conduct that causes an intentional invasion of another's interest in the use and enjoyment of land, the following factors are important:
"...
"(c) the impracticability of preventing or avoiding the invasion."
In discussing the impracticability of avoiding the invasion, comment h to Sec. 828 states that,
"[i]t is only when an intentional invasion is practicably unavoidable that one can be justified in causing it; and even then, he is not justified if the gravity of harm is too great. An invasion is practicably avoidable if the actor by some means can substantially reduce the harm without incurring prohibitive expense or hardship." Restatement (Second) of Torts, sec. 828, comment h (1979).
The element of the sec. 826(b) test which requires a determination of the feasibility of continuing certain conduct after compensating for its harm is very similar to subsection (c) of sec. 828.
*146 Bauer Glass next argues that the overall social utility of an actor's conduct should be expressly examined in a sec. 826(b) analysis because of the important policy underpinnings of the reasonable use doctrine in effecting contemporary social goals. Bauer Glass cites to Deetz, wherein we said that the reasonable use doctrine evidences a retained policy of favoring land improvement and development. Deetz, 66 Wis. 2d at 20. But while the reasonable use doctrine may embrace a policy of land development and improvement, it must also embrace a concomitant policy, namely, that society has a strong interest in maintaining developed land without impairing an owner's use and enjoyment of it, whether the use be personal or economic. As this court said in Prah v. Maretti, 108 Wis. 2d 223, 237, 321 N.W.2d 182 (1982), "the policy of favoring unhindered private development in an expanding economy is no longer in harmony with the realities of our society.... The need for easy and rapid development is not as great today as it once was...."
A consideration of the social utility of a defendant's conduct is not an express factor in a sec. 826(b) analysis. The reasonable use doctrine, unlike the common enemy doctrine, does not allow a landowner the unlimited privilege to divert surface water from his property onto another's property. The doctrine respects a neighboring landowner's status quo and affords a landowner who has developed his land, like Crest, to be free from the intentional intrusion of surface water on his property which is the result of a defendant's *147 unreasonable conduct and which impairs the use and enjoyment of his land.[6]
Having determined that Bauer Glass's conduct in developing its land was unreasonable insofar as it caused serious harm to Crest and the compensation for the harm was not prohibitive to Bauer Glass's development project, we next consider whether Bauer Glass is liable for the entire $16,120 in damages sustained by Crest. Bauer Glass asserts that Crest's recovery for damage should be reduced because of Crest's failure to mitigate its damages. Bauer Glass cites Schiro v. Oriental Realty Co., 272 Wis. 537, 76 N.W.2d 355 (1956), to support its proposition.
In Schiro, a plaintiff-landowner commenced a nuisance action against an adjoining landowner to recover damages for personal injuries sustained as a result of a fall resulting from a deteriorating concrete retaining *148 wall. A primary issue in Schiro was whether contributory negligence principles may act as a defense in a nuisance action in which the underlying conduct was allegedly negligent. Id. at 545-47. But this court also identified a minimization principle applicable to nuisance actions where a plaintiff seeks to recover damages resulting from interference with the use and enjoyment of his land.
"This principle is that, if the plaintiff by a reasonable expenditure on his part could have remedied the condition or protected his property, or the enjoyable use thereof, from further damage or interference, and he fails so to do, he cannot hold the defendant liable for the subsequent occurring damage. Such failure by a plaintiff to minimize his damages is a defense in cases of nuisance resulting from intentional as well as negligent acts of a defendant. Prosser, Law of Torts, (2d ed.), p. 424, sec. 74." Schiro, 272 Wis. at 549.
There is no question that a nuisance victim has an obligation to avoid the consequences of an intentional or negligent nuisance when it is reasonable to do so. Bauer Glass argues in its brief that its liability for Crest's damages, if any, should be reduced to $9,000, representing the stipulated amount which Crest could have expended to connect its parcel with the Bauer Glass storm sewer system when Bauer Glass initially invited Crest to do so.
Whether Crest could have avoided any consequences of the nuisance is a function of what reasonable steps Crest could have taken to mitigate its damages. "[A] plaintiff never is required to do more than to act reasonably under the circumstances." W. Prosser, Law of Torts, sec. 91 at 611 (4th ed. 1971). "If *149 the effort, risk, sacrifice, or expense which the injured person must incur to avoid or minimize the loss or injury is such that a reasonable person under the circumstances might decline to incur it, the injured party's failure to act will not bar recovery of full damages." Kuhlman, Inc. v. G. Heileman Brewing Co., Inc., 83 Wis. 2d 749, 752, 266 N.W.2d 382 (1978).
Bauer Glass proposes that Crest's damages be reduced to $9,000, representing the amount which Crest could have initially expended to hook up to the Bauer Glass sewer system. But we decline to hold that Crest's initial rejection of the invitation to mitigate its damages by expending $9,000 was unreasonable. Although a nuisance victim is required to mitigate his damages "when with slight labor, expense and inconvenience he might have prevented [some or all of the damages)," W. Prosser, Law of Torts, sec. 91 at 611 (4th ed. 1971), we do not view an expenditure of $9,000 as being insignificant or slight under the facts and circumstances of this case. While an obligation to mitigate damages must include efforts which are reasonable under the circumstances, the efforts need not be substantial in relation to the damages sustained. A court generally will not reduce recoverable damages based upon the expenditure of an amount necessary to minimize damages (here, $9,000) unless such amount is small in comparison to the possible losses. Sprecher v. Weston's Bar, Inc., 78 Wis. 2d 26, 45, 253 N.W.2d 493 (1977). Damages should not be reduced where only "`a substantial expenditure would have minimized the total loss....'" Id. (quoting from 22 Am. Jur. 2d, Damages, sec. 37 at 61).
*150 The $9,000 figure is a substantial amount both in relation to (1) the stipulated amount of total damages ($16,120) and (2) the stipulated amount of damages to Crest's parking lot ($4,500). The doctrine of avoidable consequences is not intended to place upon a nuisance victim a substantial effort to minimize his damage, but only a reasonable one.[7] Crest's damages should not be reduced to the $9,000 figure asserted by Bauer Glass.
On the other hand, Crest should be allowed to recover any substantial, reasonable efforts it undertook to minimize the damages caused by Bauer Glass's conduct. Here, the circuit court issued an alternative writ of mandamus which ordered Crest to hook up to the Bauer Glass sewer system, "so as to prevent further damages otherwise resulting from the flow of surface waters...." Crest obeyed the writ and connected a storm sewer system to the Bauer Glass system at a stipulated expense of $11,620. A plaintiff is allowed to recover reasonable expenses which he has incurred in avoiding the consequences of the nuisance. W. Prosser, Law of Torts, sec. 90 at 603 (4th ed. 1971). Crest expended the $11,620 in response to a writ issued by the circuit court; Bauer Glass does not suggest that the figure is exaggerated, or that Crest's obedience of the writ *151 was unreasonable. Crest may recover the $11,620 expended on abating the nuisance and $4,500 for damages sustained to its parking lot.
Lastly, Bauer Glass urges this court to reverse the decision of the court of appeals because, it argues, comparative fault principles should be applied in an intentional nuisance action in order to apportion the liability of each party. Bauer Glass claims that Crest was negligent with respect to its use and enjoyment of its own land by failing to take reasonable measures to avoid additional damages to its parcel after Bauer Glass commenced improving its property in 1979.
By arguing that a comparative fault theory should apply to this case, Bauer Glass is simply attempting to circumvent our earlier mitigation analysis and reapply a mitigation analysis under another name. We have, however, already considered Crest's conduct after the nuisance arose and underscore the fact that Crest's damages are not to be reduced under a mitigation of damages theory.
Because a comparative fault analysis is inapplicable to the facts presented by this case, we do not address Crest's arguments that Bauer Glass failed to raise the comparative fault issue to the circuit court or to the court of appeals.
We reiterate that an analysis of unreasonable conduct under sec. 826(b) of the Restatement (Second) of Torts does not necessitate an express consideration of the social utility of a defendant's conduct; that Bauer Glass's conduct in causing the accumulation of surface water on Crest's property was unreasonable under the test set forth in sec. 826(b); that Crest is entitled to an unreduced award of $16,120 in damages; and that comparative *152 fault principles are inapplicable to this case. We affirm the order of the court of appeals, which remanded the matter to the circuit court with instructions to award Crest damages in the stated amount and to address the punitive damages and attorney fees issues raised by Crest which were not initially addressed by the circuit court.
By the Court.The decision of the court of appeals is affirmed.
NOTES
[1] That statute provides in pertinent part:
"814.025 Costs upon frivolous claims and counterclaims. (1) If an action or special proceeding commenced or continued by a plaintiff or a counterclaim, defense or cross complaint commenced, used or continued by a defendant is found, at any time during the proceedings or upon judgment, to be frivolous by the court, the court shall award to the successful party costs determined under s. 814.04 and reasonable attorney fees."
[2] A private nuisance is an unreasonable interference with the interests of an individual in the use and enjoyment of land. Krueger v. Mitchell, 112 Wis. 2d 88, 103, 332 N.W.2d 733 (1983).
[3] Section 825 of Restatement (Second) of Torts (1979) states:
"Section 825. Intentional InvasionWhat Constitutes
"An invasion of another's interest in the use and enjoyment of land or an interference with the public right, is intentional if the actor
"(a) acts for the purpose of causing it, or
"(b) knows that it is resulting or is substantially certain to result from his conduct."
[4] We note, as the court of appeals did, that Restatement (Second) of Torts, sec. 826(b) (Tent. draft No. 18, 1972), provided that an intentional invasion would be unreasonable if the harm caused by the invasion were "substantial." In the Restatement (Second) of Torts, sec. 826(b) (1979), the word "substantial" was changed to "serious."
[5] A close corollary of analyzing the burden to Crest of avoiding the harm is Crest's ability to mitigate its damages. Bauer Glass argues that if Crest's harm is found to be serious, recoverable damages be reduced to $9,000, representing the amount which Crest could have expended to hook up to the Bauer Glass sewer system when initially invited to do so. We discuss Bauer Glass's mitigation argument infra.
[6] The reasonable use doctrine reaches an economically sound result. If Bauer Glass were allowed to cause the accumulation of surface water on Crest's lot, it is probable that the property value of the Crest lot would diminish: flooded property is worth less than nonflooded property. On the other hand, Bauer Glass's property values are almost certain to increase as a result of the improvements to its parcel. It would be unfair, however, to allow Bauer Glass to effect a decrease in Crest's property value as a result of the positive development of its own land. The law should promote the reasonable improvement of a landowner's parcel, but not at the expense of another landowner. The reasonable use doctrine encourages a landowner to solve his surface water problems as long as the solution does not unreasonably decrease the property value of any of his neighbors.
Thus, although the trial court's statement that Bauer Glass had "no duty to maintain its lot in the form of a neighborhood pond or catch basin" is an alluring declaration, Bauer Glass and other property developers have a duty to act reasonably in their property development.
[7] The record suggests that Crest took reasonable steps to minimize the harm to its use and enjoyment of land, short of initially hooking up to the Bauer Glass sewer system at a cost of $9,000. Photographs in the record show the flooded portion of the Crest parking lot being pumped after periods of heavy precipitation, suggesting that Crest did more than merely remain idle while water accumulated on its property. The parties do not include any such pumping costs in their stipulated damages, and we, therefore, do not consider the recovery of such costs by Crest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597071/ | 148 Mich. App. 260 (1986)
384 N.W.2d 414
HARVEY
v.
SECURITY SERVICES, INC.
Docket No. 82347.
Michigan Court of Appeals.
Decided January 7, 1986.
Zeff, Zeff & Materna (by Michael T. Materna), and Gromek, Bendure & Thomas (by Mark R. Bendure), of counsel, for plaintiff.
Foster, Meadows & Ballard, P.C. (by John L. Foster and Paul D. Galea), for defendant.
Before: BEASLEY, P.J., and V.J. BRENNAN and CYNAR, JJ.
PER CURIAM.
In this wrongful death action, a Wayne County Circuit Court jury found in favor of plaintiff and against defendant, Security Services, Inc., in the amount of $939,000. Defendant made various motions below, including a motion for judgment notwithstanding the verdict, new trial or remittitur, which were denied. Defendant now appeals as of right. Plaintiff cross-appeals.
On the day that the accident complained of occurred, August 31, 1977, plaintiff's decedent, Herbert H. Harvey, was employed by Suburban Tile at Dayton-Hudson's Lakeside Shopping Center construction site. When decedent arrived at the construction site, the electrical power had been turned off in the building and decedent apparently had difficulty seeing in the dark. As he walked into the shopping center building, he fell into a *264 large unbarricaded hole which was located approximately 120 feet from the construction worker's entrance to the building. Shortly thereafter, a construction worker found decedent lying in the hole. Decedent was still alive but was seriously injured.
John Marinkov testified that he was employed as a security guard by defendant on the day decedent fell into the hole and that he greeted dededent as he walked into the construction site area. Although Marinkov had observed that the hole was not barricaded the night before the accident complained of occurred, he did not warn decedent about the unbarricaded hole.
Maryann Wolar was also working with Marinkov as one of defendant's security guards when decedent entered the construction site. She testified that she was aware of the existence of the hole prior to the accident, but could not remember if she had observed the hole on the night in question. Wolar stated that, if she had been aware of the fact that the barricades surrounding the hole had been removed, she would have replaced them for safety reasons. She further indicated that had she been aware of any danger she would have informed the construction workers, including decedent, of the danger when they entered the bulding.
First, defendant argues that the trial court erred in permitting one of plaintiff's witnesses, George F. Bowden, to provide expert testimony with respect to the standard of care of the owner of the premises.
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and a timely objection appears of record. MRE 103. Our review of the record in this case indicates that defendant objected to plaintiff's examination of Bowden concerning *265 the standard of care owed by the owner of the premises on the basis that the question lacked specificity. However, there was no objection raised on the basis that Bowden did not qualify as an expert on this particular matter. Objections based on one ground are insufficient to preserve an appellate attack based on different grounds. Marietta v Cliffs Ridge, Inc. 385 Mich. 364, 374; 189 NW2d 208 (1971). Defendant has therefore failed to preserve this issue for appellate review.
Defendant next argues that the trial court erred by denying defendant's motion for leave to amend its answer prior to trial and in subsequently denying defendant's motion to amend the pleadings to conform to the proofs.
GCR 1963, 118.1 [MCR 2.118(A)] provides in pertinent part that leave to amend shall be freely given when justice so requires. The decision to grant or deny leave is within the discretion of the trial court and the decision will not be reversed absent an abuse of discretion. Welke v Kuzilla, 140 Mich. App. 658, 665; 365 NW2d 205 (1985). The trial court's discretion is limited in that the court must find that justice would not be served by an amendment to the pleadings before denying a motion to amend. Mere lateness in moving to amend is not a sufficient reason to deny the motion, absent unfair prejudice to the opposing party. Ben P Fyke & Sons v Gunter Co, 390 Mich. 649, 658-661; 213 NW2d 134 (1973). The allowance of an amendment is not an act of grace, but a right of a litigant seeking to amend "`[i]n the absence of any apparent or declared reason-such as undue delay, bad faith or dilatory motive * * *, repeated failure to cure deficiencies * * *, undue prejudice * * *, futility of amendment, etc.'" Id., p 659.[1]
*266 In the instant case, defendant filed a motion to amend its answer on May 4, 1984, approximately three and one half years after the complaint was filed. On May 25, 1984, Wayne County Circuit Court Judge Thomas J. Foley denied defendant's motion to amend its answer to plead comparative negligence, stating: "I think it is late and I see no justification for it after discovery is closed. I can see where a lot of dicovery will have to be taken." Defendant then moved for rehearing. The motion was heard on June 22, 1984. Judge Foley informed defendant that the discovery period had ended and that the amendment would necessitate a "tremendous amount of discovery" which would probably cause a postponement in the trial date. Judge Foley concluded that he did not have the authority to adjourn the trial date. Defendant then filed a motion to reopen discovery which was heard on July 6, 1984, at proceedings held before Judge Richard D. Dunn. Judge Dunn declined to rule on the motion, apparently on the basis that Judge Foley had the authority to grant discovery. Judge Foley then ruled on defendant's motion to amend as follows:
"The Court: As I said before, it substantially changes the theories involved that the defendant will have to defend against. It is a material change in the case; it is on the eve of trial. As long as that trial date stays where it is, I haven't changed my opinion. It is just that basic."
Our review of the record in this case indicates that plaintiff might have been prejudiced by defendant's untimely amendment. The trial court therefore did not abuse its discretion in denying defendant's motion to amend its answer.
Defendant further contends that the trial court erred in refusing to allow defendant to amend the *267 pleadings to conform to the proofs. GCR 1963, 118.3 [MCR 2.118(C)] provides:
"Amendments to Conform to the Evidence. When issues not raised by pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In such case an amendment of the pleadings to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, amendment to conform to such proof shall not be allowed unless the party desiring amendment satisifies the court that the amendment and the admission of such evidence would not prejudice the objecting party in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence."
The record indicates that testimony was presented at trial which, if believed, indicated that there was sufficient lighting in and around the area of the hole which decedent fell into so as to make the hole visible to passers-by. Also, there was testimony that decedent was carrying a flashlight when he entered the building. Defendant claims that because there was no objection to said testimony, defendant was entitled to amend the pleadings at the end of trial to raise the affirmative defense of comparative negligence. We disagree.
GCR 1963, 118.3 [MCR 2.118(C)] requires that the issue be at least impliedly tried. Here, the issue of comparative negligence was not impliedly tired. The testimony which plaintiff elicited at trial regarding the lighting conditions of the construction site during the time in question was introduced for reasons unrelated to decedent's possible negligence. The testimony was introduced to *268 show that the lighting conditions were so poor that they made the premises unsafe and that notification of the owner was requried. The testimony was also relevant to show the reliability of the witnesses' observations. We conclude that the trial court properly denied defendnant's motion to amend the pleadings to conform to the evidence.
Defendant next argues that the misconduct of plaintiff's counsel denied defendant a fair trial. This argument is based upon alleged improprieties during counsel's closing argument.
In reviewing defendant's argument we follow the procedure set forth by the Supreme Court in Reetz v Kinsman Marine Transit Co, 416 Mich. 97, 102-103; 330 NW2d 638 (1982):
"When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted. Tainted verdicts need not be allowed to stand simply because a lawyer or judge or both failed to protect the interests of the prejudiced party by timely action." (Footnotes omitted.)
Defendant first contends that plaintiff's counsel improperly referred to facts not in evidence. Defendant states that plaintiff's counsel told the jury, on numerous occasions, what the owner of the construction site premises would have done had *269 the owner been advised that the hole was not barricaded. Because defendant failed to object to these statements, the issue has not been preserved for apellate review. Furthermore, the challenged statements did not deny defendant a fair trial. Although no evidence was introduced with respect to what information the owner had at the time of the incident, there was evidence that defendant had not informed the owner about the condition of the premises. Also, there was evidence that the standard of care in the construction industry required that once an owner received information that a site was unsafe in some manner it should shut down the site and not allow anyone to enter the site.
Defendant failed to object to plaintiff's misstatement of decedent's lost earnings. The claimed error has therefore not been properly preserved for appellate review. Plaintiff's counsel did state the correct amount of lost earnings at one point during closing argument. The jury was instructed that it was the sole judge of the facts, that the arguments, statements and remarks of the attorneys were not evidence, and that anything not supported by the evidence should be discarded. We conclude that defendant was not denied a fair trial by the plaintiff's misstatement of decedent's lost earnings.
Defendant also contends that plaintiff's counsel made other statements concerning facts not in evidence. Defendant did object to those statements and the trial court instructed plaintiff's counsel to "limit it to the evidence". While the challenged statements were improper, we decline to reverse on this point because the remarks make by plaintiff's counsel did not deny defendant a fair trial.
Defendant next contends that plaintiff's counsel made improper references to the absence of witnesses. *270 It is proper for counsel to point out that an opposing party has failed to produce evidence that it might have produced. Reetz, supra, p 109. Defendant's argument is therefore without merit.
Defendant's argument that reversal is required because plaintiff's counsel referred to insurance is not supported by the record. The challenged statement did not expressly mention insurance and was in response to defense counsel's statements that plaintiff wanted money out of his client. Reversal is not required on this point.[2]
Defendant's next argument involves the size of the jury award. Defendant claims that the jury award of $939,000 is grossly excessive. Defendant also contends that the jury did not rationally and dispassionately determine the size of the award.
A reviewing court will substitute its judgment for that of the jury only where the verdict has been secured by imporper methods, prejudice or sympathy, or where it is so excessive as to "shock the judicial conscience". Gillispie v Board of Tenant Affairs of the Detroit Housing Comm, 122 Mich. App. 699, 704; 332 NW2d 474 (1983), lv den 417 Mich 1100.37 (1983). Where a verdict is within the range of evidence produced at trial, this Court will not reverse it as excessive. Kovacs v Chesapeake & O R Co, 134 Mich. App. 514, 542; 351 NW2d 581 (1984).
Upon review of the record, we conclude that the record supports the jury award.
Decedent was 61 years old at the time of his death and had a life expectancy of 15.44 years. Michael Minchella, Vice President of Suburban Tile, testified that plaintiff's decedent earned approximately $15 per hour at the time of the accident. He also testified that decedent was a reliable *271 and good worker and had no problems with alcoholism on the job. If decedent had continued to work throughout his life expectancy, he would have obtained earnings of $480,480.
Plaintiff's decedent's children testified that they missed their father, that they had had a good relationship with him and that they were a close family. Plaintiff's decedent had nine children. The record indicates that the jury's award amounts to approximately $100,000 per child or $7,000 per child per year, considering plaintiff's decedent's life expectancy at the time of his death. We do not believe that the jury's verdict is so excessive that it shocks the judicial conscience. See May v Grosse Pointe Park, 122 Mich. App. 295, 298; 332 NW2d 411 (1982) (award of $1,145,000 to parents and three siblings was within limits of what reasonable minds might deem just compensation for the imponderable loss of society and companionship).
Plaintiff, as cross-appellant, argues that the trial court erred in amending the original order of judgment dated August 23, 1984. The trial court amended the original order of judgment by recalculating the statutory[3] interest to which plaintiff was entitled. Prior to the filing of the complaint in the present case, plaintiff filed an action against several other defendants, including Dayton-Hudson. That action involved the same accident complained of herein and was settled prior to the jury verdict in this case for $300,000. The trial court in this action properly amended the original order of judgment by deducting the $300,000 settlement from the $939,000 jury award before recalculating the statutory interest. The statutory interest was therefore based on the remaining amount of damages. *272 Silisky v Midland-Ross Corp, 97 Mich. App. 470, 476; 296 NW2d 576 (1980), lv den 414 Mich. 868 (1982). When plaintiff accepted the $300,000 settlement, he waived his right to statutory interest on that amount of the total damages awarded by the jury. Rittenhouse v Erhart, 126 Mich. 674, 682; 337 NW2d 626 (1983), lv granted 418 Mich. 955 (1984).[4] We conclude that it was within the trial court's discretion to amend the original judgment to allow the proper calculation of the statory interest. GCR 1963, 528.3 [MCR 2.612(C)].
Affirmed.
NOTES
[1] Quoting, Foman v Davis, 371 U.S. 178, 182; 83 S. Ct. 227, 230; 9 L. Ed. 2d 222, 226 (1962).
[2] MCL 500.3030; MSA 24.13030 provides that no reference to insurance should be made during the course of trial.
[3] See MCL 600.6013; MSA 27A.6013, which provides that interest shall be allowed on a money judgment recovered in a civil action, as provided in this section.
[4] Leave to appeal granted and limited to the following issues: 1) whether this Court erred in its method of calculating the judgment amount, and 2) whether this Court erred in its determination of the date from which the appellant is to be charged judgment interest. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597066/ | 638 So. 2d 738 (1994)
Johnny MOWDY and Martin Scrivner,
v.
STATE of Mississippi.
No. 91-KP-1071.
Supreme Court of Mississippi.
February 3, 1994.
Johnny Mowdy, pro se.
Martin Scrivner, pro se.
Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.
En Banc.
SMITH, Justice, for the Court:
On August 9, 1989 Johnny Mowdy and Martin Scrivner each pleaded guilty in Warren County Circuit Court to six counts of aggravated assault stemming from a drive-by shooting on May 28, 1989, outside a Vicksburg nightclub. Based on the recommendation of the State, they both were sentenced to the custody of the Department of Corrections for twenty-five years for all charges. They were transported to Parchman Penitentiary promptly after sentencing. *739 Subsequently, both filed post-conviction relief petitions in the Circuit Court of Warren County contesting the voluntariness of their pleas.
Feeling aggrieved as a result of a summary judgment issued by the circuit judge, Mowdy and Scrivner appeal to this Court, assigning as error the circuit court's grant of summary judgment to the State. We hold that this case is one of those instances where conflicting affidavits do not warrant an evidentiary hearing. The circuit judge correctly entered summary judgment due to the absence of a genuine issue of material fact based on the entirety of the record before the lower court.
THE FACTS
On May 28, 1989, at approximately 2:10 a.m., several rifle shots were fired from a van into a crowd of people standing outside the Dodge City Lounge in Vicksburg, Mississippi. This "drive-by" shooting resulted in injuries to six people. The occupants of the van were the driver Martin Scrivner, and passengers in the front seat, Rose Marie Hogan and Johnny Mowdy. A Vicksburg police officer stopped the van shortly after the shootings and took all three individuals into custody.
Separate statements were given by each individual. All three statements were initially similar, but subsequently they parted company significantly on several major facts. Mowdy and Scrivner's statements indicated that shortly before the shooting incident, they were with co-defendant Rose Marie Hogan's husband, Danny Hogan, when he attempted to buy "a smoke" from a guy named "Slick" at the Dodge City Lounge. Danny was "ripped off," losing his money, and receiving no drugs in return. To make matters worse, he was beaten unconscious in the process by three subjects. Mowdy and Scrivner carried Danny home to his wife Rose. Mowdy, Scrivner and Rose then drove by the Dodge City Lounge. Mowdy and Scrivner both identified Rose as the "triggerman." Scrivner's statement to police mirrors Mowdy's except that he failed to mention the drugs and never explained why the three of them were at the Dodge City Lounge initially. Scrivner also stated that they had fired the gun used in the shooting earlier that day at Danny's house, and that Mowdy had talked about buying the gun from Danny. Scrivner claimed Rose wanted to go back to Dodge City Lounge to ask the guy why he took Danny's money. Mowdy further claimed that Rose wanted them to take her back by the Dodge City Lounge because, as she stated, "I am going to go and shoot the mother-fuckers, because don't nobody mess with my man or my money." Neither Mowdy nor Scrivner ever explained how Rose ended up with the gun that the three men had been shooting earlier that day. Also, Mowdy never claimed that he discussed buying the gun from Danny.
Rose Marie Hogan stated that Mowdy, Scrivner and her husband, Danny, had been out drinking that night, and when the three returned, Danny asked her to go to the store to get cigarettes for him. He was allegedly unable to get them for himself because he was too intoxicated. She claimed Mowdy and Scrivner went with her because they wanted to see the riverfront in Vicksburg. Rose stated that on the way to the store Scrivner deviated from her instructions and drove by the Dodge City Lounge. She claimed that Mowdy, who was seated next to the window on the front passenger's side, picked up a rifle and began shooting from the moving van as they passed the Dodge City Lounge. If Rose knew of the trio's prior attempt to purchase drugs, she never mentioned it to the police officers.
Scrivner and Mowdy appeared in the Warren County Circuit Court and changed their pleas from not guilty to guilty to the six-count aggravated assault indictment. During the course of questioning by the court, they both responded that they had not been induced to plead guilty by promises or threats from anyone, including their lawyer. The court ultimately accepted their pleas, finding them "intelligently and understandingly made." The State recommended that Mowdy and Scrivner be sentenced to a total of twenty-five years each for all charges. The court accepted that recommendation. They were promptly moved to Parchman to begin serving their sentences.
*740 Scrivner and Mowdy filed a motion for post-conviction relief in April 1991. They contended their defense counsel had rendered ineffective assistance by failing to advise them that they had been incorrectly charged with six counts of "aggravated assault" as accomplices when they should have been charged as "accessor[ies] after the fact." As a second basis for their contention that their guilty pleas were involuntary, Scrivner and Mowdy claimed that their lawyer had made promises to them regarding their incarceration which never came to fruition. They said that, despite the expressed sentencing recommendation from the State, their lawyer had assured them that "they would not serve more than 3 years, and they would remain either at the county jail or a nearby Community Work Center, if they would also agree to testify for the State in the Rosemarie [sic] Hogan trial." Scrivner and Mowdy also made several other allegations of false promises by the lawyer. The petitioners attached a sworn letter from Martin Scrivner's mother dated February 15, 1991. The letter described the discussions Mrs. Scrivner had with Travis Vance, the attorney who represented defendants Martin Scrivner and Johnny Mowdy. The letter stated Travis Vance told Mrs. Scrivner during their first meeting that "he was almost sure that Martin would get some `time', but that he, Travis Vance, could get the charge down to one count of accessory to aggravated assault. That would get the time down to five or ten years." The substance of the affidavit was that the attorneys would attempt to have Mowdy and Scrivner serve their time locally and that they were confident they would succeed, but there was no guarantee.
The State filed its motion for summary judgment, and in support of the motion, the State said:
The State would show that Petitioners were advised of all their constitutional rights and all possible defenses to the charges. At no time were any promises or guarantees made to Petitioners regarding the outcome of the case if it went to trial or the time that Petitioners could actually be expected to serve if they plead guilty... .
Furthermore, Petitioners stood before the Circuit Court of Warren County on August 9, 1990, and responded to the Court's questions concerning their constitutional rights in regard to entry of a guilty plea. The Court found no reason to stop the proceedings and no objection was voiced by either petitioner.
Affidavits from Travis Vance and Richard Johnson, the two attorneys who represented Mowdy and Scrivner, were secured by the State. Vance stated in part in his affidavit:
Sometime around May 29, 1989, I first discussed with Johnny Mowdy and Martin Scrivner, in the Warren County jail, the circumstances surrounding the six charges of aggravated assault that were lodged against these two and a third accused, Rosemary Hogan (sic)... .
Subsequent to the first meeting with Mowdy and Scrivner, I had several more conversations with them and their family members relative to the charges. I advised them of the possibility of a conflict of interest in the event that the statement of either of them should conflict against the other. We also discussed the possibility of a lesser charge being in order and generally discussed the penalties applicable. I went to the Warren County jail with Mrs. Scrivner, Johnny's mother, and we talked openly about the charges and the possible consequences. We discussed all defenses available to the charges and possible witnesses to what had transpired. I never made any promise or guarantee as to what the ultimate outcome would be to the charges.
... My investigation of this case was thorough and included several [more] conversations and discussions with Mowdy and Scrivner, their family members, the District Attorney, law enforcement personnel and other witnesses. After fully informed plea bargaining discussions with the District Attorney, he was prepared to recommend 25 years on a plea of guilty. This offer was fully and completely explained to Mowdy and Scrivner. At no time did I indicate or promise that they would only serve three (3) years on such a sentence or *741 that they would remain at the Warren County jail indefinitely after sentence. In fact, they understood that I could make no such promise and that if they did plead guilty the Department of Corrections would make all decisions about service of their sentences. I made no threat to get them to enter their plea and I promised them nothing. Their plea was of their own free and informed volition.
Richard Johnson's affidavit was almost verbatim to Vance's. Johnson stated:
During the course of my association with Vance, I was present on several occasions with him at the Warren County jail while he discussed the facts of the incident and the circumstances with Mowdy and Scrivner.
Vance advised them that if either should have a statement that might conflict with the other, then he would have a conflict of interest and could not represent them both. I know of no such circumstance and Vance was employed to represent them in this matter. The facts of the incident were discussed at length on several occasions and Vance informed Mowdy and Scrivner of all their constitutional rights and all possible defenses to the charges and all possible lesser included charges ...
At no time do I recall hearing Vance make any promise or guarantee regarding the outcome of the case if it went to trial or the time that they could actually be expected to serve if they plead guilty. I remember that Mowdy and Scrivner would be called as a witness against Hogan and that Vance would see if they could remain in the Warren County jail as long as possible.
Summary judgment in favor of the State was rendered by the trial court. The court's opinion was that there was no "genuine issue of material fact" considering the entirety of the record. The court noted that both Mowdy and Scrivner previously stated to the court under oath that their guilty pleas were being rendered intelligently and voluntarily and that they were not induced by any threats or promises by their attorney or anyone else. Mowdy and Scrivner thereafter perfected an appeal to this court, raising the following issue for review:
DID THE CIRCUIT COURT ERR IN GRANTING SUMMARY JUDGMENT TO THE STATE ON MOWDY'S AND SCRIVNER'S MOTION FOR VACATION OF THEIR GUILTY PLEAS?
DISCUSSION OF LAW
Relying on Herring v. Estelle, 491 F.2d 125 (5th Cir.1974), Mowdy and Scrivner fault their attorney because they claim he erred in failing to advise them that they had committed only "accessory after the fact," rather than six separate aggravated assaults. Herring held that it is ineffective assistance of counsel to allow a person to plead guilty where the facts indicate that the offense was not committed. Six people were in fact shot with the .22 rifle. Mowdy and Scrivner state simply that they did not do it and only aided Rose in fleeing the scene of the crime after she shot the six people at Dodge City Lounge.
Mowdy and Scrivner assert that they blindly pleaded guilty to an offense they are technically not guilty of under Mississippi law. Mowdy and Scrivner fail to take stock of their situation. Their misconception is based upon the mistaken belief that they are not principals to this crime under their own statements to police. These statements were a part of the record and were available for the lower court's consideration. Mowdy conveniently forgets that in his statement he admitted that Rose told them both she intended to take her gun and shoot somebody when they all went back to Dodge City Lounge. Neither Mowdy nor Scrivner ever indicated they were not going to have anything to do with this, or attempted to talk Rose out of shooting someone. Having been fully advised of her intentions, they proceeded to drive to the Dodge City Lounge. It is evident from the record that Mowdy and Scrivner could not be classified as accessories-after-the-fact as they contend. They were principals under their own stated versions, if taken as true. In a jury trial, Mowdy's own statement would have been tantamount to a confession to being a principal to the aggravated assault. From Rose's position as set forth in her statement they were clearly principals, and, had a jury chosen to *742 believe Rose's version, there could be no question but that both Mowdy and Scrivner could have been convicted of the six counts of aggravated assault.
Mowdy and Scrivner did not have to fire the gun to be classified as principals to the offense of aggravated assault. This Court in Fleming v. State, 604 So. 2d 280, 288 (Miss. 1992), held that any person who aids, counsels, or encourages another person in the commission of a crime is guilty as a principal, as well. Id. at 288. See also, Davis v. State, 586 So. 2d 817, 821 (Miss. 1991); Sayles v. State, 552 So. 2d 1383, 1389 (Miss. 1989).
This Court in Gaskin v. State, 618 So. 2d 103, 107 (Miss. 1993), stated:
Knowledge of the elements is obviously a prerequisite to an intelligent assessment by the defendant of: 1) whether he has in fact done anything wrong under the law, and 2) the likelihood that he stands to be convicted if he exercises his right to a jury trial.
Certainly the Mowdy and Scrivner were entitled to advice enabling them to determine what they did wrong under the law. The affidavits of the two attorneys at the lower court level stated "that the defendants were advised of all of their constitutional rights and possible defenses to the charges... . We discussed all defenses available to the charges including the possibility of a lesser charge being in order and generally discussed the penalties applicable." The attorneys at trial level have denied all bases for relief alleged by Mowdy and Scrivner herein.
The facts in the record are not consistent with Mowdy's and Scrivner's allegations and summary judgment is proper. Mowdy and Scrivner argue that Sanders v. State, 440 So. 2d 278 (Miss. 1983) applies; however, that case is distinguishable from the case sub judice. In Sanders there were no counter affidavits from the attorneys for that court to consider. The motion in this case was not dismissed on its face, but rather, it was dismissed on the State's motion for summary judgment after the State had filed an answer to the defendant's application for post conviction relief, secured affidavits from the attorneys countering each issue raised by the defendants and the court had considered the entire record. In Carter v. Collins, 918 F.2d 1198, 1202 (5th Cir.1990), that court held that the "state court may evaluate an ineffective assistance of counsel claim by making credibility determinations based on affidavits submitted by the petitioner and the attorney."
Mowdy and Scrivner in asserting ineffective assistance of counsel, must satisfy the two-part test announced in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), which required a showing that (1) "counsel's performance was deficient" and that (2) "the deficient performance prejudiced the defense." Id. at 687, 104 S.Ct. at 2064. "This test applies to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L. Ed. 2d 203 (1985). In Hill, this Court stated:
In many guilty plea cases, the "prejudice" inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective assistance challenges to convictions obtained through trial. For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error "prejudiced" the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial. Similarly, where the alleged error of counsel is a failure to advise the defendant of a potential affirmative defense to the crime charged, the resolution of the "prejudice" inquiry will depend largely on whether the affirmative defense likely would have succeeded at trial.
Id. at 59-60, 106 S.Ct. at 370. See also, Leatherwood v. State, 539 So. 2d 1378, 1381 (Miss. 1989).
Mowdy and Scrivner's claim fails on its face due to their failure to delineate facts which, if proven, would show the likelihood of success at trial. They do not meet the criteria of the Strickland test.
*743 Mowdy and Scrivner further claim their lawyer erred because he made promises which were not kept to them regarding their incarceration and sentence which never came about. They state that they were to have received the benefit of certain promises if they agreed to testify for the State against Rose Hogan. Their lawyers refute these allegations by affidavits. Even if these allegations are taken as true, nothing in the record indicates whether Mowdy and Scrivner ever testified against Rose. Surely if they completed their part of this alleged deal and were double-crossed by the State, they would have said so in their pleadings, affidavits or briefs before this Court. We know that the alleged promise to remain in the county jail was not kept, because both Mowdy and Scrivner were promptly moved to Parchman where they still reside. The facts indicate the implausibility of the deal's occurring as Mowdy and Scrivner maintain.
Martin Scrivner's mother, Ruby Scrivner, supplied an affidavit which fails to support the appellants' allegations. Ms. Scrivner was not privy to any of the conversations regarding the guilty pleas.
Apparently, the trial judge placed great emphasis on the appellants having represented under oath before him during the entry of their guilty pleas and sentencing that they had not been induced to plead guilty by promises from anyone. This Court in Baker v. State, 358 So. 2d 401, 403 (Miss. 1978) stated:
We are mindful, as stated in Blackledge v. Allison [431 U.S. 63, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1977)], that "Solemn declarations in open court carry a strong presumption of verity." The state, the defendant, and the judicial system all have a significant interest in the plea. For the defendant, if guilty, he can begin serving his sentence without facing the delay and agony of a futile trial. Time is conserved for the state prosecutor and an already crowded court system is spared an unnecessary burden. Balanced against these administrative interests of course is the interest of protecting constitutional rights, particularly in the criminal law area.
The trial court is right to place great emphasis upon these statements under oath made by Mowdy and Scrivner in open court during the taking of their guilty pleas and sentencing. There should be a strong presumption of validity of anyone's statement under oath. However, we are now faced with one statement or the other not being the truth. The trial judge faced this same dilemma, obviously calling into question the appellants' credibility. This Court in Harris v. State, 578 So. 2d 617, 620 (Miss. 1991), held "that not all instances of conflicting affidavits will merit an evidentiary hearing. Where the petitioner's version is belied by previous sworn testimony, for example, as to render his affidavit a sham we will allow summary judgment to stand." If ever there was a sham, it is clearly within these allegations through which Mowdy and Scrivner attempt to get this Court to order an evidentiary hearing to set aside validly imposed sentences based upon what they both now claim were involuntary pleas.
In considering their pleas of guilt, the trial court required the State to place in the record, in the presence of both Mowdy and Scrivner, the recommendation of sentences of 25 years in the custody of the State Department of Corrections for six aggravated assault convictions. Although they both claim their lawyer told them they would get 3 years, they clearly knew the State's recommendation would be 25 years. The judge further stated to both defendants that he could give them up to a maximum of 120 years and asked if they understood. Both stated they did understand that 120 years was the maximum sentence they could receive. There can be no doubt that Mowdy and Scrivner each knew that the judge intended his sentence to be 25 years.
The judge further advised both Mowdy and Scrivner of one aspect of criminal law that most defendants and some lawyers tend to forget that he was not bound to accept the recommendation of the State in the plea bargain agreement. Judge Patrick then asked, "Knowing these things, are you still sure that you want to plead guilty?" Both Mowdy and Scrivner maintained they still wanted to plead guilty. Both Mowdy and *744 Scrivner repeatedly answered in response to questions by the trial judge, that they were pleading guilty freely, voluntarily, and without force, threat, or promise from any source, including their attorney. Both indicated they understood that they were pleading guilty to shooting six people. They told the court they were advised of all constitutional rights and were satisfied with their attorney's services. What is crystal clear from all this is that these two defendants expected to and did receive a 25 year sentence. They should not now be allowed a hearing in an attempt to avoid pleas of guilt for which they voluntarily bargained.
The affidavits of Mowdy and Scrivner were countered by the attorneys to the satisfaction of the trial judge. We should defer to the trial judge who was there, saw these two defendants, observed their demeanor, and heard what they said.
Regarding the question of where these sentences were to be served, Mowdy and Scrivner were clearly informed about the location by the trial judge when he stated
In the future, you'll be when you get out you'll be welcome to come to Warren County without any gunplay... . I would like to caution you, also, that once you get to Parchman that you are going to be tested... . If you get up there and don't follow the rules while you are there, you may end up spending this whole 25 years up there.
Can there be any doubt that these defendants knew that they were not going to be spending time in the Warren County Jail, but rather would serve their sentence at Parchman?
CONCLUSION
The Warren County Circuit Court correctly entered summary judgment. No genuine issue of material fact existed before the court based on the entirety of the record. The conflicting affidavits do not warrant an evidentiary hearing. Mowdy and Scrivner's prior pleas under oath before the same trial judge weighed heavily against their credibility when they once again, under oath, reappeared seeking to vacate their former sentences. We hold the issue raised to be totally without merit. Accordingly, the decision of the circuit court is affirmed.
DENIAL OF POST-CONVICTION RELIEF AFFIRMED.
HAWKINS, C.J., DAN M. LEE and PRATHER, P.JJ., and JAMES L. ROBERTS, Jr., J., concur.
BANKS, J., dissents with separate written opinion joined by SULLIVAN, PITTMAN and McRAE, JJ.
BANKS, Justice, dissenting:
Once again we are confronted with a petition for post-conviction relief which has been resolved summarily based on conflicting affidavits. The sworn allegations are such that there appear to be genuine disputes as to material fact, requiring an evidentiary hearing. For that reason I dissent.
I
As a basis for their contention that their guilty pleas were involuntary, Scrivner and Mowdy claimed that their lawyer had made promises to them regarding their incarceration which never came to fruition. They said that, despite the expressed sentencing recommendation from the State, their lawyer had assured them, "they would not serve more than 3 years, and they would remain at the county jail or a nearby Community Work Center, if they would also agree to testify for the State in the Rosemarie (sic) Hogan trial." Scrivner and Mowdy also made several other allegations of false promises by the lawyer. The petitioners attached a sworn letter from Martin Scrivner's mother dated February 15, 1991. The letter recounted the dealings Mrs. Scrivner had with Travis Vance, the attorney who represented defendants Martin Scrivner and Johnny Mowdy. In part, the letter said Travis Vance told Mrs. Scrivner during their initial meeting that "he was almost sure that Martin would get some `time', but that he, Travis Vance, could get the charge down to one count of accessory to aggravated assault. That would get the time down to five or ten years." The only other substantive discussion occurred after the two had entered their plea. The tenor of the affidavit was that the *745 attorneys would seek to have the two serve their time locally and were confident of that result but that it was not a certainty.
The State moved for summary judgment. In support of the motion, the State said:
The State would show that Petitioners were advised of all their constitutional rights and all possible defenses to the charges. At no time were any promises or guarantees made to Petitioners regarding the outcome of the case if it went to trial or the time that Petitioners could actually be expected to serve if they plead guilty... .
Furthermore, Petitioners stood before the Circuit Court of Warren County on August 9, 1990, and responded to the Court's questions concerning their constitutional rights in regard to entry of a guilty plea. The Court found no reason to stop the proceedings and no objection was voiced by either petitioner.
Id. The State buttressed its position with affidavits from Travis Vance and Richard Johnson, who worked with Vance as an associate during the period Vance represented Mowdy and Scrivner. Id. Vance stated in part in his affidavit:
Sometime around May 29, 1989, I first discussed with Johnny Mowdy and Martin Scrivner, in the Warren County jail, the circumstances surrounding the six charges of aggravated assault that were lodged against these two and a third accused, Rosemary Hogan... .
Subsequent to the first meeting with Mowdy and Scrivner, I had several more conversations with them and their family members relative to the charges. I advised them of the possibility of a conflict of interest in the event that the statement of either of them should conflict against the other. We also discussed the possibility of a lesser charge being in order and generally discussed the penalties applicable. I went to the Warren County jail with Mrs. Scrivner, Johnny's mother, and we talked openly about the charges and the possible consequences. We discussed all defenses available to the charges and possible witnesses to what had transpired. I never made any promise or guarantee as to what the ultimate outcome would be to the charges.
... My investigation of this case was thorough and included several [more] conversations and discussions with Mowdy and Scrivner, their family members, the District Attorney, law enforcement personnel and other witnesses. After fully informed plea bargaining discussions with the District Attorney, he was prepared to recommend 25 years on a plea of guilty. This offer was fully and completely explained to Mowdy and Scrivner. At no time did I indicate or promise that they would only serve three (3) years on such a sentence or that they would remain at the Warren County jail indefinitely after sentence. In fact, they understood that I could make no such promise and that if they did plead guilty the Department of Corrections would make all decisions about service of their sentences. I made no threat to get them to enter their plea and I promised them nothing. Their plea was of their own free and informed volition.
Richard Johnson's affidavit corroborated Vance's representations. Johnson stated in part:
... During the course of my association with Vance, I was present on several occasions with him at the Warren County jail while he discussed the facts of the incident and the circumstances with Mowdy and Scrivner.
Vance advised them that if either should have a statement that might conflict with the other, then he would have a conflict of interest and could not represent them both. I know of no such circumstance and Vance was employed to represent them in this matter. The facts of the incident were discussed at length on several occasions and Vance informed Mowdy and Scrivner of all their constitutional rights and all possible defenses to the charges and all possible lesser included charges ...
At no time do I recall hearing Vance make any promise or guarantee regarding the outcome of the case if it went to trial or the time that they could actually be expected to serve if they plead guilty. I remember that Mowdy and Scrivner would be *746 called as a witness against Hogan and that Vance would see if they could remain in the Warren County jail as long as possible.
The Warren County Circuit Court entered summary judgment in favor of the State. The court expressed the opinion that it saw no "genuine issue of material fact" after considering Mowdy's and Scrivner's motion to vacate their pleas and the State's response. The court gave special note to the fact that both Mowdy and Scrivner had said to that very same court under oath that their guilty pleas were being rendered intelligently and voluntarily and that they were not induced by any threats or promises by their attorney or anyone else. Mowdy and Scrivner thereafter perfected an appeal to this court.
II
Miss. Code Ann. § 99-39-19(2) (Supp. 1992), vests the circuit courts of this State with the authority to grant motions for summary judgment in post conviction relief proceedings "when it appears from the record that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." This standard is the same as that in Rule 56, Mississippi Rules of Civil Procedure.
[T]he motion for a summary judgment challenges the very existence or legal sufficiency of the claim or defense to which it is addressed; in effect, the moving party takes the position that he is entitled to prevail as a matter of law because his opponent has no valid claim for relief or defense to the action, as the case may be.
... [S]ummary judgment is not a substitute for trial of disputed fact issues. Accordingly, the court cannot try issues of fact on a Rule 56 motion; it may only determine whether there are issues to be tried. Given this function, the court examines the affidavits or other evidence introduced on a Rule 56 motion simply to determine whether a triable issue exists, rather than for the purpose of resolving that issue.
Miss. Rule Civ.Proc. 56, Comment. Here, in essence, Mowdy and Scrivner are claiming that genuine issues of material fact continued to exist after the State filed its pleadings. If they are correct in their assertions, it is axiomatic that the circuit court's issuance of summary judgment must be reversed and this case remanded for an evidentiary hearing to determine the legitimacy of Petitioners' claims that their guilty pleas were involuntarily entered.
III
Mowdy and Scrivner assert that their guilty pleas were involuntarily entered, because they were based in part upon promises from their lawyer that were never fulfilled. As noted above, they claim their lawyer promised them that if they pleaded guilty they would not have to serve any more than three years in jail, even though they knew the State would recommend twenty-five years as the sentence for both of them. They also claim their lawyer told them they would serve their entire jail time either at a county jail or a nearby work center. Allegedly, these leniencies were to be provided to them in exchange for testimony against their co-defendant Rose Marie Hogan.[1] Regardless of the verity of these allegations, we know that such leniencies did not in fact take place. Mowdy and Scrivner are both at Parchman serving general twenty-five year terms. Pursuant to law, they are eligible for parole in six years and three months[2] and *747 eligible for good time release in approximately twelve years and six months.[3]
When Mowdy and Scrivner appeared to enter their guilty pleas, they were interrogated by the circuit court regarding the circumstance of their pleas. They were asked specifically, "Has anybody promised you anything in order to get you to plead guilty?", "Has your attorney made any threats or promises to you in this case?", and "Has anyone told you the Court would be lighter on you if you pleaded guilty?" Both Mowdy and Scrivner responded, "No, sir", to each question. They claim they responded that way, because they were advised by their counsel not to mention any of the aforementioned arrangements to the court. They allege their lawyer told them that despite their representations to the Court, "everything would be worked out", because the agreement was between them and the prosecution.
When the circuit court granted summary judgment to the State on this matter, it placed emphasis on the fact that appellants had represented under oath to the sentencing court that they had not been induced to plead guilty by promises from anyone. This Court has held on several occasions that unfulfilled promises or assurances by defense counsels may render involuntary guilty pleas based on such assurances. See Myers v. State, 583 So. 2d 174, 177 (Miss. 1991); Schmitt v. State, 560 So. 2d 148, 152 (Miss. 1990); Sanders v. State, 440 So. 2d 278, 283-84 (Miss. 1983). Sanders is the seminal case. In that case, the petitioner urged that he had pleaded guilty to two counts of aggravated assault based upon assurances from his counsel that he would receive consecutive, five-year sentences. 440 So.2d at 284. Williams was actually sentenced to two consecutive, seventeen year terms. Id. at 281. The Sanders Court observed:
[C]ounsel's representation to the defendant that he will receive a specified minimal sentence may render a guilty plea involuntary. Mosher v. Lavallee, 491 F.2d 1346 (2d Cir.) cert. denied, 416 U.S. 906, 94 S. Ct. 1611, 40 L. Ed. 2d 111 (1974). Where defense counsel lies to the defendant regarding the sentence he will receive, the plea may be subject to collateral attack. Where defense counsel advises the defendant to lie and the tell the court that the guilty plea has not been induced by promises of leniency (when in fact it has), the plea may be attacked. The law is clear that where the defendant receives any such advice of counsel, and relies on it, the plea has not been knowingly and intelligently made and is thus subject to attack. Burgin v. State, 522 S.W.2d 159 (Mo. App. 1975).
440 So.2d at 283-84. Additionally, in Baker v. State, 358 So. 2d 401, 403 (Miss. 1978), the Court expressed the position that a recitation of voluntariness by a defendant during a plea colloquy will not render that plea unchallengeable by subsequent, collateral attack. Specifically, the Court said:
We agree with the spirit of Blackledge[4], e.g., that there should not be a per se rule prohibiting collateral attack on a plea in all circumstances, simply because the transcript on its face reflects recitation of voluntariness and awareness of the consequence.
358 So.2d at 403.
The majority attempts to distinguish Sanders by noting that here the trial court looked to the entire proceeding and treated the matter as a summary judgment. Majority opinion ante at p. 742. The fact is that that is precisely what was done in Sanders where the trial court specifically referred to the transcript of the plea proceedings. 440 So.2d at 283. Except for the lawyer affidavits, the procedural posture is indistinguishable from Sanders. We dealt with competing affidavits in Harris v. State, 578 So. 2d 617, 619 (Miss. 1991), and once again eschewed trial by affidavit.
We duty bound by the command that like cases be decide alike to apply the precepts established in Sanders to the question *748 whether Mowdy and Scrivner have indicated sufficient evidence to create a genuine issue of material fact. Their affidavits state a version of Vance's assurances. Mrs. Scrivner's affidavit, offered in support, provides little. She was not privy to the conversation leading to the agreement to plead guilty. Indeed she complains about her exclusion. As she relates the conversation that she had with the attorneys after the fact, she corroborates only that there was discussion of serving the time in the local community work center. Her affidavit, however, indicates that this was a goal likely to be obtained, not a promise.
The two attorneys swear by affidavit that they made no promise. The issue then is whether the sworn testimony of Mowdy and Scrivner is such that we can say that their affidavits are a sham. They denied that any promise was made. They also stood silent when the sentencing judge, prior to imposing sentence, referred to "once you get to Parchman", belying their contention that they expected to serve at the county jail or community work center.
Still, they contend that their lawyer told them to lie, that the community work center agreement was between him (their lawyer) and the prosecutor. Nowhere in the guilty plea colloquy were they advised that the question of where they served was for the department of corrections, not the prosecutor, and that no one could make them any assurances concerning parole or other matters. Under the circumstances I am more comfortable with findings of fact made on the basis of a full evidentiary hearing as opposed to the majority sanctioned trial by affidavit.[5]
CONCLUSION
For the foregoing reasons, I would reverse the judgment of the circuit court and remand this matter to the circuit court for an evidentiary hearing.
SULLIVAN, PITTMAN and McRAE, JJ., join this dissent.
NOTES
[1] There is no indication in the record regarding whether Mowdy and Scrivner ever testified against Rose Marie Hogan. The assumption made by the majority that the two did not keep their end of the alleged bargain, however, is unwarranted. Majority opinion ante at p. 743. It is possible that they did in fact testify against Rose. It is also possible that Rose entered a plea or that her case was otherwise disposed of so that the testimony was not needed even though these defendants stood ready. The point is, it is useless to speculate or to reach unwarranted assumptions when the facts can be established at a hearing.
[2] Six years and three months is one fourth of twenty-five years, and § 47-7-3(1) of the Code makes prisoners generally eligible for parole after serving one-fourth of their sentences. See Miss. Code Ann. 47-7-3(1) (Supp. 1992).
[3] Twelve years and six months is one half of twenty-five years, and § 47-5-138(1) of the Mississippi Code provides, "An inmate shall be eligible to receive an earned time allowance of one-half (1/2) of the period of confinement imposed by the court except those inmates excluded by law." Miss. Code Ann. § 47-5-138(1) (Supp. 1992).
[4] Blackledge v. Allison, 431 U.S. 63, 97 S. Ct. 1621, 52 L. Ed. 2d 136 (1976).
[5] This does not mean that the defendants should be allowed to "slip out" of their pleas as the majority fears. It only means that they should be given an opportunity to support their claim concerning what they were told, to explain, if they can, their prior statements, and to confront their attorneys who indicate contrary testimony. If their evidence is credited the court may find reason to set aside their pleas. If it is not credited their pleas will remain intact. Should there be evidence of perjury they may be charged and tried for that offense as well. Myers v. State, 583 So. 2d 174, 178 (Miss. 1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739118/ | 110 F.3d 595
46 Fed. R. Evid. Serv. 1102
UNITED STATES of America, Plaintiff-Appellee,v.Martin Ole GJERDE, Defendant-Appellant.
No. 96-2033.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 20, 1996.Decided April 7, 1997.Rehearing and Suggestion for Rehearing En Banc Denied May 12, 1997.
Ronald L. Meshbesher, argued, Minneapolis, MN, for Defendant-Appellant.
Lizabeth A. McKibben, Asst. U.S.Atty., argued, Minneapolis, MN, for Plaintiff-Appellee.
Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.
HANSEN, Circuit Judge.
1
Martin O. Gjerde appeals his conviction for conspiring to defraud an agency of the United States in violation of 18 U.S.C. § 371 (1994). He argues that the evidence was insufficient to support his conviction, that the district court1 erred in admitting hearsay evidence at his trial, and that the district court erred in determining his sentence. We affirm.I.
2
The charges in this case arose from a conspiracy to defraud the United States Department of Housing and Urban Development (HUD) in order to obtain HUD funds. The United States Congress annually appropriates tax dollars to HUD for the Community Development Block Grant Program, which includes the Small Cities Grant Program. HUD releases the Small Cities Grant Program funds to the states, which in turn make the funds available to communities to establish new economic development. The Minnesota Department of Trade and Economic Development (MDTED) is the Minnesota agency in charge of disbursing these HUD funds, in accordance with HUD rules and regulations.
3
Clarkfield Drying, Inc. (CDI) was a Minnesota corporation established by two brothers, Clark Field and Richard Field, to operate a whey drying plant located in Clarkfield, Minnesota. The Field brothers sought financing for the purchase of equipment and for other operational costs for the new plant. On behalf of CDI, the brothers approached the City of Clarkfield to apply for a $282,000 loan through the HUD Small Cities Grant Program. In their application for the HUD funds, the Field brothers stated that to be successful, CDI would require, among other things, an additional $292,000 of private financing. When the city applied to MDTED for the purpose of loaning the funds to CDI, MDTED responded that before it would release the HUD funds, it would need proof through a loan commitment letter that CDI had obtained the private financing. In addition, under the funding agreement between the city and CDI, CDI would have to prove that the money from the private financing had been spent on CDI equipment and that the City of Clarkfield would be in the first security position on the CDI equipment.
4
The Field brothers proceeded to seek private financing for CDI. After unsuccessfully pursuing other avenues of obtaining the money,2 the Field brothers sought a $292,000 loan from the Bonanza Valley State Bank (the bank) in Brooten, Minnesota. Richard Field approached Martin Gjerde, the president of the bank who had a long-standing relationship with Field, for a loan. Gjerde refused to loan the funds to CDI, however, because the City of Clarkfield was out of the bank's service area (90 miles away), CDI was a new company, and Gjerde had no experience with Clark Field, who was to run the operation.
5
Clark and Richard Field then proceeded to create a corporation named Minnewaska Capital Investment, Inc. (Minnewaska), in Glenwood, Minnesota, a city within the bank's service area. Minnewaska was a holding and leasing company for CDI, with Richard Field named as president and Clark Field named as treasurer. The Fields then approached Gjerde for a $292,000 bank loan to Minnewaska, to provide private financing for CDI. Gjerde approved the loan, without requiring the Fields to fill out a loan application or to submit any evidence of Minnewaska's financial status.
6
The transactions between Gjerde (on behalf of the bank) and the Fields (on behalf of CDI and Minnewaska) took place on August 21, 1989, and proceeded as follows. First, the bank loaned $292,000 to Minnewaska. The loan papers were signed by Gjerde, Clark Field, and Richard Field. Next, Minnewaska immediately transferred the $292,000 to CDI. Within a minute of this transfer of funds, CDI paid $173,000 (59% of the loan) back to Minnewaska, which then repaid that amount to the bank. The remaining $119,000 of the bank loan was left in CDI's checking account, but the money was never available for use by CDI. Gjerde put a hold on the Minnewaska and CDI checking accounts, preventing the Fields from accessing the proceeds of the bank loan. He noted this in a comment in the loan file, stating:This loan is being granted and security looked at only on the basis that the proceeds of this loan never leave[ ] accounts that have been set up at Bonanza Valley State Bank and security that is offered for them. Holds have been put on each of [the] checking accounts....
7
(Appellee's App. at 10.) In accordance with Gjerde's comment on the loan, the bank returned and refused to honor several checks written on the CDI bank account, despite its healthy account balance.3
8
On September 28, 1989, Kevin Stroup, an attorney representing the City of Clarkfield, telephoned Gjerde to inquire about the bank loan. Stroup told Gjerde that, to obtain the HUD Small Cities Grant Program funds, the Fields were required to secure $292,000 of private financing and to show that the proceeds of the financing had been used to purchase CDI equipment. Gjerde informed Stroup that the bank had lent $292,000 to Minnewaska, and Stroup requested documentation of the loan.
9
Gjerde sent the loan documents to Stroup, showing that the bank had lent $292,000 to Minnewaska, which in turn was transferring the funds to CDI. Gjerde also represented to Stroup on several occasions that approximately $170,000 of the bank loan had been spent on equipment as agreed upon under the funding agreement between the city and CDI. Gjerde never informed Stroup at any time that the $173,000 had in fact been repaid to the bank or that holds had been placed on the CDI and Minnewaska checking accounts to ensure that the remaining $119,000 did not leave the bank.
10
On November 8, 1989, Gjerde negotiated with Stroup to maintain the bank's first security position on the cash in the Minnewaska and CDI bank accounts until the funds had been fully spent on equipment. Under Gjerde's proposal, the city would have a first security interest once CDI had used the money to purchase equipment for the whey drying plant. The city agreed to this plan because the contract between the city and CDI required that the HUD funds be spent on equipment. On November 29, 1989, Gjerde confirmed to Stroup that CDI had spent all the proceeds of the bank loan on equipment and the CDI account had a zero balance.
11
Stroup sent the bank loan documents to a senior loan officer at MDTED, Nancy Johnson, and told her of Gjerde's assurance that the proceeds of the bank loan had been spent on equipment. The Fields also sent documents to Johnson, representing that the money had been spent on equipment. Based on this information, Johnson authorized the release of funds from the HUD Small Cities Grant Program to the city. On December 13, 1989, the city loaned $282,000 to CDI, $232,000 of which was transferred to the CDI checking account at the Bonanza Valley State Bank.
12
The Fields repaid the balance of the bank loan within three months of the execution of the loan. A $115,000 check was made payable from the CDI account to the bank on November 9, 1989, one day following the consent agreement between the bank and the city concerning the priority of their security interest. The final payment, including $3,571.40 in purported interest, was made on December 13, 1989, after the HUD funds had been deposited in the CDI account.
13
CDI eventually defaulted on the HUD loan. Stroup's law firm then hired an investigator to identify the whereabouts of the HUD funds. When the investigator spoke with Gjerde about the bank loan, Gjerde described it as a "paper transaction."
14
The City of Clarkfield also hired a CPA to trace the HUD funds loaned to CDI. The CPA concluded that the $292,000 purported loan from the bank "did not provide any capital on a long term basis to the business, as the money was advanced and returned well in advance of the time it should have been returned either to investors or to the bank." (Trial Tr. III at 39.) The CPA testified that the sequence of the transactions was not necessarily uncommon, but the loan was not valid to fulfill CDI's obligation to obtain the private financing in order to qualify for the HUD funds. She described the purported loan as "a bogus transaction with no actual capitalization to the corporation." (Id.)
15
On September 21, 1994, Gjerde was charged in a Second Superseding Indictment on one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371 and four counts of mail fraud in violation of 18 U.S.C. §§ 2 and 1341.4 The case proceeded to trial. Stroup, the attorney who had represented the City of Clarkfield, testified that he would not have approved the loan to CDI if he had seen the loan comment sheet prepared by Gjerde stating that the bank loan was being made on the condition that the money never leave the bank. Likewise, Johnson, the senior loan officer at MDTED assigned to the CDI loan, testified that she would not have approved the release of the HUD money to the city if she had seen the loan comment sheet.
16
A jury found Gjerde guilty of conspiring to defraud the United States in violation of 18 U.S.C. § 371, but not guilty on the mail fraud charges under 18 U.S.C. §§ 2 and 1341. The district court entered a judgment, sentencing Gjerde to thirty-three months of imprisonment, two years of supervised release, and restitution in the amount of $5,000. Gjerde appeals, arguing that the evidence was insufficient to support his conviction, the district court erred in admitting hearsay evidence, and the district court erred in sentencing him.
II.
A. Sufficiency of the Evidence
17
Gjerde first contends that the evidence is insufficient to prove he was guilty of participating in any conspiracy. We consider the evidence in the light most favorable to the guilty verdict, giving the government the benefit of all reasonable inferences that might be drawn from the evidence. United States v. Koskela, 86 F.3d 122, 126 (8th Cir.1996). We will overturn a jury verdict only when no reasonable jury could have found the defendant guilty beyond a reasonable doubt. United States v. Reeves, 83 F.3d 203, 205-06 (8th Cir.1996).
18
To find Gjerde guilty of conspiring to defraud the United States in violation of 18 U.S.C. § 371,5 the jury had to conclude that a conspiracy existed in this case and that Gjerde was a participant in the conspiracy. A conspiracy exists when at least two people knowingly participate in an agreement to defraud the United States or a United States agency and at least one of the parties performs an overt act in furtherance of the conspiracy. 18 U.S.C. § 371; United States v. Campbell, 848 F.2d 846, 851 (8th Cir.1988). Circumstantial evidence, including the alleged conspirators' conduct and any attending circumstances, may prove the existence of an agreement, particularly evidence indicating that the parties "acted in concert to achieve a common goal." Hamling v. United States, 418 U.S. 87, 124, 94 S.Ct. 2887, 2911, 41 L.Ed.2d 590 (1974); Campbell, 848 F.2d at 851. Once the conspiracy is established, the government need only offer slight evidence connecting a particular defendant to the conspiracy. United States v. Jenkins, 78 F.3d 1283, 1287 (8th Cir.1996).
19
Gjerde claims the evidence was insufficient to establish beyond a reasonable doubt that he knew of the conspiracy or of the conspiracy's general purpose and scope. We disagree. Gjerde knew that the Field brothers needed to obtain $292,000 in matching funds in order to qualify for the HUD money. He also knew the $292,000 bank "loan" to CDI through Minnewaska was merely a paper transaction. Yet, when the city attorney discussed the matching-fund requirement with Gjerde, Gjerde represented that the bank had provided the requisite private financing and did not explain that CDI had in fact received no capitalization from the loan.
20
Besides Gjerde's knowledge and misrepresentation about the bank loan itself, Gjerde knew the Fields were required to use the bank proceeds to purchase equipment for CDI. In furtherance of the conspiracy, Gjerde falsely represented that the entire proceeds of the bank loan had been spent on equipment, when in fact they had never left the bank. He also fostered the city's misunderstanding of the nature of the bank loan by negotiating with the city regarding the priority of the security interests, all the while knowing that the bank-loan transaction had provided no capitalization to CDI and there would be no expenditure of the bank-loan proceeds on equipment. It is but a small inferential step from the record evidence to conclude that Gjerde knew the city attorney would rely on the bank-loan documentation and Gjerde's representations, as well as the documentation from the Field brothers, to induce the senior loan officer at MDTED to release the HUD funds to the city. Given the overwhelming evidence in this record, we believe a reasonable jury could have concluded beyond a reasonable doubt that Gjerde knew of the conspiracy's purpose and scope, and that he willingly and knowingly played a key role as a participant in it.
21
Gjerde argues that, although he did not explicitly tell the city attorney he had frozen the CDI and Minnewaska checking accounts, he nonetheless put the city attorney on notice of this by sending the attorney the bank-loan documents. Included among the documents was an assignment signed by both Clark and Richard Field, which stated: "I understand that I may not withdraw any money from my account without your permission until my debts have been paid." (Trial Tr. III at 141.) Gjerde maintains that this assignment revealed the nature of the bank loan. We cannot agree that the Field brothers' agreement to obtain bank authorization for expenditures put the city attorney on notice that Gjerde had absolutely frozen the CDI and Minnewaska checking accounts. When reading the assignment, the city attorney could easily have assumed that the bank would approve expenditures for CDI equipment, in accordance with the HUD funding agreement. This assumption would be quite reasonable given that Gjerde had indicated his understanding of the expenditure requirement. Thus, the documentation of the assignment did not notify the city attorney of the holds on the accounts.
22
Gjerde next argues on two grounds that the evidence was insufficient to support the verdict because the conspiracy was not one to defraud the United States or any agency thereof. First, he contends that the money fraudulently borrowed by the Field brothers was money belonging to the city, not to HUD. Thus, Gjerde argues, the object of the conspiracy was to defraud the City of Clarkfield, not the federal government. Second, Gjerde claims that because no federal statute required the city to impose its matching loan requirement, the conspiracy could not have been to defraud the federal government.
23
Section 371 prohibits two distinct types of conspiracies: (1) conspiracies "to commit any offense against the United States," and (2) conspiracies "to defraud the United States or any agency thereof." 18 U.S.C. § 371; United States v. Wicker, 80 F.3d 263, 267 (8th Cir.1996). In the instant case, Gjerde was charged with the second type of conspiracy.6 To support a conviction of conspiracy on this charge, the government had to prove that the United States or one of its agencies was the target of the alleged conspiracy. Tanner v. United States, 483 U.S. 107, 130, 107 S.Ct. 2739, 2752-53, 97 L.Ed.2d 90 (1987). A conspiracy targeted at the United States or one of its agencies may be achieved by using third parties to effect the conspiracy, because section 371 does not limit the method by which the conspirators may plan to defraud the United States. Id. at 129, 107 S.Ct. at 2752.
24
Based on the evidence at trial, a reasonable jury could have concluded that the target of the conspiracy was HUD, as represented by MDTED, the state agency that administered the HUD Small City Grant Program funds. Although, as Gjerde emphasizes in his briefs, the HUD money was granted to the state, see 42 U.S.C. § 5303,7 that grant was subject to substantial federal regulation, see id. §§ 5304-5321; 24 C.F.R. 570.420--.432 (1997). Consequently, the funds did not lose their federal character, and MDTED was simply a state agency charged with administering the federal program. Cf. United States v. Long, 996 F.2d 731, 732 (5th Cir.1993) (explaining that question of whether funds lose their federal character for purposes of 18 U.S.C. § 641 (conversion of federal funds) is measured by the control and the supervision the federal government exercises); United States v. Foulks, 905 F.2d 928, 930 (6th Cir.1990) (holding, in the context of a prosecution under 18 U.S.C. § 641, that "[w]here the government retains power over grant funds, those funds retain their federal character even though deposited into accounts of non-federal agencies"); United States v. Johnson, 596 F.2d 842, 845-46 (9th Cir.1979) (holding that HUD funds disbursed to the San Francisco Redevelopment Agency were property of the federal government). Thus, MDTED was acting as an agent of HUD, and any conspiracy to defraud MDTED with regard to the HUD Small Cities Grant Program funds was in effect a conspiracy against HUD itself. Gjerde and the Fields used the city to perpetrate their fraud against HUD, but this does not alter the conclusion that the object of their conspiracy was to defraud HUD in order to obtain the federal funds. Tanner, 483 U.S. at 129, 107 S.Ct. at 2752. Further, it is of no consequence that the HUD money eventually passed through the city's hands before making its way to CDI; the important fact is that the federal government was the target of the conspiracy between the Fields and Gjerde. See Tanner, 483 U.S. at 130, 107 S.Ct. at 2752-53.
25
We also reject Gjerde's argument based on the fact that the government's case fails because the conspiracy did not violate a federal statute or regulation. That the state (not the federal government) instituted the matching-funds requirement is immaterial to our inquiry, because Gjerde was charged with conspiracy to defraud the United States, not conspiracy to commit an offense against the United States. See 18 U.S.C. § 371. While allegations of a conspiracy to commit an offense against the United States would require proof of an agreement to violate a federal statute or regulation, allegations under the other conspiracy clause, that is, a conspiracy to defraud the United States, do not engender that same requirement. Compare Tanner, 483 U.S. at 128-130, 107 S.Ct. at 2751-53 (discussing the intent requirement for a "conspiracy to defraud the United States") with Wicker, 80 F.3d at 267 (discussing the intent requirement for a "conspiracy to commit any offense against the United States").
26
For these reasons, we conclude that the evidence the government submitted to the jury was sufficient to prove beyond a reasonable doubt that Gjerde knowingly participated in a conspiracy to defraud an agency of the United States.
B. Admission of Coconspirator's Statement
27
Gjerde contends the district court committed reversible error in admitting testimony concerning a statement Richard Field made to an FBI agent in 1993. "We review the evidentiary rulings of a district court only for abuses of discretion, and will reverse only when an improper evidentiary ruling affects the substantial rights of the defendant or when we believe that the error has had more than a slight influence on the verdict." United States v. Ballew, 40 F.3d 936, 941 (8th Cir.1994) (citations omitted), cert. denied, 514 U.S. 1091, 115 S.Ct. 1813, 131 L.Ed.2d 737 (1995); see also Fed.R.Crim.P. 52(a) (harmless error standard).
28
The record reveals the following testimony at the trial:
29
PROSECUTOR: Now, during the course of your investigation of this case, did you also interview Richard Field?
30
FBI AGENT: Yes, I did.
31
PROSECUTOR: And when was that?
32
FBI AGENT: That interview took place at Mister Field's place of business on July 22nd, 1993.
33
PROSECUTOR: And did Mister Field tell you anything about why Minnewaska Capital Investment Corporation was set up?
34
GJERDE'S ATTORNEY: I object, Your Honor. His conversation with Mister Field is hearsay in this trial.
35
COURT: Overruled, under Bell or [Bourjaily]. Go ahead.
36
FBI AGENT: Yes--I believe your question was how Mister Field described Minnewaska Capital Investment?
37
PROSECUTOR: That is right. What did he tell you about why it was set up and how it was set up?
38
FBI AGENT: We had an extended conversation with regard to Minnewaska Capital Investments. And the final statement made by Mister Richard Field to me was that Minnewaska Capital Investment was nothing more than a straw company set up to act as a facilitator for the loan from Bonanza Valley State Bank to Clarkfield Drying, Incorporated.
39
PROSECUTOR: I have no further questions at this time.
40
(Trial Tr. III at 133-34.)
41
The district court admitted the FBI agent's testimony about Richard Field's description of Minnewaska under Federal Rule of Evidence 801(d)(2)(E), which states that a coconspirator's statement in the course of and in furtherance of the conspiracy is not hearsay evidence. See Bourjaily v. United States, 483 U.S. 171, 173, 107 S.Ct. 2775, 2777-78, 97 L.Ed.2d 144 (1987); United States v. Bell, 573 F.2d 1040, 1044 (8th Cir.1978) (setting forth the procedure for conditionally admitting conspirator statements). Gjerde argues that Richard Field's statement, made more than three and a half years after the Fields obtained the HUD funds, does not fall within the terms Rule 801(d)(2)(E), because it was not made in the course of or in furtherance of the conspiracy. Gjerde further argues that the admission of the testimony was prejudicial because it indicates Gjerde's participation in an overt act in furtherance of the conspiracy.
42
The government counters that the admission of Richard Field's statement was not error. The government contends, on the basis of United States v. Askew, 958 F.2d 806, 812 (8th Cir.1992), that Gjerde bears the burden of proving the conspiracy had actually ended at the time of Field's statement and that Gjerde failed to meet this burden. The government also argues that, if the statement was erroneously admitted, the admission was harmless error. See Fed.R.Crim.P. 52(a).
43
A declarant's out-of-court statement is admissible under Rule 801(d)(2)(E) if the government proves by the preponderance of the evidence that (1) a conspiracy existed, (2) the declarant was the defendant's coconspirator, and (3) the statement was made during the course of and in furtherance of the conspiracy. United States v. Darden, 70 F.3d 1507, 1529 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1449, 134 L.Ed.2d 569 (1996) and Hopkins v. United States, --- U.S. ----, 116 S.Ct. 2567, 135 L.Ed.2d 1084 (1996). In the instant case, we have already concluded that the government established beyond a reasonable doubt the existence of a conspiracy involving both Richard Field and Gjerde as coconspirators. Thus, the only remaining issue is whether Richard Field's statement was made in the course of and in furtherance of the conspiracy.
44
As a preliminary matter, we note that the government, not Gjerde, bears the burden of establishing that the statement was made "in the course of" the conspiracy, that is, that the conspiracy had not ended before Richard Field made his statement to the FBI agent in 1993. Darden, 70 F.3d at 1529; Bell, 573 F.2d at 1044. Our discussion in Askew, 958 F.2d at 812, on which the government relies for a contrary allocation of the burdens, relates to a sentencing issue, not the admissibility of evidence at trial under Rule 801(d)(2)(E).
45
Setting aside for a moment the question of whether Richard Field's statement was made "in the course of" the conspiracy, we first look at whether the record shows that Richard Field's statement was made "in furtherance of" the conspiracy. We interpret the "in furtherance of" requirement broadly, finding statements to be in furtherance of the conspiracy if the overall effect of the conversation is to facilitate the conspiracy. United States v. Edwards, 994 F.2d 417, 422 (8th Cir.1993), cert. denied, 510 U.S. 1048, 114 S.Ct. 701, 126 L.Ed.2d 667 (1994). "[C]onspirator statements made to a known police agent are admissible under Rule 801(d)(2)(E) only if intended to allow the conspiracy to continue, for example, by misleading law enforcers." United States v. Alonzo, 991 F.2d 1422, 1426 (8th Cir.1993).
46
After careful consideration, we conclude Richard Field did not make the statement regarding Minnewaska in furtherance of the conspiracy. The statement could not have been made in furtherance of the conspirators' core criminal objective of obtaining the HUD funds, because Richard Field made the statement three and a half years after the Fields actually obtained the money. As to whether Richard Field was trying to conceal the conspiracy, we must consider the statement in isolation, because there is no elaboration in the record on the overall effect of the conversation between Field and the FBI agent. Considering it so, we conclude Richard Field did not make the statement in an effort to conceal the conspiracy, for it was an admission about why the Fields created Minnewaska and it supports the government's case of conspiracy to defraud the United States. Thus, regardless of whether the statement was made in the course of the conspiracy, we conclude that it was not made in furtherance of the conspiracy and therefore was not admissible under Federal Rule of Evidence 801(d)(2)(E).
47
Nonetheless, the hearsay evidence was admissible under Federal Rule of Evidence 804(b)(3) as a statement against interest. Under Rule 804(b)(3), a statement against penal interest is not excluded as hearsay if "(1) the declarant is unavailable as a witness, (2) the statement ... so far tend[s] to subject the declarant to criminal liability that a reasonable person in the declarant's position would not have made the statement unless he or she believed it to be true, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement." United States v. Mendoza, 85 F.3d 1347, 1351 (8th Cir.1996). At the time of Gjerde's trial, Richard Field was not available as a witness. He had pled guilty to the conspiracy and had asserted his Fifth Amendment right against self-incrimination pending his appeal. See United States v. Duchi, 944 F.2d 391, 394 (8th Cir.1991). Richard Field's statement that Minnewaska had been created as a straw company to facilitate the bank loan was against his penal interest at the time he made it, because there was an investigation under way and the statement gave credence to the government's suspicion that the Field brothers had manipulated the situation to make it appear as if CDI had secured private financing from the bank, when in fact the bank "loan" provided absolutely no capital to CDI. Finally, the statement was corroborated by Gjerde's own statement that the loan to Minnewaska passing through to CDI was merely a paper transaction. Thus, the evidence was admissible under Rule 804(b)(3).
48
Even if the evidence had been inadmissible, the error would have been harmless in this case, because the other overwhelming evidence was more than sufficient to prove Gjerde's participation in the conspiracy beyond a reasonable doubt. The record reveals many acts in furtherance of the conspiracy, including Gjerde's own misrepresentations to the city attorney. Furthermore, given Gjerde's own description of the loan as a paper transaction, Richard Field's statement did not really add anything to the nonhearsay evidence in the record. Thus, we conclude that any evidentiary error regarding the statement would not have affected Gjerde's substantial rights. Fed.R.Crim.P. 52(a); Ballew, 40 F.3d at 941.
49
Gjerde also maintains that the prosecutor's reference in his closing argument to Richard Field's statement constituted prosecutorial misconduct. There was no prosecutorial misconduct here, because the evidence was admissible and the prosecutor was therefore free to refer to it in closing arguments. See United States v. Goodlow, 105 F.3d 1203, 1207 (8th Cir.1997) (standard for examining claims of improper prosecutorial comments).
C. Sentencing Issues
50
Finally, Gjerde raises several challenges to the district court's calculation of his sentence under the United States Sentencing Guidelines. First, Gjerde argues the district court improperly enhanced his sentence for obstruction of justice on the basis that Gjerde perjured himself at trial. A two-level increase is appropriate "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing or the instant offense." United States Sentencing Commission, Guidelines Manual, § 3C.1.1 (Nov.1995). It is well established that perjury at trial amounts to an obstruction of justice. United States v. Thomas, 93 F.3d 479, 489 (8th Cir.1996). "A witness commits perjury if he gives false testimony concerning a material matter with the wilful intent to provide false testimony, rather than as a result of confusion, mistake, or faulty memory." Id. (internal quotations omitted). "The district court must review the evidence and make [an] independent finding, by a preponderance of the evidence, of perjury in order to impose a sentence enhancement for obstruction of justice." Id. In conducting this review, the court must evaluate the defendant's testimony in the light most favorable to him. United States v. Scott, 91 F.3d 1058, 1063 (8th Cir.1996). Because a decision to apply an enhancement for obstruction of justice rests on the district court's factual findings, we review that decision for clear error. Thomas, 93 F.3d at 488-89.
51
The district court's decision in this case was not clearly erroneous. Examining the testimony in the light most favorable to Gjerde, the district court found that Gjerde testified falsely in an attempt to affect the outcome of his case. For example, contrary to a memorandum written by Gjerde indicating that the bank's loan was merely a paper transaction and that he never intended to disburse the funds to the Fields, Gjerde testified at trial that the bank's loan to the Fields was legitimate. Also in direct conflict with the evidence, Gjerde also testified that he did not withhold information from the city's attorney and that the bank intended to disburse the loan to the Fields. Considering these statements, and others, we agree with the district court that enhancement under § 3C1.1 is appropriate, and we find no clear error. Thomas, 93 F.3d at 489; see also United States v. Dunnigan, 507 U.S. 87, 95-96, 113 S.Ct. 1111, 1116-17, 122 L.Ed.2d 445 (1993) (finding an enhancement for obstruction of justice amply supported where the defendant failed to give truthful answers on material matters in an attempt to affect the outcome of the case).
52
Gjerde also challenges the enhancements of his sentence based upon his role in the offense. The district court applied a two-level enhancement for more than minimal planning, USSG § 2F1.1(b)(2), and a two-level enhancement for abuse of a position of trust, USSG § 3B1.3. Gjerde argues not only that the enhancements were improper, but also that he deserved a reduction because of his minor role in the offense. See USSG § 3B1.2(b). We review the district court's factual determination of a participant's role in the offense for clear error. United States v. Maxwell, 25 F.3d 1389, 1399 (8th Cir.), cert. denied, 513 U.S. 1031, 115 S.Ct. 610, 130 L.Ed.2d 519 (1994).
53
The district court's decision to apply a two-level enhancement under section 2F1.1(b)(2) of the Guidelines for more than minimal planning was not clearly erroneous. " 'More than minimal planning' is deemed present in any case involving repeated acts over a period of time, unless it is clear that each instance was purely opportune." Id. § 1B1.1(f). Gjerde approved of the bank "loan" to Minnewaska; he put a hold on the Minnewaska and CDI accounts; and he represented that CDI had obtained financing from the bank for the purpose of purchasing equipment and, later, that equipment had been purchased. These acts and others were thoughtful and complex, and extended over a period of several months. The district court did not clearly err in applying the enhancement for more than minimal planning.
54
Likewise, the denial of Gjerde's motion for a reduction for being a minor participant was not clear error. Gjerde bears the burden of proving that he is entitled to a reduction for being a minor participant. United States v. Thompson, 60 F.3d 514, 517 (8th Cir.1995). He cannot meet that burden simply by proving that he is less culpable than his coconspirators when the evidence indicates that he was "deeply involved" in the criminal acts. Id. at 517-18. This record demonstrates that Gjerde was a key player in the conspiracy, for without him, the Fields could not have represented that they had obtained the matching private financing required to obtain the HUD funds. Although he may have been less culpable in some sense than the Field brothers, on this record, Gjerde simply cannot show he was merely a minor participant.
55
Finally, the district court did not clearly err in finding that Gjerde abused a position of trust in committing this crime. Gjerde was entrusted by the bank's board of directors to conduct the bank affairs in a forthright manner and to assure compliance with bank policies and federal regulations. His position allowed him to structure the loan to CDI through Minnewaska with little or no scrutiny. A situation like this is exactly what the Sentencing Commission had in mind for the enhancement for abuse of a position of trust. See USSG § 3B1.3, comment. (n. 1) (giving as an example "a bank executive's fraudulent loan scheme"). The enhancement for Gjerde's abuse of his position of trust was proper.
III.
56
For the reasons stated above, we affirm the judgment of the district court.
1
The Honorable David S. Doty, United States District Judge for the District of Minnesota
2
At one point, Clark and Richard Field obtained a false letter of credit from Rudell Oppegard, the president of Twin Valley State Bank in Twin Valley, Minnesota, conditionally committing the bank to a $292,000 loan. As a result of their conspiracy to obtain HUD money through fraudulent means, Oppegard and the Field brothers were convicted of conspiring to defraud the government in violation of 18 U.S.C. § 371. See United States v. Clark Beach Field, 110 F.3d 592, (8th Cir.1997); United States v. Richard William Field, 110 F.3d 587, (8th Cir.1997)
3
Over a year later, an Assistant County Attorney filed an insufficient-funds check charge against Clark Field based on a check that had bounced in September 1989. Gjerde provided a letter on Field's behalf, explaining that the account was used as security on the bank loan and that the check had been returned for insufficient funds because a hold had been placed on the account. As a result of Gjerde's representations, the charge against Clark Field was dropped
4
The Field brothers were also charged in the same superseding indictment with violations of the mail fraud and conspiracy statutes arising out of this conspiracy. In addition, they were charged with similar counts arising out of a separate conspiracy to obtain HUD funds through fraudulent activities with Oppegard, see supra n. 2. The Fields were found guilty on the latter charges and then entered into a plea agreement with the United States with regard to the charges arising out of their conspiracy with Gjerde. Under the agreement, the government dropped the mail fraud charges, but the Field brothers pled guilty to the conspiracy charge
5
Title 18 U.S.C. § 371 states:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both....
6
The Second Superseding Indictment charged Gjerde with
knowingly and willfully conspir[ing with Clark and Richard Field] ... to defraud the United States of America of funds belonging to the United States of America's Department of Housing and Urban Development, with the object of the conspiracy being to obtain those funds in the form of an approximately $282,000 loan from the HUD Small Cities Grant Program....
(Clerk's R. at 129.)
7
This section states:
The Secretary is authorized to make grants to States, units of general local government and Indian tribes to carry out activities in accordance with the provisions of this chapter.... | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1597362/ | 384 N.W.2d 576 (1986)
In the Matter of the WELFARE OF C.R.B. also known as C.R.B., Child.
No. C5-85-1616.
Court of Appeals of Minnesota.
April 8, 1986.
Review Denied May 29, 1986.
*577 Paul C. Engh, Minneapolis, for appellant Father.
Leslie M. Metzen, South St. Paul, for C.R.B.
Patrice K. Sutherland, Inver Grove Heights, Guardian Ad Litem, for Child.
Robert H. Peahl, Faribault, for respondent Mother.
Robert Carolan, Dakota Co. Atty., Mark J. Ponsolle, Asst. Dakota Co. Atty., Hastings, for Dakota County.
Heard, considered and decided by POPOVICH, C.J., and LANSING and HUSPENI, JJ.
OPINION
HUSPENI, Judge.
Carlton Brastad appeals from a trial court order vacating an order terminating Kim Wood's parental rights to their daughter, C.R.B. Brastad contends that Wood's motion to vacate the termination order was not timely under Minn.R.Civ.P. 60.02, that the trial court's finding of fraud was clearly erroneous and that reinstating Wood's parental rights is not in the best interests of C.R.B. We affirm.
FACTS
Brastad and Wood were divorced in December 1980. The dissolution decree contained no reference to a child of the marriage. C.R.B. lived with Wood after the dissolution.
Several months later Wood began to have discipline problems with C.R.B. and eventually Brastad took C.R.B. to live with him with Wood's consent. On July 22, 1981, Brastad filed a petition to terminate Wood's parental rights to C.R.B. Brastad testified that he wanted to create a stable environment for C.R.B. and believed that without a formal adjudication Wood would continue to come and go, taking C.R.B. with her. Also, Brastad's name was not listed on C.R.B.'s birth certificate because he and Wood were not married at the time the child was born. (They married in 1977, *578 divorced early in 1978, and remarried shortly after C.R.B.'s birth on June 22, 1978). Brastad thought that in order to have C.R.B.'s name changed to his own he would need to formally adopt her and therefore Wood would have to terminate her parental rights.
Wood testified that she believed in 1981 that it was better for Brastad to have C.R.B. because Wood was not in a good emotional state. She also testified, however, that Brastad told her he would take C.R.B. and move out of state if she did not terminate her parental rights.
Against this background, Wood gave her consent to entry of an order terminating her parental rights. She did not have legal representation in this matter. The consent papers were drawn up by Brastad's attorney and Wood went to his office to sign them. The attorney testified that Wood was informed that the proceeding would be final.
On August 21, 1981, the trial court held a hearing on Brastad's termination petition. Wood did not appear at this hearing. At the hearing the trial court specifically asked Brastad if Wood had consented to the termination of her parental rights. Brastad answered yes. The trial court also asked if Wood had contacted Brastad about placing C.R.B. with him and whether he coerced Wood or tried to talk her into terminating her parental rights. Brastad testified that he had not coerced or influenced Wood.
The trial court expressed its concern over granting a termination of parental rights under these circumstances. Brastad and his attorney once again, however, emphasized Wood's consent to the termination. The trial court eventually agreed to grant the termination but expressed its reservations about the matter as follows:
THE COURT: * * * [A] termination doesn't make any sense.
COUNSEL: I think the statute, Your Honor calls for one of the provisions for termination is simply the written consent of the other parent.
THE COURT: Well but that doesn't mean that the termination has to be granted. I'll grant this termination but I don't like the idea, because you're taking away some of the child's rights, for no good reason. * * * So we don't like to terminate unless there's going to be an adoption.
After Wood's parental rights were terminated, she continued to have contact with C.R.B. During periods in 1982 and 1983, Wood lived with Brastad and C.R.B. At other times she continued to visit with C.R.B. at least once or twice a month.
In May 1983 C.R.B. was placed in foster care pursuant to a dependency and neglect proceeding that had been brought against Brastad. When county authorities discovered that Wood's parental rights to C.R.B. had been terminated, they informed Wood that she had no right to visit her daughter or to be apprised of what was happening to her.
Finally, on December 6, 1984, after pursuing such courses of action as contacting legal authorities and the Governor and Senators from Minnesota, Wood filed a motion to vacate the order terminating her parental rights. An evidentiary hearing on the motion was held on May 17, 1985, before the same trial judge that had ordered the original termination of Wood's parental rights. Wood testified that in the 1981 action she thought she was waiving her right to have C.R.B. live solely with her and to make major decisions about C.R.B.'s life, but she did not know she was waiving all rights to be informed of C.R.B.'s welfare. She believed that the termination procedure was the only way that she could place C.R.B. in Brastad's care and yet retain visitation rights. Also, at the May 1985 hearing Brastad himself testified that he told Wood she could see C.R.B. after the termination of her parental rights.
On July 31, 1985, the trial court vacated the order terminating Wood's parental rights. The trial court found that the original order terminating Wood's parental rights was the result of fraud, misrepresentation and was in fact a fraud upon the *579 court. Brastad appealed. On appeal, C.R. B.'s guardian ad litem joins Wood in seeking affirmance of the trial court.
ISSUES
1. Is Wood's motion to vacate the termination order barred by the time limitation in Minn.R.Civ.P. 60.02?
2. Was the trial court's finding of fraud on the court clearly erroneous?
ANALYSIS
I. TIMELINESS OF MOTION TO VACATE
Brastad argues that Wood's delay in bringing the motion to vacate should have precluded the court from considering it. He claims that the motion is one brought pursuant to Minn.R.Civ.P. 60.02(3) and as such must be brought within one year.
Minnesota Rule of Civil Procedure 60.02 provides in part:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment * * *, order, or proceeding and may order a new trial or grant such other relief as may be just for the following reasons: * * * (3) fraud * * *, misrepresentation, or other misconduct of an adverse party[.] * * * The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken.
If rule 60.02(3) were the sole basis for vacating the termination order, the motion would have been untimely under this rule.
The trial court, however, specifically found that there was fraud on the court. Rule 60.02 specially provides that:
This rule does not limit the power of a court to * * * set aside a judgment for fraud upon the court.
Further, in Halloran v. Blue & White Liberty Cab Co., 253 Minn. 436, 442, 92 N.W.2d 794, 798 (1958), the Minnesota Supreme Court noted that "[a] judgment may be set aside at any time for after-discovered fraud upon the court." Because the trial court found there had been a fraud upon the court, the time limits of Minn.R. Civ.P. 60.02 were inapplicable to Wood's motion to vacate and the motion was timely.
II. FRAUD ON THE COURT
Fraud on the court exists:
Where a court is misled as to material circumstances, or its process is abused, resulting in the rendition of a judgment which would not have been given if the whole conduct of the case had been fair * * *.
Halloran, 253 Minn. at 442, 92 N.W.2d at 798. The trial court made the following pertinent findings:
2. * * * [T]he termination order was questioned at the time of the termination hearing by the court-appointed guardian for said child and by the Court and * * * the termination of parental rights to said child by the mother were reluctantly granted by the Court at the hearing in 1981.
3. [Wood] was not represented by counsel at said hearing, nor did she make any appearances, nor did she testify at the termination hearing. Further, [Wood] was misinformed and misled by [Brastad] * * * as to the effect the termination would have on the mother's rights and was in fact promised by the father that she could have continued contact with the child if she agreed to the termination.
4. After the termination of [Wood's] parental rights, the following things took place: (a) [Wood] was given visitation with the subject child (b) for some period of time after the termination, the child lived and was in the custody of [Wood] (c) for a period of time after the termination, [Wood] and [Brastad] lived together with said child (d) there was little, if any change in the relationship between the parents and the child.
5. [Wood] had been informed by [Brastad] and other family members that [Brastad] would leave the state with [C.R.B.] and the mother would never see *580 [C.R.B.] again unless she signed and agreed to the termination. There have been no changes such as adoption, guardianship or any other matters adversely affecting third parties, the child, or changes that in any way affect the legal status of the parents and the child other than the original termination order herein. The Court therefore concludes there would be no disadvantage to the child and in fact it could prove to be advantageous, to vacate the original termination order. The Court further concludes that the termination order terminating the parental rights of [Wood] to the subject child was the result of fraud, misrepresentation and misconduct by [Brastad] and members of his family. Therefore, the petition for termination was not the free act and deed of [Wood] and was in fact a fraud upon the court and should be vacated.
The trial court's finding regarding Brastad's fraud and misrepresentations to the court will only be disturbed if it is clearly erroneous. Thomas v. Thomas, 356 N.W.2d 76, 80 (Minn.Ct.App.1984).
Brastad testified at the hearing on the termination petition that Wood had consented to terminate her parental rights and that he did not coerce her or try to talk her into the termination. The facts presented at the evidentiary hearing to vacate the termination order showed that Wood did not fully appreciate the effect of the termination proceedings, did not fully understand her other alternatives and was not represented by counsel. Wood's uninformed consent and the coercive nature of the circumstances surrounding her consent are certainly material circumstances that could have misled the trial court. Further, the relationship of the parties with one another and with C.R.B. in the months and years following termination of Wood's parental rights graphically indicates that no actual rupture of the mother/child relationship occurred. It is obvious that to the extent the parties gave any recognition to the court's 1981 order it was recognized as a custody determination only. In light of these facts we find the trial court did not clearly err in finding Brastad's misrepresentations worked a fraud upon the court.
III. BEST INTERESTS OF THE CHILD
The trial court determined that vacation of the termination order "would be no disadvantage to the child and in fact * * * could prove to be advantageous." Brastad disagrees and argues that such vacation would not be in C.R.B.'s best interest.
We note initially that, ideally, any court determination that affects a minor child should consider and seek to serve the best interest of that child. However, we also recognize that in termination of parental rights matters, the best interest of a child cannot be solely determinative. In re M.G. & J.G., 375 N.W.2d 588 (Minn.1985). We believe that policy must apply here as well where vacation of a termination order is under consideration.
Further, although we find no error in the trial court's characterization of the effects of its order upon C.R.B., we note that her best interest will be the subject of a future custody hearing. Vacation of the termination order was not tantamount to restoring C.R.B. to Wood's custody. In its July 31, 1985 order, the trial court scheduled a future hearing to review "the status of this child as a dependent child." All parties will have an opportunity at that time to express to the court their respective positions on C.R.B.'s custody.
Finally, it is our observation that vacation of the termination order did, in fact, serve the best interests of C.R.B. Certainly, termination of parental rights is a drastic measure that should only be undertaken with the utmost caution and, in all but the most rare instances, must be a final adjudication of the parties' rights. We believe this to be one of those rare instances. The circumstances here are unique. Following the 1981 termination order, this mother and child continued their relationship, a relationship which was ruptured only when C.R.B. was officially removed *581 from her father's custody and official recognition was given to the court order terminating Wood's parental rights. During most of C.R.B.'s short life she has resided in a family situation not unlike that of millions of other minor children whose natural parents occupy separate households but create and adhere to custodial and visitation arrangements. At no time was C.R.B. the subject of adoption proceedings by third parties. By vacating the termination order, the trial court has ensured for C.R.B. an opportunity to resume and continue the relationship with her natural mother that appellant himself assisted in fostering after the 1981 order.
DECISION
Wood's motion to vacate the order terminating her parental rights was not barred by the time limits under Minn.R.Civ.P. 60.02. The trial court did not err in finding that the termination of Wood's parental rights was the result of fraud upon the court. Vacating the termination order is in C.R.B.'s best interests.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601728/ | 869 So.2d 588 (2004)
Lazslo LENART, Appellant,
v.
OCWEN FINANCIAL CORP., Appellee.
No. 3D03-188.
District Court of Appeal of Florida, Third District.
February 25, 2004.
*589 Marlow, Connell, Valerius, Abrams, Adler, Newman & Lewis and William G. Edwards and Maury L. Udell, Coral Gables, for Appellant.
Smith, Hiatt & Diaz and Roy A. Diaz (Ft.Lauderdale), for Appellee.
Before LEVY, GREEN, and FLETCHER, JJ.
PER CURIAM.
Lazslo Lenart, the homeowner, appeals from an Order entering Final Summary Judgment in favor of third-party defendant, OCWEN Financial Corporation (OCWEN).
The matter before the Court arises out of an action brought by Lenart against Florida Residential Property and Casualty Joint Underwriting ("the insurer") after the insurer denied Lenart's insurance claim for fire damage to Lenart's home, the insured property, in December of 1998. At the time of the fire, OCWEN owned the mortgage on the property.[1] After the fire, Lenart ceased payment of the mortgage and a foreclosure action was filed on the mortgage.
On February 7, 2000, Summary Final Judgment of Foreclosure was entered against the insured property in the amount of $134,503.68. At the foreclosure sale, Aurora Loan Services, Inc., the mortgagee, successfully bid on the property and took title on August 4, 2000. On the date of sale, the foreclosure judgment totaled $141,062.98 as a result of accrued interest due between February 7, 2000 and August 4, 2000. It is undisputed that the property value on the date of sale was $130,000.00.
Some time after the foreclosure sale, Lenart's claim with the insurer settled for $90,000. The insurer included OCWEN on the issued check because OCWEN was a loss payee under the policy. OCWEN refused to endorse the settlement draft and Lenart filed a Third Party Complaint against OCWEN, seeking the proceeds from the insurance claim.
Lenart sought Summary Judgment against OCWEN on the ground that OCWEN did not have an interest in the proceeds in light of the foreclosure action. In sum, Lenart argued that OCWEN's receipt of the sale proceeds following the foreclosure extinguished any insurable interest created by the debt between Lenart and OCWEN. OCWEN filed its own Motion for Summary Judgment against Lenart alleging that OCWEN was entitled to the entire settlement proceeds because upon foreclosure, OCWEN became the owner of the property. OCWEN relied on Secured Realty Investment Fund, Ltd., III v. Highlands Insurance Co., 678 So.2d 852 (Fla. 3d DCA 1996) and Nationwide Mutual Fire Insurance Co. v. Wilborn, 291 Ala. 193, 279 So.2d 460 (1973) to support its argument that where a mortgagee pursues foreclosure of property after a loss, if the debt is not satisfied by the foreclosure sale, the mortgagee is entitled to recover *590 under the insurance policy as "owner" of the property.
The trial court granted Summary Final Judgment in favor of OCWEN, awarding OCWEN the full $90,000 settlement, finding that OCWEN's debt was not extinguished as a result of the foreclosure sale. We reverse.
The trial court cited Secured Realty Investment Fund, Ltd., III v. Highlands Insurance Co., 678 So.2d 852 (Fla. 3d DCA 1996) to support its finding that OCWEN was entitled to receive the full amount of the insurance proceeds. The trial court's focus on Secured Realty, however, is misplaced. In Secured Realty, this Court specifically explained that the "foreclosure after loss" cases could not be applied to the "foreclosure before loss" context that the Court reviewed in Secured Realty. Secured Realty, 678 So.2d at 855.
In Secured Realty, the mortgagee, Secured Realty, foreclosed on real property. When the sheriff went to the property to execute a Writ of Possession, it was discovered that the property was extensively damaged. The parties, Secured Realty and the insurer, Highlands Insurance Company, stipulated that the damage to the property occurred after the foreclosure. Secured Realty, 678 So.2d at 853. Secured Realty submitted a loss claim to the insurer for the foreclosed properties. The insurer denied the claim. Suit was filed against the insurer and the insurer responded that Secured Realty did not have an insurable interest at the time of the loss because "[w]hen Secured Realty took title to both properties as a result of foreclosure, their fair market value exceeded the redemption amount." The insurer reasoned that the debt was satisfied, and thus discharged, at the time of foreclosure. Id. at 853-54. The insurer also argued that if Secured Realty had an insurable interest at the time of the loss, its recovery should be limited to the difference between the redemption amount and the amount Secured Realty realized from the post-loss sale of the properties. The trial court agreed with the insurer, including the alternative disposition if the matter was reversed.
On appeal, this Court recognized that the loss payee clause of the insurance contract was a standard, or New York clause, which generally protects the mortgagee's interest to property, despite the mortgagor or insured's, actions. Secured Realty, 678 So.2d at 854-55. The Court then considered the effect foreclosure had on Secured Realty's right to collect the insurance proceeds for a loss that occurred after foreclosure. The Court rejected the insurer's argument that Secured Realty did not have an insurable interest, and recognized the differing treatment in a loss after foreclosure context, as opposed to the foreclosure after loss situation. Id.
In the "foreclosure prior to loss" situation... the foreclosure ... occurs in the context of the insured property existing in its undamaged condition and the satisfaction of debt takes into account the value of such property in its undamaged condition prior to loss and the need for the insurance to follow the property. In the "foreclosure after loss" situation ... the foreclosure occurs in the context of the insured property having been damaged and the satisfaction of the debt takes into account the damaged condition of the property at the time of such foreclosure.
Id. at 855 (citing Nationwide Mut. Fire Ins. Co. v. Wilborn, 291 Ala. 193, 279 So.2d 460, 464 (1973)(emphasis added)).
In the ["foreclosure prior to loss"] situation, the value of the undamaged property at the time of foreclosure is an incident to the satisfaction of the debt; while in the ["foreclosure after loss"], to allow recovery of insurance proceeds by *591 the mortgagee after full satisfaction of the debt would amount to mortgagee's unjust enrichment.
Wilborn, 279 So.2d at 464.
The Wilborn Court explained that when the foreclosure precedes the loss, the mortgagee occupies the status of "owner" at the time of the loss, and has an insurable interest in protecting his property from loss. Wilborn, 279 So.2d at 463. On the other hand, where the loss precedes the foreclosure the mortgagee is the creditor of the owner at the time of loss, and has an election as to how to satisfy the debt. The mortgagee may either turn to the insurance company for payment as mortgagee under the New York Standard Mortgage Clause and recover, up to the limits of the policy, the mortgage debt; or the mortgagee may foreclose on the property. If the mortgagee elects to pursue the insurance company for payment of the debt, then the debt is fully satisfied and the mortgagee does not have any additional recourse against the mortgagor. If the mortgagee elects to foreclose on the property and the foreclosure sale does not bring the full amount of the mortgage debt, then the mortgagee may recover the deficiency under the insurance policy as owner. Wilborn, 279 So.2d at 463-64 (citing Aetna Ins. Co. v. Baldwin Co. Building & Loan Ass'n, 163 So. 604 (Ala.1935)). The Court reiterated that "in no event is the plaintiff-mortgagee due to collect more than the debt secured." Id.
In the instant case, like Wilborn, we are faced with a pre-foreclosure loss. The property sustained damages and Lenart, the owner/insured, filed a claim with his insurer. In the meantime, the property was foreclosed by the mortgagee, OCWEN, who obtained a foreclosure judgement on the property in the amount of $134,503.68. After the foreclosure sale, the parties stipulated that the market value of the property at the time of the sale was $130,000.00. On the date of sale, the foreclosure judgment totaled $141,062.98 $134,503.68 judgment, plus accrued interest. As a result, a deficiency was due and owing to OCWEN in the amount of $11,062.98. The insurer subsequently settled the insurance claim for $90,000.00, and issued a check to the insured, Lenart, and to the mortgage holder, OCWEN. See Pick v. Gilbert, 605 So.2d 182 (Fla. 3rd DCA 1992)(quoting Travelers Ins. Co. v. Providence Washington Ins. Group, 142 A.D.2d 968, 968-69, 530 N.Y.S.2d 390, 390 (1988)("Where a mortgagee purchases the property at a foreclosure sale, the outstanding mortgage debt must be reduced by the greater of the mortgagee's purchase price or the actual market value of the property.")).
OCWEN argued below, and the trial court agreed, that OCWEN is entitled to the entire proceeds of the insurance settlement. Specifically, the trial court found that "the taking of title to the property increased the mortgagee's [OCWEN] interest in the insurance policy as that of an owner." This finding is erroneous, and a misreading of the holdings of Secured Realty and Wilborn. The rights of a loss-payable mortgagee are determined as of the time of the loss. See Norfolk & Dedham Mut. Fire Ins. Co. v. Schlehuber, 327 So.2d 891 (Fla. 3d DCA 1976)(citing Rosenbaum v. Funcannon, 308 F.2d 680 (9th Cir.1962); Whitestone Savings & Loan Ass'n v. Allstate Ins. Co., 28 N.Y.2d 332, 321 N.Y.S.2d 862, 270 N.E.2d 694 (1971)). In the instant case, at the time of loss, OCWEN's insurable interest was that of a loss-payable mortgagee. Upon electing to foreclose on the property, OCWEN's interest in the insurance proceeds was limited to any deficiency of the security debt that was not recouped in the foreclosure sale. See Wilborn, 279 So.2d at 463-64 ("[I]n no event is the plaintiff-mortgagee due to collect more than the debt secured.").
*592 Lenart asks this Court to limit OCWEN's recovery to monies owed as of the time of the loss, i.e., the amount of the security debt at the time of the fire, without regard to accrued interest, the foreclosure judgment and any subsequent costs. Lenart relies on Fifth Third Bank, v. Indiana Insurance Company, 771 N.E.2d 1218 (Ind.Ct.App.2002) to support its argument. We reject Lenart's argument and find that Fifth Third Bank is inapplicable where, as here, the mortgagee has obtained a foreclosure judgment and is recovering pursuant to that judgment. Cf. Fifth Third Bank, 771 N.E.2d at 1218.
In light of the foregoing, we find that OCWEN is only entitled to the amount of the deficiency, plus interest, and Lenart is entitled to the balance of the $90,000.00 settlement. Accordingly, the trial court's Order granting Summary Final Judgment and awarding the full amount of the settlement to OCWEN is reversed, and the matter is remanded for further proceedings consistent herewith.
Reversed and remanded.
NOTES
[1] OCWEN serviced Mr. Lenart's mortgage for Aurora Loan Services, Inc. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304597/ | HOWELL, J.
The bill in this case seeks to have set aside and declared null and void a decree of divorce granted to the defendant A. L. Pinkston in the Third Circuit Court of Davidson County, upon the theory that such decree was procured through fraud committed by the defendant upon the Court and the complainant in that the testimony of thei defendant and his witnesses in the Circuit Court case was false.
No answer to the bill in this case was filed and a pro confesso was entered against the) defendant.
The record discloses that the complainant was represented by counsel in the Circuit Court case and that upon a hearing on the merits, the parties and their counsel being present, the Circuit Judge granted the defendant an absolute divorce from the plaintiff upon his cross-bill. The transcript of the record in the Circuit Court is not before this Court.
Upon the hearing in the Chancery Court the Chancellor dismissed complainant’s bill by the following decree:
“In this cause, after a careful consideration of the entire record, together with the record in the Circuit Court which has been exhibited in this cause, the Court *278is forced to conclude that it is without jurisdiction to grant the relief prayed for in the bill.
“The pleadings in the Circuit Court, and particularly the answer and cross-bill of the defendant and cross-complainant in that Court, Albert L. Pinkston, show that the complainant therein was put on notice as to the charges of cruel and inhuman' treatment on her part, which charges were set out in the cross-bill with considerable particularity as to said alleged acts and the time and place of their occurrence, as well as the nature thereof.
“The Circuit Court record, as well as the record in this Court, reveal that there was a trial before Hon. E. P. Langford, Judge of the Third Circuit Court, on the merits, wherein the parties and certain of their witnesses testified, and following which the Court found in favor of the cross-complainant, Albert L. Pinkston, awarding him a decree of divorce.
“After a motion for a new trial was filed, taken under advisement and subsequently overruled, a petition on behalf of complainant therein for a Writ of Error Corum Nobis was filed where substantially the same charges were set forth as to the failure of the Court to hear all of complainant’s witnesses, and of conspiracy and intermeddling on the part of a certain Rev. Coleman and the daughter of defendant, as well as charges as to the falsity of certain testimony adduced by defendant and cross-complainant at said trial, as those contained in the petition of complainant in this Court.
“The record shows that said Writ of Error Corum Nobis was dismissed by the Circuit Judge who had tried the case.
“Complainant having failed to pursue her remedy of appeal from the judgment of the Circuit Court, is now *279without remedy in this Court under the facts charged in her hill.
“It is, accordingly, ordered, adjudged and decreed by the Court that complainant’s hill he, and the same hereby is dismissed at her cost for which execution may issue.”
This decree was entered on April 28, 1949, in Minute Book 165 at page 212. Thereafter on, May 25, 1949, this decree was amended by adding a paragraph granting an appeal to this Court and allowing thirty days from the date of the decree in Book 165 at page 212 within which “to file her transcript, hill of exceptions, make bond or take the oath provided for poor persons and otherwise perfect her appeal.” An appeal bond was filed on the same day, “May 25, 1949,” although it appears not to have been,signed until “May 27, 1949.” On May 27,’ 1949, an order was entered granting complainant thirty days from that date within which to file “transcript and bill of exceptions” and otherwise perfect her appeal. Another order was entered on June 27, 1949, extending the time for filing bill of exceptions thirty days from that date and again on July 26, 1949, by another order entered in Minute Book 166 at page 43, the complainant was allowed thirty days from that date, July 26, in which to file a bill of exceptions.
Nothing appears in the transcript from July 26, 1949, until on November 9, 1949, when complainant filed a petition in which she prayed among other things permission to withdraw her appeal to this Court and that the decree of April 29, 1949, entered in Minute Book 165 page 212, be set aside and she be granted a new trial. This petition was heard by the Chancellor on November 10, 1949, and the decree mentioned was set aside and *280a new trial granted. A new trial was Rad by the complainant and on Jnne 30, 1950, a decree was entered as follows:
“The Court having- heretofore granted a new trial in this cause by order of November 10', 1949, entered in Minute Book 166, page 381, and the case having come on to be reheard on the entire record, tog*ether with testimony of petitioner and her witnesses heard in open court, argument of counsel, etc., the Court is of opinion that the decree heretofore entered April 28, 1949, in Minute Book 165, Page 212, is, in all things, correct and proper and that the facts stated therein as being found by the Court have not been substantially altered or changed by the evidence introduced at the last hearing.
“It Is, Therefore, Ordered, Adjudged And Decreed by the Court that complainant’s bill be, and the same hereby is, dismissed at her cost, for which execution may issue.
“This the 30th day of June, 1950.”
On July 19, 1950, an order was entered granting an appeal and allowing thirty days to perfect it. An appeal bond was filed on August 4, 1950 and bill of exceptions filed on August 2,1950.
It does not appear that the defendant has entered any appearance in person or by counsel, either in the Chancery Court or in this Court, and we do not have the benefit of any briefs in his behalf.
The complainant appellant has filed assignments of error in which it is insisted that the Chancellor erred in denying the complainant the relief prayed in her bill.
Before considering the merits of the assignments of error, we are constrained to the conclusion that this case is not properly in this Court.
*281On April 28, 1949, tibie complainant’s bill was dismissed by tbe Chancellor. On May 25,1949, an appeal was granted and thirty days allowed from April 28, 1949 to perfect the appeal and on that day an appeal bond was filed. Other extensions of time were granted and no bill of exceptions was filed.
After the adjournment of that term of the Chancery Conrt of Davidson County and on November 9, 1949, a petition to rehear was filed and granted on November 10, 1949. The Chancellor was in error in granting the petition to rehear filed at the next term of the conrt. In the case of Shipley v. Barnett, 161 Tenn. page 437, 32 S. W. (2d) 1022, the Supreme Conrt after mentioning Chapter 65 of the Acts of 1885', and some other cases said:
“In each of these cases the point of decision was that :the control of the trial courts over their final judgments and decrees end with the adjournment of the term; and in each case this court was dealing with an effort made by a trial court to set aside or alter a judgment entered as a preceding term. In dealing with that proposition, it would, perhaps, have been more accurate if the court had said that such power over a final judgment continues in a trial court until the end of the term, unless the term should extend longer than thirty days from the date of the judgment. But since the point under consideration was that in any event the power expired at the end of the term, this qualification of the language used was hardly necessary.”
See also Mitchell v. Porter, 26 Tenn. App. 498, 173 S. W. (2d) 443.
Under Section 159 of the Code, the terms of the Chancery for Davidson County begin on the first Mondays of April and October of each year.
*282An examination of the record discloses that there is no merit in the assignments of error. There was a hearing of the divorce case in the Circnit Conrt npon the merits and a final decree entered. There was no appeal from this decree. The parties were properly before the Conrt, the plaintiff having filed a petition for divorce from bed and board and the defendant having filed an answer and a cross-bill in which he prayed for an absolute divorce. The hearing was before the trial Judge in the presence of the parties and their attorneys and no irregularity in the proceedings is pointed out. The record in that case is not before us. The complaint seems to be that the defendant’s witnesses swore falsely. If this was true it should have been shown to the trial Judge by competent evidence. The fact that this was not done does not indicate that the defendant practiced any fraud upon the Court or the plaintiff.
The Chancellor correctly held that he was without jurisdiction to set aside the decree for fraud under the facts of this case.
The bill in this case seeks a review or a new trial of the divorce case on the facts which can only be done in a divorce ease by appeal under Section 9039 of the Code. It is not a direct attack upon the decree for any fraud perpetrated upon the complainant as were the cases of Barbra v. Barbra, 170 Tenn. 559, 98 S. W. (2d) 89, and Rose v. Rose, 176 Tenn. 680, 145 S. W. (2d) 773, relied upon by appellant.
There is no merit in the assignments of error and they are overruled and the decree of the Chancellor is affirmed.
The complainant, appellant and her surety will pay the cost.
Hickerson, J., and Kizer, Sp. J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/2867426/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-02-00565-CV
Priscilla Flores and Reggie Flores, Appellants
v.
Temple Independent School District, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 190,804-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
All parties have requested dismissal of this appeal. We grant appellants' motion,
dismiss appellee's motion, and dismiss this appeal.
Jan P. Patterson, Justice
Before Justices Kidd, Yeakel and Patterson
Dismissed on Appellants' Motion
Filed: February 6, 2003 | 01-03-2023 | 09-06-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/3036477/ | FILED
NOT FOR PUBLICATION APR 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50382
Plaintiff - Appellee, D.C. No. 3:08-cr-00711-JLS
v.
MEMORANDUM *
FRANCISCO DE LA CONCHA-
OCAMPO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Francisco De La Concha-Ocampo appeals from the 42-month sentence
imposed following his guilty-plea conviction for attempted entry after deportation,
in violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 28 U.S.C.
*
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).
§ 1291, and we affirm.
De La Concha contends that the district court erred by declining to give a
theory of defense jury instruction. This contention lacks merit. The instruction
given by the district court covered De La Concha’s theory of defense because it
instructed the jury that he must have intended to cross the border to be free to go at
large within the United States. Thus, the district court’s failure to give De La
Concha’s requested instruction also did not impair his ability to present a defense.
See United States v. White, 974 F.2d 1135, 1139 (9th Cir. 1992); see also United
States v. Lombera-Valdovinos, 429 F.3d 927, 928-29 (9th Cir. 2005).
AFFIRMED.
2 09-50382 | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1597159/ | 638 So.2d 250 (1994)
Bernard Eugene LANNES
v.
JEFFERSON DOOR COMPANY.
No. 94-CA-1.
Court of Appeal of Louisiana, Fifth Circuit.
May 11, 1994.
*251 Frank A. Bruno, New Orleans, for plaintiff/appellee.
James W. Hailey, Jr., Metairie, for defendant/appellant.
Before KLIEBERT, WICKER and GOTHARD, JJ.
GOTHARD, Judge.
In this workers' compensation matter, defendant appeals a ruling which found the plaintiff to be temporarily totally disabled from a mental injury caused by a physical injury. For the following reasons, we affirm.
FACTS
The parties have stipulated to the following pertinent facts. Plaintiff worked for defendant-employer from October 30, 1979, until he suffered a work-related injury to his back on July 19, 1990. As a result of the injury, plaintiff was temporarily totally disabled and received workers' compensation benefits until November 6, 1991, when he was released to light duty by his treating physician. At that time, plaintiff had reached maximum medical improvement for his back injury and defendant offered plaintiff a job which was within the physical restrictions set by his treating physician. Plaintiff attempted to return to work, but alleges that he has been unable to perform his new duties because of a mental injury which was induced by the physical injury to his back.
A trial on the merits was held before an Office of Workers' Compensation hearing officer on March 31, 1993. On April 14, 1993, the hearing officer issued a ruling, finding plaintiff temporarily totally disabled under the workers' compensation laws because of a mental injury which was caused by the physical injury to plaintiff's back. The sole issue on appeal is whether or not the hearing officer erred in finding that the plaintiff proved by clear and convincing evidence that his mental injury was caused by his physical injury.
DISCUSSION
The applicable statute to the situation before us is LSA-R.S. 23:1021(7)(c), which provides:
(c) Mental injury caused by physical injury. A mental injury or illness caused by a physical injury to the employee's body shall not be considered a personal injury by accident arising out of and in the course of employment and is not compensable pursuant to this Chapter unless it is demonstrated by clear and convincing evidence.
Appellant argues that plaintiff failed to meet this more stringent burden of proof when presenting his case. We disagree.
R.S. 23:1021(7)(c) was enacted by the Louisiana Legislature as part of a package of revisions to the Workers' Compensation laws (Acts 1989, No. 454, effective January 1, 1990) and partly in response to the Louisiana Supreme Court decisions of Sparks v. Tulane Medical Center Hospital and Clinic, 546 So.2d 138 (La.1989) and Williams v. Regional Transit Authority, 546 So.2d 150 (La. 1989), which allowed recovery of workers' compensation benefits for job-related mental injuries. The new "clear and convincing evidence" standard required by R.S. 23:1021(7)(c) is a heavier burden of proof than the usual civil case "preponderance of the evidence" standard, but is less burdensome than the "beyond a reasonable doubt" standard of a criminal prosecution. See, Bryant v. Giani Investment Co., 626 So.2d 390, 392 (La.App. 4th Cir.1993), and the cases cited therein. To prove a matter by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is, much more probable than its nonexistence. See, Hines v. Williams, 567 So.2d 1139, 1141 (La.App. 2d *252 Cir.1990), writ denied, 571 So.2d 653 (La. 1990), and the cases cited therein.
In the matter before us, the plaintiff testified at trial that he was in good health prior to the work-related back injury and began experiencing debilitating depression after the injury. Plaintiff testified that prior to his back injury, he had not missed work due to depression or a panic disorder nor had he ever sought medical treatment for emotional problems. Plaintiff further testified that after his back injury, he received less disposable income, which caused financial problems and contributed to the loss of his home to his creditors. After his back injury, his marital relations with his wife also deteriorated. Plaintiff's testimony, which was uncontroverted by defendant, was also corroborated by the testimony at trial of his wife.
Plaintiff's treating psychiatrist, Dr. Sidney Smith, testified via deposition that plaintiff suffered from depression and panic disorder, and that these conditions rendered him unable to return to work. Dr. Smith opined that plaintiff's back injury was one of several factors which caused his debilitating mental problems. However, plaintiff's mental disability only manifested itself after his back injury. Further, evidence revealed that plaintiff had also suffered a previous work-related back injury in 1987, from which he recovered and returned to work without any difficulties. Dr. Smith also felt that with the proper treatment, plaintiff would be able to return to the lighter duty job in three to six months.
After reviewing all of the evidence, including both the lay and medical testimony and the applicable law, the hearing officer determined that the evidence is clear and convincing that plaintiff is disabled because of a mental illness, and that the evidence is clear and convincing that plaintiff's back injury of July 19, 1990 was causally related to the subsequent mental illness, especially in light of plaintiff's good mental health prior to the back injury. The hearing officer therefore awarded plaintiff temporary total disability compensation for his mental illness.
Factual findings regarding the existence, causation and duration of disability are entitled to great weight and should not be disturbed on appeal absent manifest error. Bailey v. Zurich American Insurance Co., 503 So.2d 611, 614 (La.App. 4th Cir.1987). Whether or not a party has met his burden of proof is likewise a factual finding subject to the manifest error rule. After a thorough review of the record, we cannot say that the hearing officer was manifestly erroneous in finding that plaintiff proved by clear and convincing evidence that his mental injury was caused by his physical injury. Accordingly, for the foregoing reasons, the ruling of the hearing officer in favor of plaintiff is affirmed. Costs of these proceedings are assessed against defendant.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1026297/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1024
In Re: JAMES M. MILLS, State Trooper, in both his official
and personal capacity; D. L. LEMMON, Superintendent of the
West Virginia State Police, in his official capacity,
Petitioners.
On Petition for Writ of Mandamus. (3:07-cv-00142-JPB)
No. 08-1032
BRENDA A. BOSELY, Administratrix of the Estate of James C.
Bosely, Deceased; BRENDA BOSELY,
Plaintiffs - Appellees,
v.
COLONEL D. L. LEMMON, Superintendent of the West Virginia
State Police, in his official capacity; JAMES M. MILLS, State
Trooper, in both his official and personal capacity,
Defendants - Appellants,
and
MINERAL COUNTY SHERIFF’S OFFICE; CHIEF DEPUTY SABIN, of the
Mineral County Sheriff’s Office, in both his official and
personal capacity; JOHN DOES 1-5, in both their official and
personal capacities,
Defendants.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
District Judge. (3:07-cv-00142-JPB)
Argued: May 13, 2008 Decided: July 29, 2008
Before TRAXLER and GREGORY, Circuit Judges, and Alexander WILLIAMS,
Jr., United States District Judge for the District of Maryland,
sitting by designation.
Petition granted and affirmed by unpublished per curiam opinion.
ARGUED: (No. 08-1024) Lucien Garlow Lewin, STEPTOE & JOHNSON,
Martinsburg, West Virginia; Perry Wayne Oxley, OFFUTT, FISHER &
NORD, Huntington, West Virginia, for Petitioners. John Christian
Yoder, Harpers Ferry, West Virginia, for Respondents.
(No. 08-1032) Jason Patrick Foster, STEPTOE & JOHNSON, Martinsburg,
West Virginia, for Appellants. John Christian Yoder, Harpers
Ferry, West Virginia, for Appellees. ON BRIEF: (No. 08-1024) Jason
P. Foster, STEPTOE & JOHNSON, Martinsburg, West Virginia, for
Petitioners. (No. 08-1032) Lucien G. Lewin, STEPTOE & JOHNSON,
Martinsburg, West Virginia, for Appellants.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Brenda A. Bosely (“Bosely”) brought this action on her own
behalf and as administratrix of the estate of the late Dr. James C.
Bosely. Originally filed in West Virginia state court, the suit
alleges various causes of action arising out of Dr. Bosely’s death
during the execution by two law enforcement officers of a mental
hygiene order. After removal of the action to federal district
court, the district court granted a motion by Bosely to remand the
case back to state court. The defendants now petition for a writ
of mandamus requiring the district court to retain jurisdiction
over the case. One defendant also appeals the denial of a motion
to dismiss the complaint on the grounds of absolute quasi-judicial
immunity and qualified immunity. We grant the mandamus petition
and affirm the denial of the motion to dismiss.
I.
According to Bosely’s complaint (“the complaint”), Bosely
swore out a mental hygiene complaint for her husband, Dr. Bosely,
alleging that he was suicidal and a danger to others. Bosely
alleges that West Virginia State Police Trooper James Mills and
Chief Deputy of the Mineral County Sheriff’s Office Paul Sabin
arrived at Dr. Bosely’s residence and took him into custody
pursuant to a mental hygiene detention order. The complaint
alleges that the officers “bashed Dr. Bosely’s head against the
3
kitchen wall after taking Dr. Bosely into custody, leaving blood on
the kitchen wall.” (Complaint, ¶ 20). It also alleges that
shortly thereafter, “Dr. Bosely received a single gunshot wound to
his head” and that he was pronounced dead on the scene at
approximately 10:14 that morning. (Complaint, ¶ 21). The
complaint alleges that Mills and Sabin knew that Dr. Bosely had
guns in the house and that he was potentially a danger to himself
and others. It also alleges that at all relevant times, the
defendants were acting under color of state law. Finally, it
alleges that Superintendent of the West Virginia State Police
Colonel D.L. Lemmon was vested with authority and control of Mills
and is vicariously liable for his actions.
The complaint asserts causes of action pursuant to
42 U.S.C.A. § 1983 (West 2003), the West Virginia Constitution, and
West Virginia common law. Specifically, it alleges that the
defendants violated Bosely’s rights not to be deprived of life
without due process of law under the Fifth and Fourteenth
Amendments to the United States Constitution and Article 3, § 10 of
the West Virginia Constitution and his rights to be free from
unreasonable searches and seizures under the Fourth and Fourteenth
Amendments to the United States Constitution and Article 3, § 6 of
the West Virginia Constitution. It also asserts causes of action
for negligence and wrongful death.
4
The complaint names Lemmon and Mills (“the state defendants”)
as defendants in their official capacities as employees of the
State of West Virginia, up to the limit of the State’s insurance
policy. Mills is also named in his official capacity. Sabin is
named in both his individual and official capacities. And the
Mineral County Sheriff’s Office is the final named defendant.
The defendants removed the case to federal district court on
the basis of federal-question jurisdiction. See
28 U.S.C.A. §§ 1446, 1441, 1331 (West 2006). The state defendants
subsequently moved to dismiss the complaint on the basis of
absolute quasi-judicial immunity and qualified immunity. They also
asserted that official-capacity claims are not permissible under
42 U.S.C.A. § 1983, and that the complaint otherwise failed to
state a claim upon which relief could be granted. The state
defendants further asserted Eleventh Amendment immunity against the
official-capacity claims that were based on respondeat superior
principles.
Bosely took the position that the state defendants waived any
defense of Eleventh Amendment immunity when they removed her case
to federal court, and she therefore urged the district court to
retain jurisdiction over the entire case. Alternatively, citing
Morris v. Canterbury, 2:05-CV-1 (S.D. W. Va. May 2, 2005), she
suggested that if the district court concluded that the defendants
had not waived Eleventh Amendment immunity as a defense to the
5
official-capacity claims, the entire case should be remanded to
state court because the remaining state-law claims would
predominate and litigating the official-capacity claims in state
court and the other claims in federal court on the same facts would
be inconvenient.1
For their part, the state defendants maintained that they had
not waived Eleventh Amendment immunity by removing the case to
federal court and that the respondeat superior claims were barred
by the Eleventh Amendment. They also argued that neither
considerations of convenience nor the predominance of state-law
claims authorized a remand of the entire action back to state
court.
The district court granted Bosely’s motion to remand. The
entirety of the district court’s substantive analysis regarding
this decision was as follows:
In their Motion to Remand, plaintiffs cite Morris v.
Canterbury et al., 2:05-CV-1, (S.D.W.V. May 2, 2005), in
which the Southern District of West Virginia remanded all
causes of action to the Kanawha County Circuit Court.
The Court finds remand of all claims to be a suitable
disposition for the present case as well. The Court
questions the theory of removing the case based on
federal jurisdiction and then moving to dismiss the case
based on lack of jurisdiction. Because the State Court
1
Bosely asserted this position in her memorandum to her motion
to remand. In the motion itself, Bosely actually requested
primarily that the district court remand the entire case to state
court and alternatively that the court find that the defendants had
waived immunity by removing the case to federal court and therefore
retain jurisdiction over the entire case.
6
has jurisdiction to hear all claims, the Court finds it
best to remand the entire case.
Based on the foregoing, the Court finds that the
plaintiffs’ Motion to Remand should be, and hereby is,
GRANTED. The Motion to dismiss is DENIED. Accordingly,
this case is hereby REMANDED to the Circuit Court of
Mineral County, West Virginia, for all further
proceedings.
(Remand Order, at 2) (citations omitted).
The state defendants filed this petition for writ of mandamus
challenging the district court’s decision to remand the case to
state court; Sabin and the Mineral County Sheriff’s Office later
joined in the petition. We granted a motion by the defendants to
stay the proceedings in the district court, and the state court has
likewise stayed all proceedings pending the disposition of this
petition.
Mills has also appealed the denial of his motion to dismiss on
the bases of absolute quasi-judicial and qualified immunity.
II.
The defendants contend that they properly removed this case to
federal court and that the district court was obliged to retain
jurisdiction over Bosely’s claims. They therefore argue that the
district court erred by remanding the action to state court and
request that we order the court via writ of mandamus to retain
jurisdiction. Bosely, however, contends that 28 U.S.C.A. § 1447(d)
(West 2006) precludes our review of the remand order because the
7
district court remanded the case based on its perception that it
lacked subject-matter jurisdiction over the claims. We conclude
that we are authorized to review the remand order, and we grant the
relief that the defendants request.
Subject to an exception not applicable in this case, section
1447(d) provides that “[a]n order remanding a case to the State
court from which it was removed is not reviewable on appeal or
otherwise.” 28 U.S.C.A. § 1447(d). Notwithstanding this seemingly
clear language, the Supreme Court has held that appellate-court
review of remand orders is statutorily prohibited only if the
remand is based on one of the grounds listed in
28 U.S.C.A. § 1447(c) (West 2006)--lack of subject-matter
jurisdiction or a timely objected-to defect in the removal
procedure. See Powerex Corp. v. Reliant Energy Servs., Inc., 127
S. Ct. 2411, 2416 (2007). In determining whether a remand order is
reviewable, the critical question is not whether the district court
correctly based its remand on a ground listed in § 1447(c), but
rather, whether the district court believed that such a ground
pertained. See In re Blackwater Sec. Consulting, LLC, 460 F.3d
576, 585 (4th Cir. 2006). Here, no defect in the removal procedure
is alleged; thus, we focus on whether the district court believed
that it lacked subject-matter jurisdiction over the case. Our
review is precluded if “the District Court relied upon a ground
that is colorably characterized as subject-matter jurisdiction.”
8
Powerex Corp., 127 S. Ct. at 2418. If, however, the district court
did not believe that its lack of subject-matter jurisdiction
required the remand, we are authorized to consider the correctness
of the remand decision. See Ellenburg v. Spartan Motors Chassis,
Inc., 519 F.3d 192, 196 (4th Cir. 2008).
Here, we have no reason to believe that the remand order was
based on a perceived lack of subject-matter jurisdiction over the
case. The order acknowledged that the state defendants asserted
Eleventh Amendment immunity as a defense to Bosely’s federal
constitutional claims only.2 And no party disputed that the
district court possessed subject-matter jurisdiction over at least
some of the claims. Indeed, all parties explicitly recognized that
any decision to remand all claims back to state court would be
based on an exercise of the court’s discretion to obtain the most
desirable result. And the language of the remand order, which
includes no reference to § 1447, confirms that the remand decision
was, in fact, based on a discretionary weighing of prudential
concerns rather than on a jurisdictional determination. See
(Remand Order, at 2) (noting Bosely’s reliance on Morris and
concluding that remand of all claims was a “suitable disposition”);
id. (“find[ing] it best to remand the entire case” in light of the
fact that the state court offered a forum where all claims could be
2
In fact, although it is not important to our decision, we
note that Eleventh Amendment immunity was asserted only as a
defense to some of those claims.
9
heard together).3 Because the basis for the remand of the case
could not be “colorably characterized as subject-matter
jurisdiction,” Powerex Corp., 127 S. Ct. at 2418, our review of the
remand order is not precluded. See Barksdale v. Washington Metro.
Area Transit Auth., 512 F.3d 712, 715 (D.C. Cir. 2008) (holding
that court of appeals was authorized to review remand where remand
was based on district court’s discretionary determination that
remand would be more convenient for plaintiff’s counsel).
Having determined that the remand order is reviewable, we have
little trouble concluding that remand was improper. Federal-
question jurisdiction clearly exists over Bosely’s § 1983 claims.
See Front Royal & Warren County Indus. Park Corp. v. Town of Front
Royal, 135 F.3d 275, 278 (4th Cir. 1998). And, the district court
possessed supplemental jurisdiction over the state-law claims
arising out of the same set of facts. See 28 U.S.C.A. § 1367 (West
2006). Although the state defendants asserted Eleventh Amendment
immunity as a defense to some of the § 1983 claims, the fact that
that defense can be waived, see Lapides v. Bd. of Regents, 535 U.S.
613, 618 (2002), suggests that, even if it was not waived here, it
3
The district court’s statement that it “question[ed] the
theory of removing the case based on federal jurisdiction and then
moving to dismiss the case based on lack of jurisdiction,” (Remand
Order, at 2), apparently refers to the issue of whether the
defendants waived Eleventh Amendment immunity by removing Bosely’s
case to federal court. That language does not even suggest that
the district court disagreed with the parties’ view that it
possessed subject-matter jurisdiction over at least some of the
claims.
10
is not jurisdictional, see United States v. Cotton, 535 U.S. 625,
630 (2002) (explaining that lack of subject-matter jurisdiction
cannot be waived); Eriline Co. S.A. v. Johnson, 440 F.3d 648, 654
n.8 (4th Cir. 2006) (“Because the statute of limitations is a
waivable defense, the district court erroneously determined that
its restrictions are jurisdictional in nature.”).4 Moreover, even
if Eleventh Amendment immunity is a jurisdictional bar, assertion
of the bar against one claim does not destroy removal jurisdiction
over the remaining claims--certainly not over the claims against
Sabin and the Mineral County Sheriff’s Office, to which the
immunity clearly does not apply.5 See Wisconsin Dep’t of
Corrections v. Schacht, 524 U.S. 381, 392 (1998) (“A State’s proper
assertion of an Eleventh Amendment bar after removal means that the
federal court cannot hear the barred claim. But that circumstance
does not destroy removal jurisdiction over the remaining claims .
. . .”). Thus, it is apparent that the district court possessed
subject-matter jurisdiction over this case.
4
The Supreme Court has not yet decided whether the assertion
of Eleventh Amendment immunity is a jurisdictional matter. See
Wisconsin Dep’t of Corrections v. Schacht, 524 U.S. 381, 391
(1998).
5
Because we conclude that the district court retained
jurisdiction over at least some of the claims even if the state
defendants validly asserted Eleventh Amendment immunity, we need
not address whether the removal of the case operated as a waiver of
that defense. Cf. Lapides v. Board of Regents, 535 U.S. 613, 622-
24 (2002) (concluding that state’s removal of case to federal court
amounted to a waiver of the state’s Eleventh Amendment immunity, at
least as to the state-law claims asserted against the state).
11
Possessing federal-question jurisdiction, the district court
was obliged to exercise it; it had no authority to decline the case
simply because it believed that it would be better for the case to
proceed in state court. See Deakins v. Monaghan, 484 U.S. 193, 203
(1988) (“[T]he federal courts have a virtually unflagging
obligation to exercise their jurisdiction . . . .” (internal
quotation marks omitted)); Barksdale, 512 F.3d at 716 (holding that
district court lacked authority “to remand a case for the
convenience of counsel”); Martin v. Stewart, 499 F.3d 360, 363 (4th
Cir. 2007) (“The Supreme Court has repeatedly instructed that
federal courts have a strict duty to exercise the jurisdiction that
is conferred upon them by Congress.” (internal quotation marks
omitted)). And because there was no valid basis for the district
court to refuse to exercise its jurisdiction over this case,
mandamus relief is in order. See Thermtron Prods., Inc. v.
Hermansdorfer, 423 U.S. 336, 351-53 (1976); Borneman v. United
States, 213 F.3d 819, 826 (4th Cir. 2000).
III.
We next address Mills’ appeal of the district court’s denial
of the state defendants’ motion to dismiss the complaint.
Initially, we note that we can only conclude from the fact
that the district court denied the motion to dismiss summarily,
12
without any discussion of its merits, that the dismissal was
without prejudice and was based simply on the fact that the court
had decided to remand the entire case back to state court. Mills
urges us to reverse the denial, contending that the state
defendants are entitled to absolute quasi-judicial immunity and
qualified immunity. Because these immunities are designed to
shield those that they protect from not only the burdens of
liability, but also the burdens of litigation, see Mitchell v.
Forsyth, 472 U.S. 511, 526-27 (1985), we consider whether the
record at this stage of the litigation demonstrates that Mills is
entitled to either of these immunities. We conclude that it does
not.
We begin with the doctrine of absolute quasi-judicial
immunity. Judges performing judicial acts within their
jurisdiction are entitled to absolute immunity from civil liability
claims. See Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (per
curiam). “‘[Q]uasi-judicial’ . . . officials whose duties are
comparable to those of judges or prosecutors” are likewise entitled
to absolute immunity. Ostrzenski v. Seigel, 177 F.3d 245, 249 (4th
Cir. 1999); see Goldstein v. Moatz, 364 F.3d 205, 213 (4th Cir.
2004). And such immunity extends to the judge’s subordinates for
“functions that are more administrative in character [that] have
been undertaken pursuant to the [judge’s] explicit direction.”
Kincaid v. Vail, 969 F.2d 594, 601 (7th Cir. 1992). The basis for
13
extending the immunity in these situations is to prevent a judge’s
subordinates from becoming a “lightning rod for harassing
litigation” challenging decisions for which the judge is immune.
Kermit Constr. Corp. v. Banco Credito Y Ahorro Ponceno, 547 F.2d 1,
3 (1st Cir. 1976). Relying on Martin v. Hendren, 127 F.3d 720 (8th
Cir. 1997), Mills contends that he is entitled to absolute quasi-
judicial immunity since the complaint seeks to hold him liable for
his execution of a judicial order. In Hendren, Officer Hendren
injured Martin when carrying out a judge’s order to remove Martin
from the judge’s courtroom. In a subsequent federal action, the
Eighth Circuit held in a split-panel decision that Hendren was
entitled to absolute quasi-judicial immunity from suit since “[a]
judge’s absolute immunity extends to public officials for acts they
are specifically required to do under court order or at a judge’s
direction.” Hendren, 127 F.3d at 721 (internal quotation marks
omitted).
We do not find the Eighth Circuit’s decision persuasive. As
recognized by the dissent in that case, the majority failed to
appreciate the distinction between protection from liability simply
for following a judge’s order and protection from liability for
carrying out a judge’s order in a manner not sanctioned by the
judge. See Hendren, 127 F.3d at 723 (Lay, J., dissenting); see
also Richman v. Sheahan, 270 F.3d 430, 436 (7th Cir. 2001); Martin
v. Bd. of County Comm’rs, 909 F.2d 402, 405 (10th Cir. 1990) (per
14
curiam) (“[A] judicial warrant contains an implicit directive that
the arrest and subsequent detention be carried out in a lawful
manner.”). Here, Mills’s alleged unconstitutional execution of the
order was not specifically authorized by the judicial officer who
issued the warrant. Nor does the complaint seek to hold Mills
liable for a quasi-judicial decision. Rather, the decision
challenged in the complaint is the defendants’ decision of how to
execute the warrant. Thus, the state defendants clearly are not
entitled to absolute quasi-judicial immunity. See Richman, 270
F.3d at 435-36 (holding that officers ordered to restrain man in
courtroom were not entitled to absolute quasi-judicial immunity
from suit alleging the officers used excessive force in restraining
the man); Bd. of County Comm’rs, 909 F.2d at 405 (holding that
officers executing arrest warrant were not entitled to absolute
quasi-judicial immunity from suit alleging the officers used
excessive force and provided constitutionally inadequate medical
attention in executing the warrant).
Qualified immunity, not absolute immunity, is the defense that
will be available to the state defendants if it is supported by the
facts. Qualified immunity generally shields “[g]overnment
officials performing discretionary functions . . . from liability
for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457
15
U.S. 800, 818 (1982). Mills argues that if the district court did
not err in failing to grant his motion to dismiss on the doctrine
of absolute quasi-judicial immunity, it erred in failing to dismiss
the constitutional claims against him in his individual capacity on
the basis of qualified immunity. It is that issue to which we now
turn.6
“In a suit against an officer for an alleged violation of a
constitutional right, the requisites of a qualified immunity
defense must be considered in proper sequence.” Saucier v. Katz,
533 U.S. 194, 200 (2001). The threshold inquiry is whether the
facts alleged, taken in the light most favorable to Bosely,
demonstrate the violation of a constitutional right. See id. If
they do, then we must determine whether the contours of the right
were clearly established such that a reasonable officer would
understand that his actions violated that right. See id. at 201.
We review a district court’s decision to deny a motion to dismiss
on the basis of qualified immunity de novo. See Blankenship v.
Manchin, 471 F.3d 523, 528 (4th Cir. 2006).
Mills’ argument on appeal is simply that the allegations in
the complaint, even if taken as true, are too vague and conclusory
to demonstrate the violation of constitutional rights. See Bell
6
The denial of a motion to dismiss on the basis of qualified
immunity is an appealable order. See Behrens v. Pelletier, 516
U.S. 299, 307 (1996).
16
Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007) (holding that
allegations in complaint must be sufficient “to state a claim to
relief that is plausible on its face”). We disagree. A complaint
need only give “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
“Specific facts are not necessary; the statement need only “‘give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 127 S. Ct.
2197, 2200 (2007) (per curiam) (quoting Twombly, 127 S. Ct. at
1964). There is no heightened pleading standard for qualified-
immunity cases. See Trulock v. Freeh, 275 F.3d 391, 405 (4th Cir.
2001).
Here, the complaint alleged that, after taking Dr. Bosely into
custody, “Mills and Sabin bashed Dr. Bosely’s head against the
kitchen wall” and failed to protect him from being shot in the
head, and that Dr. Bosely died shortly thereafter. (Complaint,
¶¶ 20-22). While it may well be the case that Bosely will
eventually be required to plead her claims with more specificity in
order to protect the state defendants from possibly being
“subjected to unnecessary and burdensome discovery or trial
proceedings,” Crawford-El v. Britton, 523 U.S. 574, 598 (1998); see
Iqbal v. Hasty, 490 F.3d 143, 157-59 (2d Cir. 2007), we conclude
that at this stage, the factual allegations are sufficient, and
denial of the motion to dismiss was proper.
17
IV.
In sum, we grant the defendants’ petition for a writ of
mandamus requiring the district court to retain jurisdiction over
this case and we affirm the district court’s denial of the state
defendants’ motion to dismiss the complaint on the basis of
absolute quasi-judicial and qualified immunity.
PETITION GRANTED AND AFFIRMED
18 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597295/ | 3 So.3d 131 (2009)
Travis DAVIS, Appellant/Cross-Appellee,
v.
Jerry PAEPKE, Appellee/Cross-Appellant.
No. 2007-CA-01689-COA.
Court of Appeals of Mississippi.
February 3, 2009.
*133 Ellie Burnham Word, Jackson, attorney for appellant.
Christopher G. Evans, Tupelo, attorney for appellee.
Before LEE, P.J., ISHEE and CARLTON, JJ.
LEE, P.J., for the Court.
FACTS
¶ 1. In 1999, Jerry Paepke negotiated for an option to purchase real property in Chickasaw County from his long-time friend, Mabel Leathers, one of six heirs to the Wheeler estate. The Wheeler estate owned 511 acres on the north side of Highway 41 and 134 acres on the south side of Highway 41. Paepke believed he could resell the property for a profit, but he was not financially able to purchase the land on his own. Paepke asked another friend, Travis Davis, to purchase the land and split the profits with him when the land was resold. The Wheelers quoted Paepke a price of $450 an acre for the north 511 acres and $350 an acre for the south 134 acres. Paepke contacted Davis's attorney to draft purchase options to be executed by each of the six Wheeler heirs. The purchase options showed Paepke as the purchaser of the land.
¶ 2. On September 9, 1999, Paepke and the Wheeler heirs met at Davis's attorney's office. Davis's attorney presented Paepke with a typed partnership agreement. The agreement was drafted by Davis's attorney.[1] It stated:
Dear Jerry:
This confirms our understanding concerning my purchase on September 9, 1999 of the Wheeler property located Northwest of Okolona. You helped me *134 acquire this property through negotiations with the Wheeler family.
If the property is sold, I will divide equally with you the profit. The profit is the sale price less the price I paid for the property and my expenses.
I anticipate selling the property North of Highway 41 in the near future. I will not sell it for an unreasonably low price and will tell you what the offer is. You or your designee may meet the offer within ten days and if you do not I am free to sell it for the offer. The proceeds from the sale will be first applied to reimburse me for my investment and the expenses of the sale and then any remainder divided equally with you.
If I do not sell the property South of Highway 41, I will convey to you or your designee a one-half undivided interest in it provided that all of my investment and expenses have been paid for all of the property.
If you agree this is our understanding, please sign a copy of this letter.
Davis's and Paepke's signatures appear at the bottom of the letter. Paepke testified that after he signed the agreement, he and the Wheeler heirs were instructed to go to another law office where the closing took place. According to Paepke, he was not advised until the closing that the land would be placed in Davis's name only or that the closing would take place at another location.
¶ 3. Davis purchased the property for $276,850 and sold it for $434,025, realizing a profit of $157,175. The north section of the property was sold in December 1999 for $340,025. Two-thirds of the south section of the property was sold in March 2000 for approximately $60,000. The remaining one-third of the south section of the property was sold in 2003 for approximately $30,000. Davis did not notify Paepke of the offers on the property and did not give him the ten-day option on the property as per their agreement. Davis also refused to split the profits of the sale with Paepke.
¶ 4. Davis admits he did not comply with any of the terms of the agreement. Davis argues that he did not have the agreement drafted or agree to its terms, despite the letter being on what appeared to be his letterhead and his signature being at the bottom of the document. He testified that he did not see the document until Paepke brought it to his office and asked him to sign it. Davis testified that he looked at the document, saw Paepke's name, and signed it, but he did not read it.
¶ 5. Davis contends that the terms he agreed to were handwritten by him on a sheet of yellow legal pad paper, which he no longer had. He testified that the handwritten agreement basically stated that Paepke had a buyer who would buy the land for $1,000 an acre within thirty days. Davis testified that he gave Paepke sixty days to sell the land, but no buyer was found. Davis sold the land on his own and refused to split the profits with Paepke because Paepke did not provide a buyer. Paepke denied that he told Davis there was a secured buyer for the property, but Paepke admitted he told Davis that "the Mossy Oak people were paying up to $1,000.00 an acre on some good hunting ground[s]."
¶ 6. Paepke testified that he made improvements to the property, such as repairs to the houses located on the property, dozier work, and repairing road and fire lanes. Davis denied that Paepke had made any improvements to the property. Davis paid Paepke $2,500 and promised to pay him more at a later date. Davis testified that he did not pay Paepke any additional money because he did not believe it was owed and because Paepke began making threats to physically harm him.
*135 PROCEDURAL HISTORY
¶ 7. Paepke filed a complaint against Davis in the Chickasaw County Circuit Court alleging breach of contract, unjust enrichment, and imposition of a constructive trust. Davis answered the complaint and filed a counterclaim, which asserted fraud in the inducement and intentional infliction of emotional distress.
¶ 8. A three-day jury trial was held in the Chickasaw County Circuit Court. At the close of testimony, the trial court instructed the jury that the September 9 agreement was a valid and enforceable contract which limited the jury to finding what, if any, damages were owed to each party. The jury returned a verdict for Paepke in the amount of $72,954.30. The jury found no damages in Davis's countersuit against Paepke. The trial court subsequently entered a judgment in favor of Paepke for $72,954.30 plus post-judgment interest at the rate of eight percent per annum and dismissed Davis's counterclaim with prejudice. Davis filed a motion for a judgment notwithstanding the verdict or, in the alternative, for a new trial, which was denied by the trial court.
¶ 9. Davis now appeals, asserting the following issues: (1) the trial court erred in instructing the jury that the instrument was a valid contract; (2) even if the instrument was a valid contract, Paepke acted as a real estate broker in violation of the Real Estate Brokers License Law thus making the contract unenforceable; (3) the trial court erred in dismissing Davis's counterclaim and defense of fraudulent inducement; (4) the trial court improperly excluded evidence of Davis's costs incurred during the sale of the land; and (5) reversal or a new trial is required since the jury verdict was based on the trial court's erroneous findings of fact and conclusions of law. Paepke cross-appeals, asserting that the trial court erred in failing to award him prejudgment interest. Finding no error, we affirm.
DISCUSSION
I. DID THE TRIAL COURT ERR IN FINDING THAT THE AGREEMENT BETWEEN THE PARTIES WAS A VALID CONTRACT?
¶ 10. Davis asserts that the September 9, 1999, document was not a valid contract because it lacked adequate consideration; thus, the trial court committed reversible error in giving peremptory instruction C-5, which instructed the jury to consider the document valid and enforceable.
¶ 11. This Court reviews a trial court's decision to give a peremptory instruction the same as a motion for a directed verdict. Windmon v. Marshall, 926 So.2d 867, 872(¶ 20) (Miss.2006). The grant or denial of a peremptory instruction or a directed verdict is reviewed de novo. Id. "If the Court finds that the evidence favorable to the non-moving party and the reasonable inferences drawn therefrom present a question for the jury, the motion should not be granted." Id. (quoting Entergy Miss., Inc. v. Bolden, 854 So.2d 1051, 1055(¶ 7) (Miss.2003)). However, "[o]ur rules and case law allow for questions to be removed from the jury's consideration when there exists no factual question for it to resolve." Entergy Miss., 854 So.2d at 1055(¶ 8).
¶ 12. After hearing the testimony, the trial judge determined sua sponte that the agreement was a valid contract and that the jury would be instructed as such. The trial judge gave the following reasons for his finding:
Mr. Davis is a well-known, respected businessman. He has businesses, various businesses; and the lawyers know and understand that when the parties negotiate, those prior negotiations and contemporaneous negotiations are *136 merged into a contract. It's not vague, and it is complete on its face.
....
I don't know of any contract that could be plainer or clearer than the contract between the parties. The contract was prepared by, admittedly by Mr. Davis'[s] attorney.... So the contract is to be more strictly construed against the party that drew the contract, so the Court has no other alternative but to find that this was a binding, legal contract between the parties.
¶ 13. One of the six elements of a valid contract is consideration. Rotenberry v. Hooker, 864 So.2d 266, 270(¶ 13) (Miss.2003). Consideration is defined as: "(a) an act other than a promise, or (b) a forbearance, or (c) the creation, modification or destruction of a legal relation, or (d) a return promise, bargained for and given in exchange for the promise." Marshall Durbin Food Corp. v. Baker, 909 So.2d 1267, 1273(¶ 14) (Miss.Ct.App.2005) (quoting City of Starkville v. 4-County Elec. Power Ass'n, 819 So.2d 1216, 1220(¶ 10) (Miss.2002)). "All that is needed to constitute a valid consideration to support an agreement or contract is that there must be either a benefit to the promissor or a detriment to the promisee. If either of these requirements exist, there is a sufficient consideration." Theobald v. Nosser, 752 So.2d 1036, 1040(¶ 15) (Miss. 1999) (quoting American Olean Tile Co. v. Morton, 247 Miss. 886, 893, 157 So.2d 788, 790 (1963)).
¶ 14. Davis argues that the agreement is not a valid contract because it only contains past consideration. Marshall Durbin Food Corp., 909 So.2d at 1276(¶ 22) ("In most situations, past consideration may not serve as consideration."). Davis cites to the sentence in the agreement that states, "You helped me acquire this property through negotiations with the Wheeler family." (Emphasis added). We find that even though the negotiations were in the past, Paepke continued to suffer a legal detriment by allowing Davis to benefit from his option to purchase the land. Paepke continued to be restricted by this after the partnership agreement. Paepke also made, or attempted to make, improvements to the property and continued to attempt to find a buyer. We find that sufficient consideration existed to support the contract.
¶ 15. In finding that this argument is without merit, we also find that Davis's argument that the trial court improperly denied proposed jury instructions D-7 and D-8 is without merit. Proposed jury instruction D-7 instructed the jury of the elements of a valid contract. Proposed jury instruction D-8 gave the jury the definition of consideration and instructed the jury that past consideration is insufficient to support a contract. These instructions were unnecessary as the only issue for the jury to resolve regarding the contract was that of damages.
II. DID PAEPKE ACT AS A REAL ESTATE BROKER IN VIOLATION OF THE REAL ESTATE BROKERS LICENSE LAW?
¶ 16. Davis next argues that even if the agreement is found to be a valid contract, Paepke illegally acted as a real estate broker; thus, the contract is unenforceable. Davis filed a motion for summary judgment on this issue, which was denied. He argues that the trial court committed reversible error in denying his motion for summary judgment, and at the least, the jury should have been instructed to consider his defense that the contract may have been illegal.
1. Did the trial court err in denying Davis's motion for summary judgment?
¶ 17. This Court employs a de novo standard of review of a lower court's grant *137 or denial of a motion for summary judgment. Pratt v. City of Greenville, 918 So.2d 81, 82(¶ 4) (Miss.Ct.App.2006). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). "The evidence must be viewed in the light most favorable to the party against whom the motion has been made," and the moving party bears the burden of demonstrating that no genuine issue of fact exists. Pratt, 918 So.2d at 82-83(¶ 4). If there is no genuine issue of material fact, then the moving party is entitled to a judgment as a matter of law. Id. at 83(¶ 4).
¶ 18. The law regarding the licensure of real estate agents, Mississippi Code Annotated section 73-35-1 (Rev. 2008), states that it is unlawful for a person to act as a real estate broker in this state without first obtaining the appropriate license. A real estate broker includes:
all persons, partnerships, associations and corporations, foreign and domestic, who for a fee, commission or other valuable consideration, or who with the intention or expectation of receiving or collecting the same, list, sell, purchase, exchange, rent, lease, manage or auction any real estate, or the improvements thereon, including options; or who negotiate or attempt to negotiate any such activity; or who advertise or hold themselves out as engaged in such activities; or who direct or assist in the procuring of a purchaser or prospect calculated or intended to result in a real estate transaction. The term "real estate broker" shall also include any person, partnership, association or corporation employed by or on behalf of the owner or owners of lots or other parcels of real estate, at a stated salary or upon fee, commission or otherwise, to sell such real estate, or parts thereof, in lots or other parcels, including timesharing and condominiums, and who shall sell, exchange or lease, or offer or attempt or agree to negotiate the sale, exchange or lease of, any such lot or parcel of real estate.
Miss.Code Ann. § 73-35-3(1) (Rev.2008).
¶ 19. We cannot find that Paepke acted as a real estate broker. The contract signed by the parties did not require Paepke to make any efforts to sell or market the property, and Paepke did not receive or request a fee for negotiating the options. According to the contract, Davis was to divide the profits from the sale of the land equally with Paepke if the land sold. In the event that the property or a portion of it did not sell, Davis was to deed a one-half interest in the property to Paepke. We find that Paepke's actions concerning the agreement with Davis was that of a business deal rather than the actions of a real estate broker.
2. Did the trial court err in excluding the testimony of Robert Prather regarding real estate law?
¶ 20. Davis notified Paepke on Friday, March 30, 2007, that Robert Prather, Executive Director of the Mississippi Real Estate Commission, might be called as a witness. Trial was scheduled to begin the following Monday, April 2, 2007. The notice designating Prather was filed on the day of trial. During pretrial motions, Paepke objected to Prather being called as a witness. The trial court excluded Prather as a witness because of the late designation. Davis argues that the trial court's exclusion of Prather's testimony severely prejudiced his defense of illegality of the contract based on the Real Estate *138 Brokers License Law and affected his substantial right to a fair trial. Also, Davis argues that Paepke would have suffered no prejudice if Prather were allowed to testify as Paepke's counsel could have interviewed Prather prior to his testimony.
¶ 21. "The standard of review for the admission or exclusion of evidence is abuse of discretion." Univ. of Miss. Med. Ctr. v. Pounders, 970 So.2d 141, 145(¶ 13) (Miss. 2007). In excluding Prather's testimony, the trial court stated:
The Court finds that the addition of Robert Prather as a prospective witness comes too late because he should have been named earlier if the defendant intended to use Mr. Prather. The notice was filed today, the date of trial. It was faxed to the defendant on ... March 30th, if I understand it, and three days before the trial; and the Court's of the opinion that it would be unfair to allow Robert Prather to testify on such short notice; and I will sustain the motion in limine in that regard.
....
This matter was filed, this case was filed in 2000; and the Court's of the opinion that the designation of Mr. Prather would come far too late....
Davis's counsel offered no explanation for the designation of Prather on the first day of trial, which had been set six months earlier. We cannot find that the trial court abused its discretion in granting Paepke's motion to exclude Prather's testimony.
¶ 22. Having found that this issue is without merit, we also find that Davis's argument that the trial court committed reversible error in denying jury instructions D-9 through D-17 is without merit. These instructions were unnecessary as they instructed the jury on real estate licensing law, and no testimony was presented to the jury regarding this issue.
III. DID THE TRIAL COURT ERR IN DISMISSING DAVIS'S COUNTERCLAIM AND DEFENSE OF FRAUDULENT INDUCEMENT?
¶ 23. Davis asserts that Paepke induced him into purchasing the Wheeler property by fraudulently representing that he had a buyer in place who would purchase the north side of the property for $1,000 an acre within thirty days of Davis's purchase. He argues that the trial court erred in refusing to consider parol evidence that Paepke fraudulently induced him into entering the contract and in rejecting his proposed jury instructions on this issue.
¶ 24. "Fraud in the inducement arises when a party to a contract makes a fraudulent misrepresentation, i.e., by asserting information he knows to be untrue, for the purpose of inducing the innocent party to enter into a contract." Lacy v. Morrison, 906 So.2d 126, 129(¶ 6) (Miss.Ct. App.2004). "Parol evidence is admissible to show that the making of a written contract was procured by fraudulent representations. Evidence of this kind does not vary the written contract; it destroys and avoids it." Turner v. Terry, 799 So.2d 25, 33-34(¶ 25) (Miss.2001) (quoting Nash Miss. Valley Motor Co. v. Childress, 156 Miss. 157, 162, 125 So. 708, 709 (1930)).
¶ 25. Davis contends that he would not have purchased the property had he known that Paepke did not have a secured buyer in place to purchase the land for $1,000 an acre. He and another witness, Frank Holliday, testified at trial to hearing Paepke say that he had a buyer in place to purchase the property for $1,000 an acre. Paepke denied that he represented to Davis that a secured buyer was in place. However, Paepke admitted he told Davis that "the Mossy Oak people were paying up to $1,000.00 an acre on *139 some good hunting ground[s]." We cannot find that Davis was fraudulently induced by Paepke's speculation that Mossy Oak was buying property in the area.
¶ 26. In addition, the agreement, which was drafted by Davis's attorney, contains no indication that the parties contemplated that a secured buyer was in place. The language of the agreement makes statements such as: "If the property is sold, I will divide equally with you the profit"; "I will not sell [the property north of Highway 41] for an unreasonably low price and will tell you what the offer is"; and "If I do not sell the property South of Highway 41, I will convey to you or your designee a one-half undivided interest in it provided that all of my investment and expenses have been paid for all the property." If Davis felt the purchase of the property was based on Paepke's statements regarding a potential buyer, it seems that Davis would have instructed his attorney to include that information in the agreement. At one point in the testimony, Davis asserts that he did not read the agreement before signing it. As for that argument, it is well established that "a person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract." Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So.2d 1254, 1257 (Miss. 1991).
¶ 27. If it was truly Davis's understanding that a secured buyer was in place, Davis could have seen from a plain reading of the contract that the terms of the document he signed contradict this understanding. Further, as the trial court noted, Davis was a well-known and respected businessman who negotiated and entered into contracts on a regular basis, and Paepke was not an experienced businessman.
¶ 28. We find that this issue is without merit. In so finding, we also find that Davis's argument regarding the refused jury instructions on fraudulent inducement is without merit.
IV. DID THE TRIAL COURT IMPROPERLY EXCLUDE EVIDENCE OF DAVIS'S COSTS INCURRED DURING THE SALE OF THE LAND?
¶ 29. Davis argues that the trial court committed reversible error in not allowing his testimony concerning expenses he incurred making repairs to and selling the property. The trial court found that evidence of Davis's expenses should be excluded because of Davis's lengthy delay in responding to discovery requests on this issue. The jury was allowed to consider the interest on the loans taken out by Davis to procure the property.
¶ 30. In January 2001, Davis answered the first set of interrogatories and requests for production of documents. Interrogatory numbers nine and ten asked for "a detailed account of each transaction concerning the initial purchase and subsequent sale" of the real property and "a detailed accounting of all monies expended [(]including the initial purchase price plus all expenses and interest) ... for the initial purchase." Davis responded that information relating to documents, persons, and expenses involved in the sale of the property and improvements on the property were "highly privileged and personal," and he would not respond without a confidentiality order.
¶ 31. The case laid dormant for some time, and in January 2005, Paepke's counsel requested Davis to supplement his answer. Davis did not respond. Again on April 1, 2005, July 15, 2005, and January 25, 2006, Paepke's counsel requested that *140 Davis supplement his answer, and Davis did not respond. On March 3, 2006, Paepke's counsel filed a motion to compel discovery. Six days before trial, on March 26, 2007, Davis filed his supplemental response to Paepke's first set of interrogatories and requests for production of documents. Davis answered that he expended $42,500 on the property and was attempting to find receipts on the expenditures and would produce them when available.
¶ 32. The trial court found that disclosing these expenditures six days prior to trial did not give Paepke the opportunity to investigate the accuracy of the alleged expenses and that allowing evidence of the expenses would be unfair. We review the admission or exclusion of evidence for abuse of discretion. Pounders, 970 So.2d at 145(¶ 13). We cannot find that the trial court abused its discretion in excluding testimony regarding Davis's expenses. This litigation had been ongoing for six years prior to trial, and the parties knew of the trial setting six months in advance. No reason was given for the delay except for Davis's assertion that he had just located his bank records. Therefore, we find that this issue is without merit.
V. WAS REVERSAL OR A NEW TRIAL WARRANTED?
¶ 33. In this section of his brief, Davis reasserts all his prior arguments and argues that numerous errors at trial require reversal. Having found no reversible error, we find that this issue is without merit and affirm the judgment in favor of Paepke, including the award of post-judgment interest.
Cross-appeal
¶ 34. Paepke cross-appeals asserting that the trial court should have awarded him prejudgment interest. In its ruling on this motion, the trial court stated, "Since the Court sanctioned the Defendant (Davis) for failure to timely answer discovery request, the Court declines to assess pre-judgment interest against Defendant and therefore overrules Plaintiff's motion for same."
¶ 35. Our standard of review of an award of prejudgment interest is abuse of discretion. Warwick v. Matheney, 603 So.2d 330, 342 (Miss.1992). We cannot find that the trial court abused its discretion in denying prejudgment interest. This case was filed by Paepke on September 26, 2000. Some discovery was taken, but then the case lay dormant for nearly four years. The case was dismissed as stale on January 31, 2005. It was reactivated by Paepke on March 15, 2005. Trial was finally held on April 2, 2007. We find that both parties are to blame for the delays in moving forward with this case. Paepke, as the plaintiff, had a responsibility to prosecute his case and move it forward. Therefore, we affirm the trial court's denial of prejudgment interest.
¶ 36. However, because this case was filed before January 1, 2003, Mississippi Code Annotated section 11-3-23 (repealed) is applicable. Although this section was repealed by the Legislature in 2002, the savings clause provides that causes of action which were filed in a trial court before January 1, 2003, are still subject to section 11-3-23. Miss.Code. Ann. § 11-3-23 (Rev.2002); AirTran, Inc. v. Byrd, 987 So.2d 905, 908(¶ 8) (Miss.2007). Prior to being repealed, section 11-3-23 provided:
In case the judgment or decree of the court below be affirmed, or the appellant fails to prosecute his appeal to effect, the Supreme Court shall render judgment against the appellant for damages, at the rate of fifteen percent (15%), as follows: If the judgment or decree affirmed be for a sum of money, the damages shall be upon such sum....
*141 Since the judgment of the court below was affirmed and this case was filed before January 1, 2003, we render judgment against Davis for damages in the amount of fifteen percent of the $72,954.30 judgment against him.
¶ 37. THE JUDGMENT OF THE CHICKASAW COUNTY CIRCUIT COURT IS AFFIRMED ON DIRECT AND CROSS-APPEAL. THE APPELLANT IS ASSESSED DAMAGES IN THE AMOUNT OF FIFTEEN PERCENT ON THE JUDGMENT OF $72,954.30. ALL COSTS OF THIS APPEAL ARE ASSESSED EQUALLY BETWEEN THE APPELLANT/CROSS-APPELLEE AND APPELLEE/CROSS-APPELLANT.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.
NOTES
[1] Davis testified that his attorney did not draft the document, but rather Paepke had it prepared. However, Davis's former attorney, the Honorable Kenneth Burns, admitted through deposition testimony that he drafted the document. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597303/ | 638 So.2d 1383 (1993)
Phyllis OWES
v.
STATE.
CR 92-481.
Court of Criminal Appeals of Alabama.
July 9, 1993.
*1384 C. Robert Montgomery, Chatom, for appellant.
James H. Evans, Atty. Gen., and Joseph Marston III, Asst. Atty. Gen., for appellee.
BOWEN, Presiding Judge.
Phyllis Owes, the appellant, was convicted for the unlawful distribution of cocaine and was sentenced to 15 years' imprisonment. That sentence included enhancements under both the Habitual Felony Offender Act and the schoolyard enhancement statute, Ala. Code 1975, § 13A-12-250. She raises four issues on this direct appeal of that conviction.
I.
The appellant alleges racial discrimination in the prosecutor's use of his peremptory challenges of the jury venire.
In this regard, the record shows the following:
"THE COURT: All right. For the record, State satisfied with the makeup of the jury racially and otherwise?
"MR. KEAHEY [district attorney]: Judge, I'm satisfied with the makeup. I don't know if I'm satisfied with the way Mr. Lee [defense counsel] went about it.
"THE COURT: Are you making an objection, you need to make it now.
"MR. KEAHEY: Judge, I object. It appears that the attorney for the defendant has used his strikes in a manner which is racially motivated. He used all of his strikes to strike members from the venire, appears no other motive for him to have struck many of these. I know some of the reasons for a few. Based on voir dire, it's plain. There are some of these I can't fathom any reason on the record as to why he struck these individuals as to other than they are white.
"THE COURT: Mr. Lee, do you have defendant satisfied with the racial makeup of the jury?
"MR. LEE: No, sir, your Honor, the State struck, the first three were black with no apparent reason. The fourth strike, Number 22, is the first white strike he had. Then he had no further strikes of any white people until Number 24, which was the second alternate, assuring that the jury, as far as he was concerned, all other factors being equal, he struck all the blacks he could with the exception of one.
"My client is black, and I have had to use some of my strikes I would have used otherwise to counteract hi[s] striking all the blacks off the jury. He struck nine black people. My client being black, I believe we should have a jury of her peers as near as possible.
"I believe his strikes were, without other explanation, racially motivated. I don't believe the voir dire would have anything to do with his strikes, the questions on voir dire.
"(Pause)
"THE COURT: Both the State of Alabama and the defendant have objected to the makeup of the jury based on the strike pattern of the representative [of the] other side. Although the Court concedes that the strike pattern is rather unusual, the results of the strike is a jury, petit jury, twelve person jury of 41 percentile, which is the same percentile as the strike list of the 34 jurors from which we started.
"Since the percentiles are the same, and I believe that the percent is very close to the population of Clarke County, Clarke County's population, I believe, is 42% black. So, even though the way it was arrived at is peculiar, the Court finds that Batson does not apply in this particular circumstance. Therefore, I will deny the State's challenge and the defendant's challenge, and we'll seat this jury." R. 27-29.
In this case, because the trial court found that "the strike pattern is rather unusual" and that "the way it was arrived at is peculiar," we cannot equate that court's ruling that "Batson does not apply" as a finding that both the prosecutor and defense counsel failed to establish a prima facie case of racial discrimination in the selection of the jury. The trial court has a "duty ... to determine, first, whether the defendant [or the state] has made a requisite showing of the racially discriminatory use of peremptory challenges." Ex parte Branch, 526 So.2d 609, *1385 621 (Ala.1987) (emphasis omitted). See also Lemley v. State, 599 So.2d 64, 70 (Ala.Cr. App.1992). Under Ex parte Williams, 571 So.2d 987, 989 (Ala.1990), an appellate court may not use a procedural basis to justify an alleged substantive error.
Batson applies equally to strikes exercised by the prosecutor and by defense counsel. Georgia v. McCollum, ___ U.S. ___, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992); Ex parte Pilot, 607 So.2d 311 (Ala.1992); Lemley v. State, 599 So.2d 64, 66 (Ala.Cr. App.1992). When a veniremember is excluded on the basis of race, "the harm is the same," "[r]egardless of who invokes the discriminatory challenge." McCollum, ___ U.S. at ___, 112 S.Ct. at 2353.
In Williams v. State, 634 So.2d 1034 (Ala. Cr.App.1993), this Court held that the principles of Batson apply to the striking of white veniremembers by the prosecution. The Alabama Supreme Court has "assumed," for purposes of responding to argument, that the safeguards of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and Ex parte Branch, 526 So.2d 609 (Ala.1987), apply to the striking of white venirepersons. White Consolidated Indus., Inc. v. American Liberty Ins. Co., 617 So.2d 657, 659 (Ala. 1993).
"When the evidence shows only that blacks were struck and that a greater percentage of blacks sat on the jury than sat on the lawfully established venire, an inference of discrimination has not been created." Harrell v. State, 571 So.2d 1270, 1271 (Ala.1990), cert. denied, 499 U.S. 984, 111 S.Ct. 1641, 113 L.Ed.2d 736 (1991). See also Ex parte McWilliams, [Ms. 1911242, January 29, 1993] ___ So.2d ___ (Ala.1993); Flowers v. State, 608 So.2d 764, 765 (Ala.Cr.App.1992); Jones v. State, 603 So.2d 419, 420 (Ala.Cr.App. 1992).
However, statistical evidence may be used both to establish a prima facie case of discrimination and to show the absence of a discriminatory intent. Ex parte Bird, 594 So.2d 676, 680 (Ala.1991); Ex parte Yelder, 630 So.2d 107 (Ala.1992). In Ex parte Williams, 571 So.2d 987, 990 (Ala.1990), the Alabama Supreme Court held that the defendant's "evidence that the State struck four of the five black venire members [was] sufficient evidence of discrimination to establish her prima facie case for discrimination."
In this case, it appears that the trial court employed a "result-oriented" approach like the one condemned in Ex parte Lynn, 543 So.2d 709, 712 (Ala.1988), cert. denied, 493 U.S. 945, 110 S.Ct. 351, 107 L.Ed.2d 338 (1989): "[W]e decline to articulate the mechanical result-oriented approach urged by [the appellant], for such a procedure is not contemplated by the holding in Batson, supra." "[T]he removal of even one juror for a discriminatory reason is a violation of the equal protection rights of both the excluded juror and the minority defendant." Harrell v. State, 555 So.2d 263, 267 (Ala.1989).
The Alabama Supreme Court and this Court have repeatedly set out the proper procedure to follow where allegations of racial discrimination in the selection of a trial jury are made. Among the more recent cases see Huntley v. State, 627 So.2d 1013 (Ala.1992); Millette v. O'Neal Steel, Inc., 613 So.2d 1225, 1229 (Ala.1992).
The cause is remanded with directions that the trial court conduct an evidentiary hearing and make the required determination of whether either party established a case of prima facie discrimination in the selection of the jury by the other party. If the trial court determines that defense counsel established a prima facie case of discrimination by the prosecutor, the court shall require the prosecutor to provide race neutral explanations for his strikes. If the trial court determines that the prosecutor established a prima facie case of discrimination by defense counsel, the trial court need not require defense counsel to explain his strikes. Any curative action with regard to a criminal defendant's use of peremptory challenges in a racially discriminatory manner must be taken at trial. A party may not profit on appeal from his own misconduct. Phillips v. State, 443 So.2d 1328, 1331 (Ala.Cr.app.1983). The transcript of the evidentiary hearing and the written findings and conclusions of the trial court shall be filed in this Court within 60 days from the date of this opinion.
*1386 II.
The appellant argues that the evidence is insufficient to support her conviction for distribution.
The State's evidence shows that on May 15, 1992, Ronald Terrance Davis, working as an undercover informant for the police, purchased crack cocaine in the front living room of a house located at 260 Byrd Road in Thomasville, Alabama. Present at the sale were Deloris Washington, Sally Lanier, and the appellant.
Davis told Deloris Washington that he wanted to buy $50 worth of crack cocaine, and during the conversation concerning the sale, the appellant stated that "she had $23 on it." R. 35. Davis testified that his "agreement with [the appellant was that], me and her was going to go partially half on a $50 piece of crack cocaine." R. 36. "What we was doing, [was] putting together to buy cocaine by her [the appellant] knowing Deloris." R. 53. Davis testified that the appellant was not selling.
Davis put his $50 on the table. Deloris Washington picked up the money and put down the piece of cocaine. The appellant then "picked up [the cocaine], spinned around, broke off it," and gave Davis part. R. 36.
The indictment charged that the appellant
"or her accomplices Sally Lanier or Deloris Washington ... did on to-wit: May 15, 1992, while at or near 260 Byrd Road in Thomasville, Alabama, unlawfully sell, furnish, give away, manufacture, deliver or distribute, to-wit: Cocaine, a controlled substance to Ronald Davis contrary to and in violation of Section 13A-12-211 of Code of Alabama ...." C.R. 4.
Section 13A-12-211, Code of Alabama 1975, states that "[a] person commits the crime of unlawful distribution of controlled substances if ... he sells, furnishes, gives away, manufactures, delivers or distributes a controlled substance." "[I]n a prosecution for [complicity in] the sale of illegal drugs, the `state is required to produce evidence which affords a reasonable inference that the defendant participated in some way with the seller in making the sale, and such linkage may be shown by circumstantial evidence.'" Mathis v. State, 594 So.2d 690, 692 (Ala.Cr. App.) (quoting Snider v. State, 406 So.2d 1008, 1012 (Ala.Cr.App.), cert. denied, 406 So.2d 1015 (Ala.1981)) (emphasis added by the court in Mathis), remanded on other grounds, 594 So.2d 692 (Ala.1991).
"Under this definition of `sale,' the participation of the defendant in, or his or her criminal linkage with, the sale is the basis of criminal liability, and not the actual act of the defendant in physically transferring the controlled substance to the buyer."
Martin v. Alabama, 730 F.2d 721, 724 (11th Cir.1984). See also Greenwald v. State, 579 So.2d 38, 39 (Ala.Cr.App.1991).
Aside from the fact that the appellant was present in the seller's house at the time of the drug transaction at issue here, there was no evidence that the appellant participated in the sale or had a criminal linkage with the seller in making the sale. Compare Mathis v. State, 594 So.2d 690 (when accused introduced buyer to seller, counted out buyer's money and presented it to seller, and agreed buyer could contact seller through accused in the future, evidence was sufficient to find accused guilty of distribution); Jones v. State, 593 So.2d 155 (Ala.Cr.App.1991) (when accused procured buyer for the sale, was present when his companion handed buyer cocaine in exchange for money, and attempted to flee and to dispose of other cocaine in his possession when he learned buyer was undercover officer, evidence was sufficient to find accused guilty as an accomplice to the sale); Harrington v. State, 515 So.2d 53 (Ala. Cr.App.1986) (when accused made a telephone call in response to buyer's request for marihuana, drove to and entered a residence with buyer's money, and emerged with bag of marihuana that he presented to buyer, evidence was sufficient to find accused guilty of furnishing marihuana).
Here the appellant participated in the transaction as a buyer under the terms agreed upon: that she would "split" the cocaine purchased with Davis. Because the appellant was a buyer of the cocaine, she could not be an accomplice of the seller of the cocaine. Section 13A-2-24, Code of Alabama 1975, states that
*1387 "[u]nless otherwise provided by the statute defining the offense, a person shall not be legally accountable for behavior of another constituting a criminal offense if ... [t]he offense is so defined that his conduct is inevitably incidental to its commission."
In Tyler v. State, 587 So.2d 1238 (Ala.Cr. App.1991), this Court discussed the fact that § 13A-2-24 ordinarily prevents the buyer in a drug transaction from being held to be an accomplice of the seller. "The general rule in Alabama is that the purchaser of an illicit substance is not an accomplice of the seller because the purchaser is guilty of an offense independent from the sale." Tyler v. State, 587 So.2d at 1242. See also 2 W. LaFave & A. Scott, Substantive Criminal Law § 6.8(e) at 166 & n. 96 (1986) ("a purchaser is not a party to the crime of illegal sale") (citing United States v. Farrar, 281 U.S. 624, 50 S.Ct. 425, 74 L.Ed. 1078 (1930)).
Although the appellant could not be guilty as an accomplice of the seller, her conviction did not depend solely upon a theory of complicity. The indictment charged that "the appellant or her accomplices ... did ... unlawfully sell, furnish, give away, manufacture, deliver or distribute ... [c]ocaine." Thus, if the State presented evidence that the appellant herself (not as an accomplice to another person) did "unlawfully sell, furnish, give away, manufacture, deliver or distribute" cocaine, then it proved the alternate charge laid in the indictment.
Citing McKissick v. State, 522 So.2d 3 (Ala.Cr.App.1987), the attorney general argues that the appellant violated § 13A-12-211, when she picked up the rock of cocaine, broke off a piece, and handed the rest to Davis: that is, by physically transferring a portion of the cocaine to Davis, the appellant "`"furnish[ed], g[a]ve away, deliver[ed], or distribut[ed]" a controlled substance. We agree.
In McKissick, an undercover officer approached the accused and asked where he could buy some marihuana. The accused "replied that he knew someone who was doing business," walked to a nearby automobile, obtained a plastic bag from the individual in the driver's seat, and handed the bag to the undercover officer. 522 So.2d at 3. The officer handed $10 to the driver of the automobile and $1 to the accused for "setting up the deal." Id. Responding to the accused's argument that he could not be convicted as a seller because he was merely acting as a procuring agent for the buyer, see Hill v. State, 348 So.2d 848 (Ala.Cr.App.), cert. denied, 348 So.2d 857 (Ala.1977), this Court held that the accused's "transfer of possession" from the seller to the buyer constituted evidence of "furnishing" under an indictment charging that the accused "did sell, furnish, or give away" the controlled substance. 522 So.2d at 4.
Here, the reality of the transaction suggests that the appellant's transfer of possession was from herself as a buyer to Davis as a co-buyer. However, § 13A-12-211 makes no distinction among transferors and transferees. "`[F]urnishes' means to provide or supply and connotes a transfer of possession." Walker v. State, 428 So.2d 139, 141 (Ala.Cr.App.1982). "`Furnish' means to supply by any means, by sale or otherwise, and a sale need not be shown." Greenwald v. State, 579 So.2d at 39. Whether the appellant's handing a portion of the controlled substance to Davis constitutes furnishing, giving away, delivering, or distributing, it is clear that the appellant violated § 13A-12-211 by providing, supplying, or transferring possession of part of the cocaine to Davis.
The appellant committed two offenses. By retaining "her" portion of the cocaine pursuant to the terms of the buy-agreement with Davis, the appellant violated § 13A-12-212 (unlawful possession or receipt of controlled substances). By breaking off and handing to Davis "his" portion of the cocaine, the appellant violated § 13A-12-211 (unlawful distribution of controlled substances). The State chose to prosecute the appellant for the more serious of the two crimes, the Class B felony distribution offense, rather than the Class C felony possession offense, and the State presented sufficient evidence to establish her guilt thereof.
III.
The appellant contends that she was convicted on the uncorroborated testimony of an accomplice, the undercover informant Ronald *1388 Davis. Davis, however, was not the appellant's accomplice. In Walker v. State, supra, this Court held the following:
"The defendant sold marijuana to an undercover agent. The testimony of the undercover agent did not require corroboration under Alabama Code Section 12-21-222 (1975). `The undercover agent in this case was not an accomplice of the defendant: Brown v. State, 44 Ala.App. 135, 203 So.2d 700 (1967). He could not be indicted and convicted for the crime, either as principal or accessory. Miller v. State, 290 Ala. 248, 275 So.2d 675 (1973).' Gilliland v. State, 291 Ala. 89, 93, 277 So.2d 901 (1973). See also Napier v. State, 344 So.2d 1235, 1237 (Ala.Cr.App.), cert. denied, 344 So.2d 1239 (Ala.1977)."
Walker, 428 So.2d at 141. See also Ala.Code 1975, § 13A-3-22:
"Unless inconsistent with other provisions of this article, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by law or by a judicial decree or is performed by a public servant in the reasonable exercise of his official powers, duties, or functions."
While Davis was an informant, rather than a police officer, it is clear that he was acting under the direction of law enforcement officer.
IV.
The appellant's final claim, that her trial counsel was ineffective, is raised for the first time on appeal. It is well settled that claims of ineffectiveness of counsel cannot be raised for the first time on appeal. Ex parte Jackson, 598 So.2d 895 (Ala.1992); Ex parte McLeod, 627 So.2d 1065 (Ala.1993).
The judgment of the circuit court is remanded for further proceedings as ordered in Part I of this opinion.
REMANDED WITH DIRECTIONS.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597316/ | 384 N.W.2d 677 (1986)
STATE of South Dakota, Plaintiff and Appellee,
v.
Larry Dale GOODMAN, Defendant and Appellant.
No. 14895.
Supreme Court of South Dakota.
Argued January 13, 1986.
Decided March 26, 1986.
Rehearing Denied May 1, 1986.
*678 Thomas Harmon, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
Steven K. Rabuck, of Andera, Rabuck & Smith, Chamberlain, for defendant and appellant.
MILLER, Circuit Judge.
Appellant Larry D. Goodman was convicted of the crime of cruelly punishing a minor, SDCL 26-10-1, and was sentenced to three years in the state penitentiary. We affirm.
FACTS
Appellant occupied a home in Chamberlain, South Dakota, with his girlfriend, Denise Gayken, his eleven-year-old son, Guthrie, and Ms. Gayken's two minor children.
On the night of the offense appellant had been drinking. He had a heated argument with Ms. Gayken about his drinking and statements Guthrie had made expressing a desire to live with his natural mother. Appellant became enraged with Guthrie and punished the child by punching him in the face, knocking him to the floor, and kicking him. Appellant also threatened Guthrie and Ms. Gayken with a homemade knife.
Appellant ordered Guthrie out of the home. Ms. Gayken took all of the minor children to the home of appellant's mother in Chamberlain. Ms. Gayken took a photograph of Guthrie to show appellant the injuries he had caused.
Guthrie began living with his maternal grandmother in Chamberlain. About a month later his natural mother learned of the alleged abuse and reported it to the Brule County Sheriff, who began the investigation which led to appellant's indictment, arrest, and conviction.
In the meantime, appellant and Ms. Gayken reconciled. Immediately following appellant's indictment and arrest law enforcement authorities interviewed Ms. Gayken and asked her about the photograph taken of Guthrie on the night of the beating. A law enforcement officer drove her to the home she occupied with appellant. She entered it alone and retrieved the negative of the photograph of Guthrie. (Apparently the first photograph which had been made from the negative was in the possession of appellant's mother.)
DECISION
I.
WHETHER AN INDICTMENT SHOULD BE DISMISSED WHEN IT WAS RETURNED IN OPEN COURT BY THE FOREMAN OF THE GRAND JURY, OUT OF THE PRESENCE OF THE OTHER GRAND JURORS? WE HOLD THAT IT NEED NOT BE DISMISSED.
On August 13, 1984, a Brule County grand jury made an indictment, in proper form, charging appellant with "child *679 abuse" (SDCL 26-10-1). The indictment was endorsed "A True Bill" and, on its face, indicated that it had been made with the concurrence of at least six grand jurors. The indictment was presented in open court to Circuit Judge Boyd L. McMurchie by the foreman of the grand jury. The other grand jurors were not present and their absence is not explained. The state's attorney, deputy state's attorney, and appellant's counsel, however, were present.
Prior to trial, appellant filed a motion to dismiss claiming that the indictment had not been properly returned by the grand jury because "[a]n indictment shall be returned by the grand jury to a circuit judge in open court, endorsed as a true bill." SDCL 23A-5-18. Appellant argues that this language clearly requires an indictment to be presented in open court by the entire grand jury, not merely the foreman. Citing Honomichl v. State, 333 N.W.2d 797 (S.D.1983), appellant argues that the circuit court did not acquire subject matter jurisdiction because of this irregularity in presenting the indictment. In Honomichl, supra, we held that a court does not acquire subject matter jurisdiction unless there is a "formal and sufficient indictment or information." 333 N.W.2d at 798.
Appellant, however, has not raised the question of sufficiency of the indictment. Rather, he focuses on the claimed irregularities and the formalities involved in presenting the indictment in open court. Appellant's jurisdictional argument is based upon his construction of the "returned by the grand jury" language in SDCL 23A-5-18. This court has never addressed this issue. It does appear that there is a split of authority. 41 Am.Jur.2d Indictments and Information § 22. Some states have statutes which give specific guidance.
It is well established that this court's main objective in construing statutes is to ascertain and give effect to the intention of the legislature. See SDCL 2-14-12; Western Surety Co. v. Mydland, 85 S.D. 172, 179 N.W.2d 3 (1970); State v. Dove, 75 S.D. 460, 67 N.W.2d 917 (1955); State v. Douglas, 70 S.D. 203, 16 N.W.2d 489 (1944). Although we discourage the practice utilized here,[1] we conclude that the plain language of the statute does not specifically require that all members of the grand jury be present at the time its foreman presents indictments. Therefore, the trial court correctly refused to dismiss the indictment.
In cases where grand jury members are not present with their foreman at the time of the proceedings before a circuit judge, the court has the greater burden of examining the foreman to be assured that the formalities were complied with. The court must ascertain and place on record the number of grand jurors participating in the inquiry, whether a sufficient number concurred in each indictment, and whether the names of the witnesses examined were properly endorsed on the indictment. Judge McMurchie met this requirement.
II.
WHETHER THE INDICTMENT SHOULD BE DISMISSED WHEN THE CRIMINAL OFFENSE ALLEGED IS SPECIFICALLY EXCLUDED FROM THE APPLICATION OF THE STATUTORY RULES OF CRIMINAL PROCEDURE? WE HOLD THAT IT NEED NOT BE DISMISSED.
SDCL ch. 26-10 is entitled "Offenses By and Against Minors." Appellant was charged and convicted of violating SDCL 26-10-1. SDCL Title 23A establishes the South Dakota rules of procedure in criminal cases. SDCL 23A-1-1 provides: "This title shall govern the procedure to be used in the courts of this state in all criminal proceedings and in all proceedings for violations of ordinances and bylaws of *680 units of local government of this state."[2] SDCL 23A-1-2, relating to the purposes and construction of the title, states: "This title is intended to provide for the just determination of every criminal proceeding. It shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay."
Irrespective of the language set forth above, the legislature specifically excluded SDCL ch. 26-10 from the application of SDCL Title 23A. SDCL 23A-45-7(11).[3] In his motion to dismiss, appellant argued that the trial court had no subject matter jurisdiction because of SDCL 23A-45-7(11). The trial court held that by virtue of SDCL 23A-45-7(11), SDCL Title 23A did not apply to a prosecution for a violation of SDCL ch. 26-10. The court concluded that SDCL 23A-45-13 was applicable. That statute reads: "If no procedure is specifically prescribed by statute or rule, a court may proceed in any lawful manner not inconsistent with this title or with any other applicable statute."
The trial court recognized the necessity to protect the constitutional rights of defendant. To properly guarantee those rights, and to provide an effective manner to try the case, the trial court concluded that the otherwise excluded provisions of SDCL Title 23A should be utilized and applied in this case pursuant to SDCL 23A-45-13.
Appellant correctly cites us to Honomichl, supra, for the proposition that absent a formal and sufficient indictment or information, courts are without subject matter jurisdiction for a crime. However, this case must be distinguished from Honomichl because neither an information nor an indictment had been filed in that case. Honomichl involved a prosecution for DWI under a complaint.
The South Dakota Constitution, Article VI, Section 10 states that no person may be prosecuted for a criminal offense "unless on the presentment or indictment of a grand jury, or information of the public prosecutor." The Constitution allows the legislature to adopt and implement procedural rules in criminal prosecutions. Therefore, absent a showing of a violation of his constitutional due process rights, any claimed irregularities raised by appellant relate only to possible statutory infringements.
The legislature, in enacting SDCL 26-10-1, has denominated cruel conduct against children as a felony. The underlying conduct, allegedly committed in violation of the substantive law establishes subject matter jurisdiction, not the procedural law. Appellant was charged under a formal and sufficient indictment. The trial court had subject matter jurisdiction to proceed and properly complied with SDCL 23A-45-13 by adopting procedural rules to protect appellant's rights and to provide an effective manner to try the case. Additionally, appellant did not show or establish that any of his due process rights were violated or that he has been in any way prejudiced by the procedures followed.
III.
WHETHER THE TRIAL COURT ERRED IN REFUSING TO SUPPRESS THE PHOTOGRAPH NEGATIVE TAKEN FROM THE HOME BY APPELLANT'S GIRLFRIEND? WE HOLD THAT THE TRIAL COURT PROPERLY REFUSED TO SUPPRESS.
Prior to trial appellant moved to suppress a photograph made from the negative Ms. Gayken furnished to law enforcement. *681 Appellant contended that it was the product of an illegal search and seizure, that the search was warrantless, and that Ms. Gayken's consent was obtained through coercion. The trial court specifically found that there was no search and seizure and held that appellant lacked standing to challenge the search because he did not have a legitimate expectation of privacy.
We agree that there was no search and seizure. State v. Cundy, 86 S.D. 766, 201 N.W.2d 236 (1972), cert. denied, 412 U.S. 928, 93 S.Ct. 2751, 37 L.Ed.2d 155 (1973); United States v. Coleman, 628 F.2d 961 (6th Cir.1980). This is a case where a co-tenant undertook to retrieve her property from her domicile and give it to the police. Whether she was coerced is irrelevant. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). Rawlings v. Kentucky, 448 U.S. 98, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980). The trial court properly refused to suppress the evidence.
IV.
WHETHER THE TRIAL COURT ERRED IN REFUSING TO INSTRUCT THE JURY ON LESSER OFFENSE OF SIMPLE ASSAULT? WE HOLD THAT THE TRIAL COURT DID NOT ERR.
It is settled law that if requested a trial court must instruct the jury upon lesser included offenses to the offense charged if the evidence warrants a conviction upon the lesser included offense. In State v. Waff, 373 N.W.2d 18 (S.D.1985), we set forth the test that must be applied to determine whether an offense is necessarily included within a greater offense. The test has two parts, a legal test and a factual test. The three conditions of the legal test are:
[F]irst, the elements of the included offense must be fewer in number than the elements of the greater charged offense. Second, the penalty for the included offense must be less than the greater charged offense in terms of the maximum punishment attached to each offense. Third, ... the two offenses must contain common elements so that the lesser included offense must be such that the greater offense cannot be committed without also committing the lesser.
Waff, supra, 373 N.W.2d at 22, quoting State v. Kafka, 264 N.W.2d 702, 705 (S.D. 1978).
The factual test is:
Where a request has been made to charge the jury on a lesser-included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error. (citations omitted) There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact, committed.
Waff, supra, 373 N.W.2d at 22, quoting People v. Karasek, 63 Mich.App. 706, 234 N.W.2d 761 (1975).
Appellant was charged pursuant to SDCL 26-10-1: "Any person who abuses, exposes, tortures, torments or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony."
Under SDCL 22-18-1 a person is guilty of simple assault if he:
(1) Attempts to cause bodily injury to another, other than a law enforcement officer engaged in the performance of his duties, and has the actual ability to cause the injury;
(2) Recklessly causes bodily injury to another;
(3) Negligently causes bodily injury to another with a dangerous weapon;
(4) Attempts by physical menace to put another in fear of imminent serious bodily harm, with or without the actual ability to seriously harm the other person; or
(5) Intentionally causes bodily injury to another which does not result in serious bodily injury[.]
*682 SDCL 22-18-1 must be read in conjunction with SDCL 22-18-5:
To use or attempt or offer to use force or violence upon or toward the person of another is not unlawful when committed by a parent or the authorized agent of any parent, or by any guardian, teacher or other school official, in the exercise of a lawful authority to restrain or correct his child or ward; provided restraint or correction has been rendered necessary by the misconduct of such child or ward, or by his refusal to obey the lawful command of such parent, or authorized agent, guardian, teacher or other school official, and the force or violence used is reasonable in manner and moderate in degree.
Applying the tests of Waff, supra, we conclude that simple assault is not a lesser included offense of child abuse under SDCL 26-10-1. The offenses are complete, separate and distinct crimes. This does not mean, however, that a parent, under appropriate facts, may not be charged with committing a simple assault upon his child.
Affirmed.
FOSHEIM, C.J., HENDERSON, J., HERTZ, Circuit Judge, acting as a Supreme Court Justice, and HEEGE, Circuit Judge, concur.
MILLER, Circuit Judge, for MORGAN, J., disqualified.
HEEGE, Circuit Judge, for WUEST, J., disqualified.
NOTES
[1] Judge McMurchie did admonish the state's attorney that in future cases he would prefer that the entire grand jury be present at the time the indictments are presented.
[2] See also SDCL 23A-45-2, which reads: "This title applies to all criminal proceedings and to all proceedings for the violation of an ordinance, bylaw or police regulation of a unit of local government in this state before the circuit courts and the magistrate courts except in cases of those minor offenses triable under § 23A-4-2."
[3] The 1985 legislature repealed subsection (11) of SDCL 23A-45-7 in a lengthy act entitled "An Act to correct minor errors and internal inconsistencies and to delete obsolete provisions in the South Dakota Codified Laws." 1985 S.D. Sess.Laws, ch. 15, § 35. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597573/ | 818 So.2d 372 (2002)
Joe Boyd GIBSON a/k/a Undre Gibson, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2001-CP-01413-COA.
Court of Appeals of Mississippi.
May 14, 2002.
*373 Pro Se, attorney for appellant.
Office of the Attorney General, by W. Glenn Watts, attorney for appellee.
Before KING, P.J., BRIDGES, and CHANDLER, JJ.
CHANDLER, J., for the court.
¶ 1. Joe Boyd Gibson appeals from the denial of his request for post-conviction relief in the Winston County Circuit Court. Aggrieved, Gibson raises the following issues of error: (1) whether the indictment was defective; (2) whether he received ineffective assistance of counsel; and (3) whether the sentence violated the Fifth Amendment protection against double jeopardy. Finding no error, we affirm.
FACTS
¶ 2. On March, 30, 2000, the Winston County grand jury indicted Joe Boyd Gibson on one count of possessing marihuana within the Choctaw County Correctional Facility (correctional facility) and one count of conspiracy to possess marihuana within the correctional facility. Gibson, facing a life sentence as a habitual offender under section 99-19-83 of the Mississippi Code, pleaded guilty to both offenses. After hearing Gibson's guilty plea, the trial court accepted Gibson's plea as having been voluntarily, knowingly and intelligently made. The court, pursuant to the State's recommendations, then sentenced Gibson to seven years on the possession charge and three years on the conspiracy charge, sentences to run consecutively.
STANDARD OF REVIEW
¶ 3. In reviewing the trial court's denial of a petition for post-conviction relief, this Court will not disturb the factual findings of the trial court unless they are determined to be clearly erroneous. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999). "Put otherwise, we will not vacate such a finding unless, although there is evidence to support it, we are on the entire evidence left with the definite and firm conviction that a mistake has been made." Merritt v. State, 517 So.2d 517, 520 (Miss.1987).
LAW AND ANALYSIS
I. WAS THE INDICTMENT BROUGHT AGAINST GIBSON DEFECTIVE?
¶ 4. Gibson first argues that the indictment brought against him was invalid. *374 Specifically, Gibson contends that the indictment failed to have a case number listed on its face when it was handed down from the grand jury; therefore, the sentences on both charges must be vacated.
¶ 5. The Mississippi Supreme Court has stated that "[o]utside the constitutional realm, the law is settled that with only two exceptions, the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment." Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). See also Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990); Buford v. State, 756 So.2d 815, 817 (¶ 4) (Miss.Ct.App.2000). As this Court has noted, a plea of guilt waives all defects in the indictment that are non-substantive. Buford, 756 So.2d at 817 (¶ 4). Any defect within the indictment that could be cured by amendment will be considered non-substantive. Id. A guilty plea does not however waive substantive defects, including: (1) subject matter jurisdiction and (2) the failure to charge the defendant with a criminal offense. Kincaid v. State, 711 So.2d 873, 877 (¶ 20) (Miss.1998); Black v. State, 806 So.2d 1162, 1164 (¶ 5) (Miss.Ct. App.2002).
¶ 6. Gibson fails to show how the absence of a cause number constitutes a substantive defect in the indictment. As the State correctly points out, Rule 7.06 of the Uniform Rules of Circuit and County Court Practice does not include any statement about the necessity for a cause number to appear on the face of the indictment. A close examination of the indictment against Gibson reveals that all seven factors listed under Rule 7.06 were satisfied. See Holloman v. State, 656 So.2d 1134, 1139 (Miss.1995) (noting that indictment is sufficient if it meets these requirements). Therefore, the failure to include a cause number on the indictment was a non-substantive error and subsequently waived by Gibson's plea of guilt. Additionally, we note that it is disputed as to whether the cause number was actually missing from the face of the indictment. As the trial court stated in denying Gibson's post-conviction relief argument pertaining to the indictment, "located in the court file is an indictment that clearly has Cause Number 2000-33-CR written on the face...." Either way, this argument is wholly without merit.
II. DID GIBSON RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?
¶ 7. Gibson next claims that his attorney's failure to object to the indictment amounted to ineffective assistance of counsel. Gibson asserts that counsel should have raised the issue of the indictment's invalidity when it became clear that the indictment lacked a cause number. However, as stated, the failure to include a case number on the face of the indictment was a non-substantive error waived when Gibson entered a plea of guilt to both charges. Moreover, regardless of Gibson's plea, counsel's failure to raise this error would not necessarily have entitled Gibson to relief. As this Court has stated on many occasions, "[a] successful claim of ineffective assistance of counsel must include evidence that, but for the attorney's deficient performance, the outcome of the proceeding was likely to have been different." Buford, 756 So.2d at 817 (¶ 7) (citing Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). This Court looks at the totality of the circumstances when determining if the defendant was prejudiced by counsel's representation. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990).
¶ 8. Gibson's claim for ineffective assistance of counsel is based on the erroneous assumption that the indictment's *375 failure to include a case number was a substantive mistake; therefore, his attorney's failure to raise this error and allow Gibson to plead guilty prejudiced his defense. As previously discussed, the mistake was not one of substance. Non-substantive errors contained in the indictment, subsequently waived by a guilty plea, are not subject to attack on grounds of ineffective assistance of counsel. See Buford, 756 So.2d at 817 (¶ 8). This is because non-substantive defects can simply be corrected by amending the indictment. Black v. State, 806 So.2d 1162, 1165 (¶ 7) (Miss.Ct.App.2002). Therefore, assuming the indictment was actually defective, we find that there can be little doubt that the State would have filed the appropriate motion to have it amended, leaving Gibson in the same position he was in at the time he pleaded guilty. As such, Gibson cannot show that his attorney's assistance resulted in prejudice. This assignment of error is without merit.
III. WAS GIBSON SUBJECTED TO DOUBLE JEOPARDY?
¶ 9. Gibson next argues that his Fifth Amendment right to be protected against double jeopardy was violated. According to Gibson, the charge of possession of marihuana within a correctional facility merged with the charge of conspiracy to possess a controlled substance.
¶ 10. The Mississippi Supreme Court has stated that the Fifth Amendment protection against double jeopardy encompasses three separate sub-protections: (1) protection against a second prosecution for the same offense following an acquittal; (2) protection against a second prosecution for the same offense following a conviction; and (3) protection against multiple punishments for the same criminal offense. Thomas v. State, 711 So.2d 867, 870 (¶ 14) (Miss.1998). Gibson's appeal centers around the third enumerated protection, leading this Court to turn once again to the seminal case of Blockburger v. U.S., 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).
¶ 11. Blockburger intervenes any time "an individual is charged with two offenses, and all the elements of one are included within and are a part of a second greater offense...." Stewart v. State, 662 So.2d 552, 561 (Miss.1995). The court concluded in Blockburger that "the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not." Blockburger, 284 U.S. at 304, 52 S.Ct. 180, 76 L.Ed. 306. See also Thomas, 711 So.2d at 870 (¶ 15); Meeks v. State, 604 So.2d 748, 751 (Miss.1992).
¶ 12. Since double jeopardy bars prosecuting a person for the same crime twice, and because conspiracy and transfer of a controlled substance have been shown to be separate crimes, we conclude that Gibson does not have a valid double jeopardy claim. See Davis v. State, 485 So.2d 1055, 1057 (Miss.1986) (stating that "[c]onspiracy is a complete offense in itself, distinct from the commission of the crime contemplated by the conspiracy and does not become merged with that crime"). See also Thomas, 711 So.2d at 871 (¶ 16); Stewart, 662 So.2d at 561; Norman v. State, 381 So.2d 1024, 1028 (Miss.1980). In this case, the conspiracy crime was complete at the moment Gibson planned the necessary steps with the other conspirator to unlawfully transport marihuana into the correctional facility. See Delarosa v. State, 800 So.2d 1288, 1290 (¶ 9) (Miss.Ct.App.2001). As such, Gibson could have been convicted for conspiring to bring marihuana into the correctional facility even though he never came into actual possession of the narcotics. *376 Likewise, as the trial court noted when denying post-conviction relief, "[o]ne could have Possession of a Controlled Substance in a Correctional Facility without entering into a conspiracy. Conspiracy is not an essential element of the crime of Possession of a Controlled Substance in a Correctional Facility." This issue is without merit.
¶ 13. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS ARE ASSESSED TO WINSTON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS AND BRANTLEY, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597578/ | 818 So.2d 409 (2001)
Jackie McNeal DURBIN
v.
Marshall B. DURBIN, Jr.
2990185.
Court of Civil Appeals of Alabama.
November 9, 2001.
*410 Randall W. Nichols and Anne D. Lamkin of Massey & Stotser, P.C., Birmingham, for appellant.
Bruce L. Gordon of Gordon, Silberman, Wiggins & Childs, P.C., Birmingham; and L. Drew Redden of Redden, Mills & Clark, Birmingham, for appellee.
On Remand from the Supreme Court
CRAWLEY, Judge.
On December 1, 2000, this court reversed a judgment of the Jefferson Circuit Court divorcing the parties and dividing their marital assets. We held that the trial court had erred as a matter of law or had abused its discretion in dividing the marital assets, and we remanded the cause to the circuit court with instructions for that court to "treat all of the husband's personal Compass stock as marital property and to reconsider its division of the marital assets." 818 So.2d 396, 402. We also awarded the wife an attorney fee of $7,500 on appeal and denied the husband's request for an attorney fee on appeal.
The husband petitioned the Alabama Supreme Court for a writ of certiorari, arguing that the trial court had neither erred nor abused its discretion in dividing the marital assets. The supreme court granted the writ and agreed with the husband. It reversed the prior judgment of this court and held:
"We conclude that the trial court did not plainly or palpably abuse its discretion in dividing the parties' property as it did. Therefore, we reverse the judgment of the Court of Civil Appeals insofar as that judgment reversed a portion of the trial court's judgment, and we remand the case to the Court of Civil Appeals for further proceedings consistent with this opinion."
Ex parte Durbin, 818 So.2d 404, 409 (Ala. 2001) (emphasis added).
The wife filed in this court a "Motion for Specificity on Remand," requesting that we state that this court's prior award of a $7,500 attorney fee to the wife on appeal was not reversed by the supreme court and was, therefore, unaffected by the supreme court's judgment. The husband moves us to "reverse and abate" the award of the attorney fee to the wife because, he says, the "end result" of the litigation has been changed.
"It is the duty of the [lower appellate] court, on remand, to comply strictly with the mandate of the [supreme] court according to its true intent and meaning, as determined by the directions given by the reviewing court. No judgment other than that directed or permitted by the reviewing court may be entered...."
Ex parte Alabama Power Co., 431 So.2d 151, 155 (Ala.1983) (quoting 5 Am.Jur.2d *411 Appeal and Error § 991 (1962)) (emphasis added). "`Where the mandate of [the Alabama Supreme] Court to a court below is precise, it is the duty of the lower court to carry it into execution. Lyon v. Foscue, 60 Ala. 468 (Ala.1877).' Wright v. Cypress Shores Development Co., 461 So.2d 1296, 1299 (Ala.1984)." Environmental Waste Control, Inc. v. Browning-Ferris Indus., Inc., 711 So.2d 912, 913 (Ala.1997). However, where the supreme court gives no precise directions as to how a cause is to proceed as to a certain matter on remand, the lower court may proceed in any manner that is not inconsistent with the supreme court's opinion. Id. Because neither the husband's petition for certiorari review nor the supreme court's opinion reversing this court's prior judgment addressed the issue of the attorney fee this court awarded the wife on appeal, we conclude that the supreme court has not directed this court to reverse the award and that this court is, therefore, permitted either to leave the award intact or to reverse the award.
Because this court would not have awarded the wife an attorney fee on appeal if she had not prevailed in her argument to this court, we conclude that, in light of the supreme court's reversal of our decision, we should reverse the wife's attorney-fee award. Cf. Rule 35, Ala. R.App. P. (stating that "if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered"). We therefore grant the husband's motion to "reverse and abate" the award of the attorney fee to the wife.
On remand to this court, and in compliance with the supreme court's opinion of September 7, 2001, the judgment of the circuit court is affirmed.
AFFIRMED AND APPELLEE'S MOTION TO ABATE ATTORNEY FEE GRANTED.
YATES, P.J., and THOMPSON, PITTMAN, and MURDOCK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1344393/ | 373 S.E.2d 345 (1988)
Judy E. LEE
v.
Leslie A. SALIGA, et al.
Michelle LEE, an Infant, etc.
v.
Leslie A. SALIGA, et al.
Jennings PERRINE, et al.
v.
Leslie A. SALIGA, et al.
No. CC971.
Supreme Court of Appeals of West Virginia.
September 16, 1988.
*346 Vincent J. King, Hunt & Wilson, Charleston, for Judy Lee.
R. Gregory McDermott, Wheeling, William Cipriani Wellsburg, for Perrines and Michelle Lee.
John B. Garden, Wheeling, for Leslie A. Saliga.
Elizabeth H. Rose, Fairmont, for John Doe.
MILLER, Justice:
The Circuit Court of Marshall County has certified questions to us in these consolidated cases pursuant to W.Va.Code, 58-5-2.[1] These questions require us to decide whether the requirement of physical contact contained in our uninsured motorist statute, W.Va.Code, 33-6-31(e)(iii), applies to an uninsured motorist insurance policy issued in Pennsylvania.[2] The circuit court found that West Virginia law applied and that physical contact was necessary. We come to the contrary conclusion under our conflict of laws rule, and hold that the question is controlled by the law of Pennsylvania, the state in which the policy was issued and the insured risk was located.
I.
Judy E. Lee, one of the defendants below, is a resident of York County, Pennsylvania. She was the named insured under a policy of motor vehicle liability insurance issued in April, 1984, by Maryland Casualty Company. Endorsements attached to the policy demonstrate that it was issued in conformity with Pennsylvania law.
The Maryland Casualty policy provided coverage in the amount of $30,000 for damages attributable to the negligence of the operator or owner of an "uninsured motor vehicle." Embraced within the definition of an "uninsured motor vehicle" was a "hit and run vehicle whose operator and owner cannot be identified." Where recovery was sought by the insured for damages caused by a hit and run vehicle, the policy expressly required physical contact with the insured's vehicle as a condition precedent to recovery.[3]
*347 The facts of the accident are summarized from the complaints. On July 9, 1984, Ms. Lee was operating a motor vehicle in which her infant daughter, Michelle, and Jennings and Dolly Perrine were passengers. At approximately 11:55 a.m., Ms. Lee exited Interstate 70 at Sixteenth Street in Wheeling. As she pulled onto the exit ramp, she observed a vehicle in front of her illegally backing toward her. The driver of the other vehicle was unknown. Ms. Lee slowed to a stop and was immediately struck in the rear by another vehicle driven by Leslie A. Saliga. The unknown driver fled the scene. Each of the occupants of the Lee vehicle sustained physical injury. Suits were filed against Ms. Lee and Ms. Saliga, and against the unknown motorist as "John Doe."
Maryland Casualty appeared for "John Doe" and moved to dismiss the suit against it, as physical contact with "John Doe" was not averred in the complaint. The parties jointly agreed to certify to this Court the issue of the enforceability of the physical contact requirement.[4]
II.
The issue presented is whether the validity of the physical contact clause is to be determined by the law of West Virginia, the situs of the accident, or of Pennsylvania, the situs of the insurance policy and the residence of the insured. A requirement of physical contact is directly incorporated into West Virginia's uninsured motorist statutory provisions, W.Va.Code, 33-6-31(e)(iii).[5] In Pennsylvania, physical contact is not a requirement under its Uninsured Motorist Coverage Act. To the contrary, it was held in Webb v. United Serv. Auto. Ass'n, 227 Pa.Super. 508, 323 A.2d 737 (1974), that such a requirement in an automobile insurance policy was void as contrary to public policy. A proper analysis of the conflict of laws issue requires a brief review of the nature and scope of uninsured motorist insurance.
A.
Uninsured motorist protection is an innovation of recent decades, and is included as a separate coverage in the insured's motor vehicle liability policy. As it typically appears, the insurer promises to pay (up to the policy limits) benefits equal to the damages the insured is entitled to recover from an uninsured negligent motorist. The purpose *348 of such insurance is to protect insureds against damages caused by financially irresponsible motorists. No-Fault and Uninsured Motorist Automobile Insurance § 23.00 (1987).
As with all types of insurance, uninsured motorist insurance is a contract between the insurer and the insured. 12 Appleman, Insurance Law and Practice § 7001 (1981). Generally, that contractual relationship is controlled by the law of the state in which the policy was issued, as reflected in that state's uninsured motorist statute. 8C Appleman, Insurance Law and Practice § 5069.35 (1981).
A policy of uninsured motorist insurance provides "first party" protection to the insuredthat is, the insurer promises to pay the benefits of all meritorious claims directly to the insured. Uninsured motorist benefits, then, are indemnity for losses sustained by the insured which are paid pursuant to the insurer's contractual obligation.
It follows from these principles that the right to obtain uninsured motorist benefits derives from the insurance contract, and that a suit for recovery of such benefits is ex contractu. 8D Appleman, Insurance Law and Practice § 5135 (1981); Cline v. Aetna Ins. Co., 317 F. Supp. 1229 (S.D.Ala.1970); Booth v. Fireman's Fund Ins. Co., 253 La. 521, 218 So. 2d 580 (1968); Pappas v. Aetna Cas. & Surety Co., 191 So. 2d 658 (La.App.1966); Reese v. State Farm Mut. Auto. Ins. Co., 285 Md. 548, 403 A.2d 1229 (1979); Motorists Mut. Ins. Co. v. Tomanski, 27 Ohio St. 2d 222, 271 N.E.2d 924, 56 O.O.2d 133 (1971). To recover uninsured motorist benefits, therefore, an insured must prove (1) the existence of a valid policy of uninsured motorist insurance, and (2) entitlement to benefits under the policy. No-Fault and Uninsured Motorist Automobile Insurance § 25.00[1] (1987).
There is in any uninsured motorist case a related tort aspect. The liability of the insurance company providing uninsured motorist coverage is not absolute. Rather, it is conditioned on the insured's right of recovery against the uninsured motorist for the latter's negligent conduct. The insurer stands in the shoes of the uninsured motorist, and is required to pay only if the motorist is or would be liable to the insured. 8C Appleman, Insurance Law and Practice § 5086 (1981). As most policies phrase it, the insured must be "legally entitled to recover" from the uninsured motorist.
The determination of the uninsured motorist's liability is to be made by reference to the general rules of tort law. Simply put, the insured "must allege and prove the same elements of fault and damages that are required to be proved in common law tort actions against tortfeasors." No-Fault and Uninsured Motorist Automobile Insurance § 25.00[2] (1987). (Footnote omitted.)
We also observe that Pennsylvania and West Virginia have adopted distinct statutory methods by which to accommodate the tort aspect of uninsured motorist cases. Pennsylvania law permits a direct action by the insured against the uninsured motorist carrier. 75 Pa.Cons.Stat.Ann. § 1731, et seq., and cases cited therein. On the other hand, W.Va.Code, 33-6-31, provides a specialized procedure to determine the motorist's fault, commonly referred to as a "John Doe" suit. We discussed this procedure at some length in Davis v. Robertson, ___ W.Va. ___, ___, 332 S.E.2d 819, 824-26 (1985).[6] Under our procedure, an insured is required to "sue" the unknown motorist as "John Doe." The insurance carrier is independently served with process, and may enter an appearance and defend "John Doe."
A "John Doe" suit, consistent with the principles stated above, is deemed to sound in tort. As we said in Syllabus Point 1 of Perkins v. Doe, ___ W.Va. ___, 350 S.E.2d 711 (1986): "A suit filed pursuant to West Virginia Code § 33-6-31(e) (Supp. 1986), the `John Doe' provision of the uninsured *349 motorist statute, is an action in tort."[7]
B.
With this background, we turn to the conflict of laws issue here presented. As we have already mentioned, uninsured motorist cases may raise questions of both tort and contract law. Where such a question involves an aspect of policy coverage, rather than liability, it is treated as a contract question for purposes of conflicts analysis. 1 A. Widiss, Uninsured and Underinsured Motorist Insurance § 7.15 (1985). So, for example, questions which relate to the enforceability of exclusionary clauses in the insurance policy, Lewis v. American Family Ins. Group, 555 S.W.2d 579 (Ky.1977); Boardman v. United Serv. Auto. Ass'n, 470 So. 2d 1024 (Miss.1985), the availability of policy "stacking," Eagle Star Ins. Co. v. Parker, 365 So. 2d 780 (Fla.App.1978); Hague v. Allstate Ins. Co., 289 N.W.2d 43 (Minn.1978), aff'd, 449 U.S. 302, 101 S. Ct. 633, 66 L. Ed. 2d 521 (1981); Kemp v. Allstate Ins. Co., 183 Mont. 526, 601 P.2d 20 (1979), and the applicable limits of uninsured motorist coverage, Travelers Indemnity Co. v. Stearns, 116 N.H. 285, 358 A.2d 402 (1976); Burns v. Aetna Cas. & Surety Co., 741 S.W.2d 318 (Tenn.1987), are all deemed to be contract questions.
We thus conclude that where in a suit for the recovery of uninsured motorist insurance benefits an issue arises which involves insurance coverage, that issue is to be resolved under conflict of laws principles applicable to contracts.[8]
We acknowledge that in Perkins v. Doe, ___ W.Va. ___, 350 S.E.2d 711 (1986), we made an analysis of a similar question and applied the conflict of laws rule for torts, but this was due to the manner in which the questions were certified to us. In Perkins, a West Virginia resident who was covered by an automobile liability policy which contained an uninsured motorist provision filed a "John Doe" action in a West Virginia circuit court against his own insurance carrier. The accident had occurred in Virginia, whose uninsured motorist statute did not require physical contact.
The carrier, State Farm Mutual Automobile Insurance Company, removed the case to the United States District Court for the Southern District of West Virginia. The district court certified questions to this Court which essentially required resolution of the question of whether the Virginia or the West Virginia uninsured motorist provision applied under tort conflict of laws principles.[9] No analysis was made in Perkins of the policy provision. We do not deem Perkins to be controlling on the issues presented in this case.
Research has produced only a handful of cases which deal directly with the conflicts rule to be applied where the policy is issued in a state that does not require physical contact and the accident occurs in a state that requires such contact. Each of these cases treats the issue as one of policy coverage subject to conflict rules for contracts. These courts have generally concluded that the state where the contract of insurance was issued and the insured resided would control the interpretation of that contract. Thus, if the state law where *350 the contract is issued forbids a physical contact requirement, this law will be applied. E.g., Lee v. Wheeler, 258 U.S.App.D. C. 184, 810 F.2d 303 (D.C.Cir.1987); National Union Fire Ins. Co. v. Binker, 665 F. Supp. 35 (D.D.C.1987); Howard v. Doe, 174 Ga.App. 415, 330 S.E.2d 370 (1985); Cole v. State Automobile & Cas. Underwriters, 296 N.W.2d 779 (Iowa 1980); Allstate Ins. Co. v. Walsh, 115 Misc. 2d 907, 454 N.Y.S.2d 774 (Sup.Ct.1982).
Typical of this approach is the decision by the Iowa Supreme Court in Cole. There, an insurance contract was issued in Minnesota which contained a physical contact requirement. However, the Minnesota Supreme Court had in a prior case invalidated the physical contact requirement as contrary to its uninsured motorist statute.[10] The accident happened in Iowa, where physical contact was still required by that state's uninsured motorist statute. The Iowa court, quoting from Insurance Managers, Inc. v. Calvert Fire Ins. Co., 261 Iowa 155, 163, 153 N.W.2d 480, 484 (1967), stated:
"[W]e adhered to the rule as quoted from 44 C.J.S. Insurance § 52: An insurance policy is governed
as to its nature, validity, and interpretation or construction ... by the law of the place where it was made or consummated, unless the parties clearly appear to have intended the law of a different place to govern....
A contract of insurance is deemed to have been made in the state where the last act was done which was necessary to create the contract."
296 N.W.2d at 781.
The court went on to indicate it had adopted Section 187 of the Restatement (Second) of Conflict of Laws, which recognizes that subject to certain restrictions "contracting parties can themselves determine the law which is to control." Further provisions of the Restatement come into play where the parties do not choose an applicable state whose law will control. Where there is no choice of law by the parties, the court "applies the law of the jurisdiction with the `most significant relationship' to the transaction in dispute." 296 N.W.2d at 781. The Iowa court concluded that Minnesota had more significant contacts and that its law would be applied.
We are persuaded that Cole and the other cases cited herein represent a proper application of the principle that questions of policy coverage are contract questions. Having concluded that the issue presented is one of contract, we turn to a discussion of the appropriate conflicts rule.
III.
Our general conflict of laws rule in contract cases was discussed at some length in General Elec. Co. v. Keyser, 166 W.Va. 456, 275 S.E.2d 289 (1981), where we recognized the paucity of our law in this area and stated that this was "often [a] confusing area of law." 166 W.Va. at 460, 275 S.E.2d at 292. See 16 Am.Jur.2d, Conflicts of Law § 74, et seq. (1979); see also Paul v. Nationwide Life Ins. Co., ___ W.Va. ___, 352 S.E.2d 550 (1986) (discussing origins of conflict of laws rules and the rule in tort cases).
In that opinion, we relied on the provisions of Section 187(2) of the Restatement (Second) of Conflict of Laws to invalidate a choice of law provision contained in the contract.[11] We concluded in our analysis in Keyser by citing in Syllabus Point 2 what has been our traditional statement of the contract conflict of laws rule:
"`The law of the state in which a contract is made and to be performed governs the construction of a contract when it is involved in litigation in the courts of this state'. Syl. pt. 1 (in part) Michigan National Bank v. Mattingly, 158 W.Va. 621, 212 S.E.2d 754 (1975)." *351 See also Pemco Corp. v. Rose, 163 W.Va. 420, 257 S.E.2d 885 (1979).
This rule, which was derived from Syllabus Point 3 of State v. Hall, 91 W.Va. 648, 114 S.E. 250 (1922),[12] assumes that the contract was both made and to be performed in another state. It is quite apparent, however, that a contract can be made in one state and performed in another. This was, in fact, the situation in Mattingly. We concluded in Mattingly that "[t]he conflict of laws question in this case evolved into a factual issue" as to where the contract was made. 158 W.Va. at 625, 212 S.E.2d at 757. This factual issue arose because there was conflicting evidence as to where the contract was executed.
More recently in New v. Tac & C Energy, Inc., ___ W.Va. ___, 355 S.E.2d 629 (1987), we dealt with a contract which was made in this State, but was performed in another. An employment contract was at issue and there was a dispute over wages and fringe benefits. The company by which the two plaintiffs were employed was headquartered in West Virginia, where all of its administrative matters were handled. The two plaintiffs, however, worked at the company's mine site in Kentucky. We cited Syllabus Point 2, in part, of In re Fox's Estate, 131 W.Va. 429, 48 S.E.2d 1 (1948).[13] We ultimately resolved the conflicts issue by applying Section 196 of the Restatement (Second) of Conflict of Laws. This section deals with contracts to render services, and gives preference to the law of the state where the services are to be performed.
This section, however, contains two qualifications: (1) the parties can in the contract exercise a choice of law, and (2) the preference for the law of the place of rendition of the services can be altered to a state that has a more significant relationship to the transaction and the parties. After analyzing the factual situation, we concluded that West Virginia law should apply because it had more substantial contacts. See also Jones v. Tri-County Growers, Inc., ___ W.Va. ___, 366 S.E.2d 726 (1988).
This survey of our conflict cases lends itself to several conclusions. Our traditional contract conflict rule gives substantial deference to the state where the contract is made and where it is to be performed, assuming both incidents occur in the same state. This rule is subject to two qualifications: (1) that the parties have not made a choice of applicable law in the contract itself; and (2) the law of the other state does not offend our public policy.
Another conclusion is that despite some criticism of the Restatement (Second) of Conflicts of Laws rules in the tort area,[14] we have utilized Restatement conflict of laws principles in our cases. It cannot be doubted that the Restatement principles do embody what may be termed the modern trend of the law. See Annot., 20 A.L.R. 4th 738 (1983) (conflict of laws rule in cases involving automobile liability policy). Its principles do not differ materially from our *352 existing law and are designed to provide a fixed standard, yet allow for some flexibility by its qualification that in complex cases a substantial contact analysis is appropriate.
Turning our attention to the present case, we find it of importance that it involves an insurance contract. We have in the past decided several cases which involved insurance contracts where a conflict of laws issue appears to have existed. E.g., New York Life Ins. Co. v. Bonasso, 121 W.Va. 143, 2 S.E.2d 260 (1939); S.M. Smith Ins. Agency v. Hamilton Fire Ins. Co., 69 W.Va. 129, 71 S.E. 194 (1911); Galloway v. Standard Fire Ins. Co., 45 W.Va. 237, 31 S.E. 969 (1898). However, on closer examination, these cases do not purport to formulate any general conflict of laws rule. Rather, they stand for the simple proposition that if the insurance contract is issued in this State, then it will be construed under the laws of this State.[15]
The Restatement conflicts rule on fire, surety, or casualty insurance is contained in Section 193. It gives deference to the "state which the parties understood was to be the principal location of the insured risk,"[16] subject to the qualification for the substantial contacts test contained in Section 6 of the Restatement.[17] The Restatement does not mention as a factor the state where the policy is issued. However, in its discussion of the rule, it is pointed out that in this type of insurance, the policy will be solicited and issued by a local agent and this will ordinarily coincide with the situs of the insured risk.[18] Thus, the holding of our earlier insurance cases that a contract issued by a local agent will be controlled by West Virginia law will be met.
There are other reasons that reinforce this conflict of laws rule. The usual coincidence of the insurance agent, insured, and the risk in the same state dictates that the parties would be more familiar with that state's insurance statutes, which often supplement or control the policy provisions. This law should control the reasonable expectation of the parties, rather than that of another state whose only connection to the dispute is the fortuity that the accident occurred there.
Consequently, we find that the Restatement standard and its commentary provide useful guidance along with our *353 earlier cases in fashioning the following rule: The provisions of a motor vehicle liability policy will ordinarily be construed according to the laws of the state where the policy was issued and the risk insured was principally located, unless another state has a more significant relationship to the transaction and the parties.[19]
Having answered the controlling certified question to require the application of Pennsylvania law, the case is remanded to the Circuit Court of Marshall County.
Certified Questions Answered and Case Remanded.
NOTES
[1] As relevant here, W.Va.Code, 58-5-2, provides that the parties to a suit may upon joint application certify "[a]ny question arising upon ... a challenge of the sufficiency of a pleading...."
[2] While a variety of questions were certified to us, we conclude that the controlling question is: "Whether the physical contact requirement of West Virginia Code Section 33-6-31(e)(iii) should apply where the parties to the insurance contract are residents of and the contract was written in a state which does not require physical contact[?]" In City of Fairmont v. Retail, Wholesale and Dept. Store Union, AFL-CIO, 166 W.Va. 1, 3-4, 283 S.E.2d 589, 590 (1980), it was stated that "[w]e have traditionally maintained that upon receiving certified questions we retain some flexibility in determining how and to what extent they will be answered." (Citations omitted).
[3] The uninsured motorist provisions of the policy read, in part:
"We will pay damages which a covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle because of bodily injury: (1) sustained by a covered person; and (2) caused by an accident.
* * * * * *
"`Uninsured motor vehicle' means a land motor vehicle or trailer of any type ... [w]hich is a hit and run vehicle whose operator or owner cannot be identified and which hits: (a) you or any family member; (b) a vehicle which you or any family member are occupying; or (c) your covered auto." (Emphasis added).
These provisions were amended by policy endorsement to eliminate the need for physical contact as a condition of recovery. The parties dispute whether the endorsement was operative on the date of the accident. As we point out, infra, the Pennsylvania courts have held that a physical contact requirement in an uninsured motorist provision contravenes Pennsylvania public policy. Thus, under Pennsylvania law, the main policy provision requiring physical contact would be void. Webb v. United Serv. Auto. Ass'n, 227 Pa.Super. 508, 323 A.2d 737 (1974).
[4] As phrased by the parties, the other certified questions seek an interpretation of the physical contact requirement provided for under W.Va. Code, 33-6-31(e)(iii). We do not reach these questions of West Virginia law, as we find Pennsylvania law to be applicable.
[5] W.Va.Code, 33-6-31(e)(iii), provides, in part:
"(e) If the owner or operator of any motor vehicle which causes bodily injury or property damage to the insured be unknown, the insured, or someone in his behalf, in order for the insured to recover under the uninsured motorist endorsement or provision, shall:
* * * * * *
"(iii) Upon trial establish that the motor vehicle, which caused the bodily injury or property damage, whose operator is unknown, was a `hit and run' motor vehicle, meaning a motor vehicle which causes damage to the property of the insured arising out of physical contact of such motor vehicle therewith, or which causes bodily injury to the insured arising out of physical contact of such motor vehicle with the insured or with a motor vehicle which the insured was occupying at the time of the accident...." (Emphasis added).
[6] As we pointed out in Davis, three other jurisdictions have "John Doe" statutes similar to our own. Ga.Code § 33-7-11; S.C.Code Ann. § 38-77-180; Va.Code § 38.2-2206.
[7] It is perhaps more accurate to say that a "John Doe" suit simulates a tort suit, since it is a wholly artificial procedure and "John Doe" is merely a putative defendant.
[8] It is clear from Syllabus Point 6, in part, of Perkins v. Doe, ___ W.Va. ___, 350 S.E.2d 711 (1986), that "[a]n insurance company may assert any contractual defenses in an action by the insured to recover on the uninsured motorist endorsement of his liability policy."
[9] The three certified questions are set out in note 1 of Perkins, ___ W.Va. at __, 350 S.E.2d at 713. Question 2 is typical:
"If your response to Question Number One is `Virginia law,' does the doctrine that lex loci must yield when it conflicts with the public policy of the lex fori, Chase v. Greyhound Lines, Inc., 195 S.E.2d 810, 813 (W.Va.1973), overruled on other grounds, Lee v. Comer, 224 S.E.2d 721 (W.Va.1976); Poling v. Poling, 116 W.Va. 187, 189, 179 S.E. 604 (1935), bar Plaintiffs' claim?"
Chase and Poling involved tort actions where the question was whether the lex loci delicti conflicts rule should be applied.
[10] Halseth v. State Farm Mut. Ins. Co., 268 N.W.2d 730 (Minn.1978).
[11] Syllabus Point 1 of Keyser stated:
"A choice of law provision in a contract will not be given effect when the contract bears no substantial relationship with the jurisdiction whose laws the parties have chosen to govern the agreement, or when the application of that law would offend the public policy of this state."
[12] Syllabus Point 3 of Hall states: "A contract made and to be performed in a state other than this will be interpreted and enforced in the courts of this State in conformity with the laws of such other state, in the absence of a rule or measure of public policy of this State, denying it such construction, operation, and effect."
[13] Syllabus Point 2 of In re Fox's Estate, provides: "The laws of the state where a contract is made and is to be performed determine the substantive rights of the parties to such contract; but in the enforcement of those rights by litigation, the procedural laws of the state where enforcement is sought control."
[14] This criticism is contained in Paul v. Nationwide Life Ins. Co., ___ W.Va. ___, 352 S.E.2d 550 (1986). However, the author of Paul has more recently tempered his view, stating in Oakes v. Oxygen Therapy Serv., ___ W.Va. ___, 363 S.E.2d 130, 131 (1987), that "on appropriate occasions [we have] repaired to the standards set forth in the Restatement to resolve particularly thorny conflict problems." (Citation omitted). Oakes was a retaliatory discharge case where the key question was what law governed the employment contract. Oakes, a West Virginia resident, was employed in Maryland and was injured there. He filed a Maryland workers' compensation claim and was then fired. He brought his retaliatory discharge suit in West Virginia relying, in part, on the substantial contacts test contained in Section 6 of the Restatement, see note 17, infra. We found the law of the State of Maryland to be applicable. Its law did not recognize a retaliatory discharge claim.
[15] New York Life Ins. Co. v. Bonasso, supra, contains this terse statement: "[t]he policy under consideration, having been countersigned and delivered in this state, should be interpreted under the laws of this state[.]" 121 W.Va. at 146, 2 S.E.2d at 262. Smith Ins. Agency v. Hamilton Fire Ins. Co., supra, and Galloway v. Standard Fire Ins. Co., supra, contain equally brief statements to the effect that the policy was countersigned in this State and, therefore, became a contract of this State.
[16] Section 193 of the Restatement (Second) of Conflict of Laws provides:
"The validity of a contract of fire, surety or casualty insurance and the rights created thereby are determined by the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy, unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the transaction and the parties, in which event the local law of the other state will be applied."
[17] Section 6 of the Restatement states:
"(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.
"(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
"(a) the needs of the interstate and international systems,
"(b) the relevant policies of the forum,
"(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
"(d) the protection of justified expectations,
"(e) the basic policies underlying the particular field of law,
"(f) certainty, predictability and uniformity of result, and
"(g) ease in the determination and application of the law to be applied."
[18] Commentary (b) to Section 193 of the Restatement provides, in part:
"In the normal case, therefore, the policy will have been solicited and delivered and the last act necessary to make the contract binding will have taken place in the state where the insured is domiciled or incorporated, and where the insured risk is located. This state, in such a situation, will usually be the state of the applicable law, at least with respect to most issues."
[19] We also recognize the conflict of laws principle that a state may ignore the law of another state if it is contrary to its own public policy. Paul v. Nationwide Life Ins. Co., supra; State v. Hall, 91 W.Va. 648, 114 S.E. 648 (1922); 2 Couch on Insurance § 16.48 (2d ed. 1984). This is not an issue here.
It should be pointed out that the general rule regarding the right of parties to make a choice of law in the contract is of limited applicability by virtue of W.Va.Code, 33-6-14 (1957), which provides in relevant part:
"No policy delivered or issued for delivery in West Virginia and covering a subject of insurance resident, located, or to be performed in West Virginia, shall contain any condition, stipulation or agreement requiring such policy to be construed according the laws of any other state or country, except as necessary to meet the requirements of the motor vehicle financial responsibility laws or compulsory disability benefit laws of such other state or country[.]"
We also note, as does Section 6 of the Restatement, see note 17, supra, that a court's arbitrary selection of its own law may trigger a full faith and credit problem under U.S. Const. art. IV, § 1, and the due process clause of the Fourteenth Amendment. Allstate Ins. Co. v. Hague, 449 U.S. 302, 101 S. Ct. 633, 66 L. Ed. 2d 521 (1981). However, even under Hague's rather extreme facts, no constitutional violation was found. There, Minnesota applied its automobile insurance law to a policy issued to a Wisconsin resident who was killed in Wisconsin in an automobile accident involving other Wisconsin residents. The only Minnesota connection was that the deceased was on his way to his place of work in Minnesota which was near the accident scene. Further, his wife moved to Minnesota after the suit was filed. Wisconsin's insurance law precluded the "stacking" of coverage, while Minnesota law permitted it. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597358/ | 384 N.W.2d 651 (1986)
STATE of North Dakota, Plaintiff and Appellee,
v.
Craig HAUGEN, Defendant and Appellant.
Crim. No. 1122.
Supreme Court of North Dakota.
March 19, 1986.
Mark A. Flagstad, Asst. State's Atty., Minot, for plaintiff and appellee.
Thomas K. Schoppert, New Town, for defendant and appellant.
VANDE WALLE, Justice.
Craig Haugen appealed from the judgment of conviction for driving while under the influence of alcohol. Haugen argues that he did not make a knowing and intelligent waiver of his right to trial by jury, that he was not informed of his right to compulsory process, and that he was denied his right to effective assistance of counsel. We reverse and remand for a new trial.
On July 16, 1984, Haugen appeared before the county court of Ward County for arraignment on the charge of driving while under the influence of alcohol, second offense. The prosecutor in his affidavit states that he gave an explanation of rights to "the group of persons assembled for court appearance before the entry of the judge into the courtroom." The record does not reveal the entire content of the advice given to the defendants, although the prosecutor has submitted an affidavit that quotesfrom an unspecified sourcea portion of the advice given to the group:
"If you enter a plea of guilty, you have a right to a trial by jury. The judge will ask you if you want a trial by jury. If you want one you must say so; otherwise, the trial will be to the judge only.
"If you have a trial, you have the right to subpoena witnesses. A subpoena is an order from the judge to anyone who you may want to have as a witness to be here to testify at your trial. A subpoena does not guarantee that the witness will say what you want him to, or anything at all, but does virtually guarantee that the witness will be present."
*652 Upon the arrival of the judge, Haugen approached the bench and received an explanation from the judge of the maximum penalties for the charge. The following discussion then occurred:
"THE COURT: ...
"Were you here earlier when the rights were explained sir?
"MR. HAUGEN: Yeah.
"THE COURT: Do you understand your rights this morning?
"MR. HAUGEN: Yes."
After finding out that Haugen had talked with a lawyer on the phone, the court requested that Haugen enter a plea. Haugen entered a not-guilty plea. In response to a question posed by the court, Haugen stated that he was not yet sure who would be representing him.
"THE COURT: Okay. Do you wish to have a court trial or jury trial?
"MR. HAUGEN: Court trial.
"THE COURT: All right."
The court then set a trial date and informed Haugen that he, his attorney, and "any witnesses you should have" should appear on that date ready for trial, that he is presumed to be innocent until proven guilty beyond a reasonable doubt, and that he need not take the stand on his own behalf. The court requested Haugen to sign a promise to appear before he left the courtroom. At some point in the proceeding, apparently at the same time he signed the promise to appear, Haugen received and signed a document entitled "Statement of Rights." The document, omitting its title and the signatures of Haugen and the court clerks, contains the following language:
"In connection with your appearance in this court it is the duty of this court to advise you of your constitutional rights as follows:
"1. You shall be informed of the charge against you and any accompanying affidavit.
"2. You have the right to remain silent; that any statement made by you may be later used against you.
"3. You have the right to assistance of counsel before making any statement or answering any questions.
"4. You have the right to be represented by counsel at each and every state of the proceedings.
"5. That if the offense charged is one for which court appointed counsel is required, you have the right to have legal services provided at public expense to the extent that you are unable to pay for your own defense without undue hardship.
"6. You have the right to be admitted to bail pursuant to the provisions of Rule 46.
"7. You have the right to trial by jury in all cases as provided by law, and you have the right to appear and defend in person or by counsel.
"I acknowledge the receipt of my rights under the North Dakota Rules of Criminal Procedure. I hereby waive my right to counsel. I understand that my plea of guilty is a waiver of my right to trial in this case."
The record yields no information as to the circumstances surrounding the signing of this document; for example, there is no indication that Haugen was provided sufficient time to read the document or to ask for any explanation of its terms.
A court trial was held on August 30, 1984. Haugen was found guilty of driving while under the influence of alcohol, second offense, and received a fine and sentence. The trial court denied Haugen's timely motion for a new trial on July 2, 1985.
Article I, Section 13, of the North Dakota Constitution provides that "[t]he right of trial by jury shall be secured to all, and remain inviolate...."[1] This provision *653 reflects the recognized importance of trial by jury under our system of justice. Nonetheless, the right to trial by jury "is a right which may be waived by a defendant under certain conditions." State v. Kranz, 353 N.W.2d 748, 751 (N.D.1984). As Chief Justice Erickstad stated in Kranz, "The great importance and public interest in jury trials as the normal and preferred mode of factfinding in criminal cases precludes a defendant from waiving the right to trial by jury without the express, intelligent consent of the defendant and consent of the prosecutor and judge." 353 N.W.2d at 751. [Emphasis and footnote omitted.] Where a defendant indicates a desire to waive his or her right to a jury trial, it is the responsibility of the trial court to "ascertain whether or not the defendant's jury trial waiver is a voluntary, knowing, and intelligent decision `done with sufficient awareness of the relevant circumstances and likely consequences.' "Kranz, 353 N.W.2d at 752, quoting Brady v. United States, 397 U.S. 742, 748, 90 S. Ct. 1463, 1469, 25 L. Ed. 2d 747, 756 (1970).
The mere selection by Haugen of a court trial over a jury trial provides no indication that Haugen understood the implications of his decision. Nor did the prosecutor's statement adequately inform Haugen of the differences between a court trial and a jury trial. Under these facts, Haugen's assertion that he believed that he would have to pay for the jury trial is not beyond reason. Moreover, the prosecutor's statement that if the defendants want a trial by jury they "must say so; otherwise, the trial will be to the judge only" is an incorrect statement of the law. Nor can the signed form act as a valid waiver: The words "I understand that my plea of guilty is a waiver of my right to trial in this case" are meaningless where the defendant pleads not guilty.
Another troubling aspect of the procedure employed below is the advisement of rights by the prosecutor instead of the court. Rule 5 of the Rules of Criminal Procedure states that the magistrate shall inform the defendant of his rights. The goals of expediency and efficient administration of justice are important and properly justify streamlining court procedures. But these goals cannot displace fundamental rights which are guaranteed by our Constitution, laws, and procedural rules.[2] Although written forms that explain an individual's rights may be used to expedite the process, Rule 5 requires that the magistrate act as the conduit to the distribution and explanation of the rights. Use of adversarial counsel for this purpose is inappropriate because our rules envision communication and explanation of these important rights by the magistrate, who functions as a neutral and detached person. The magistrate's personal attendance to this function also allows the judge to observe any signs of confusion and answer any questions posed by the defendants. The judge stands as a symbol of fairness and justice to those appearing before him; persons who are unlearned in the law may not perceive the prosecutor, even while performing a nonadversarial function, as an officer of the court obligated with the same concern for justice and enforcement of rights.
Under the circumstances of this case, where the prosecutor performs the judicial function of advising an uncounseled defendant out of the presence of the judge, where that advice includes incorrect statements of law, and where a defendant is provided with a written statement of rights which contains waivers that are entirely inappropriate to the situation, we cannot *654 conclude that the waiver of defendant's right to a jury trial was a voluntary, knowing, and intelligent decision. We therefore reverse the judgment of conviction and remand the case for a new trial.
ERICKSTAD, C.J., and LEVINE, MESCHKE and GIERKE, JJ., concur.
NOTES
[1] See also Section 27-07.1-31, N.D.C.C., which states that "[e]xcept as otherwise provided by law, a defendant in a criminal action in a county court shall be entitled to a trial by jury, and when the defendant is arraigned he shall be informed by the court of this right. If the defendant waives the right to a jury trial, an entry to that effect shall be made on the court minutes." Our rules provide that a waiver of a jury trial must be "in writing or in open court with the approval of the court and consent of the prosecuting attorney." Rule 23(a), N.D.R.Crim.P.
[2] Some States have developed specific rules governing oral and written group advisories, and mandating individual questioning of each defendant following a group advisory. See, e.g., Rules 15.02 and 15.03, Minn.R.Cr.P.; see also State v. Grunewald, 378 N.W.2d 55 (Minn.App.1985); Illingworth v. Municipal Court, Etc., 102 Cal. App. 3d 19, 164 Cal. Rptr. 53 (1980). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597398/ | 3 So. 3d 959 (2007)
EX PARTE BENNY LEE DAILEY
No. 1060025 (CR-05-1441).
Supreme Court of Alabama.
January 12, 2007.
Decision of the supreme court of alabama without opinion. Cert. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1026490/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4037
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DONNIE WELCH,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (2:06-cr-00191-1)
Submitted: July 9, 2008 Decided: August 19, 2008
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Travis E. Ellison, III, JOHN R. MITCHELL, L.C., Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Monica K. Schwartz, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Donnie Welch pled guilty pursuant to a written plea
agreement to possession of an unregistered bomb, making false
statements to federal agents, possession of a firearm by an addict,
and committing perjury during grand jury proceedings, in violation
of 18 U.S.C. §§ 922(g)(3); 1001; 1623; 26 U.S.C. § 5861(d) (2000).
Welch was sentenced to a total of 262 months’ imprisonment.
Finding no error, we affirm.
On appeal, Welch contends the district court erred in
denying his motion to withdraw his guilty plea. A defendant may
withdraw a guilty plea prior to sentencing if he “can show a fair
and just reason for requesting the withdrawal.” Fed. R. Crim. P.
11(d)(2)(B). In determining whether a defendant will be permitted
to withdraw his guilty plea, a district court should consider:
(1) whether the defendant has offered credible evidence
that his plea was not knowing or not voluntary,
(2) whether the defendant has credibly asserted his legal
innocence, (3) whether there has been a delay between the
entering of the plea and the filing of the motion,
(4) whether defendant has had close assistance of
competent counsel, (5) whether withdrawal will cause
prejudice to the Government, and (6) whether it will
inconvenience the court and waste judicial resources.
United States v. Moore, 931 F.2d 245, 248 (4th Cir. 1991). We
review a district court’s denial of a motion to withdraw a guilty
plea for abuse of discretion. United States v. Ubakanma, 215 F.3d
421, 424 (4th Cir. 2000). Further, we closely scrutinize the Rule
11 colloquy and attach a strong presumption that the plea is final
- 2 -
and binding if the Rule 11 hearing is adequate. United States v.
Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc).
As noted by the district court, and conceded by Welch on
appeal, the motion to withdraw the guilty plea was not predicated
on an assertion of legal innocence. Instead, Welch argues, as he
did in the district court, that he would not have pled guilty if he
had known that he was subject to a six-level enhancement under U.S.
Sentencing Guidelines Manual § 3A1.2(b) (2006). However, during
the properly conducted Rule 11 hearing, Welch acknowledged the plea
agreement provision explaining that neither the court nor the
probation office was bound by the parties’ estimate of the
Guidelines calculation. The court explained in detail the
procedure for determining the advisory guideline range and stated
that the applicable range would “not become clear” until the
presentence report was finalized, including the resolution of any
objections thereto. Likewise, the court informed Welch that he was
subject to a total statutory maximum of thirty years’ confinement.
Considering all of the Moore factors, and Welch’s failure to
overcome the presumption that his plea is final and binding, we
conclude the district court did not abuse its discretion in denying
Welch’s motion to withdraw his guilty plea.
Welch also contends that the district court erred in its
application of USSG § 3A1.2(b). The Government asserts that Welch
is foreclosed from raising this issue based on the appellate waiver
- 3 -
provision in the plea agreement. According to the terms of the
agreement, Welch waived his right to appeal the reasonableness of
any sentence within the applicable advisory guideline range.
Welch, however, retained the right to appeal a properly preserved
objection to the district court’s Guidelines calculation. Because
Welch challenges his sentence based on a properly preserved
objection to the court’s application of § 3A1.2(b), we conclude the
appeal waiver is inapplicable.
When reviewing the district court’s application of the
Sentencing Guidelines, we review findings of fact for clear error
and questions of law de novo. United States v. Green, 436 F.3d
449, 456 (4th Cir. 2006). Welch does not dispute that his intended
victim was a law enforcement officer and that § 3A1.2(b) is
applicable. Rather, Welch argues that it would be unfair to apply
the six-level enhancement in this case because, due to an
oversight, the other individual involved in the crime was not
subjected to the enhancement. Welch reasons that application of
the enhancement would result in an unwarranted disparate sentence
as contemplated by 18 U.S.C. § 3553(a)(6) (2000).
While it appears that the enhancement was not applied in
the related case, such error does not justify affording Welch a
windfall. See United States v. Ellis, 975 F.2d 1061, 1066 n.2 (4th
Cir. 1992). Moreover, we have previously rejected a similar
argument, stating that “‘the kind of “disparity” with which
- 4 -
§ 3553(a)(6) is concerned is an unjustified difference across
judges (or districts) rather than among defendants to a single
case.’” United States v. Pyles, 482 F.3d 282, 290 (4th Cir. 2007)
(quoting United States v. Boscarino, 437 F.3d 634, 638 (7th Cir.
2006)), vacated on other grounds, 128 S. Ct. 865 (2008) (vacating
for consideration in light of Gall v. United States, 128 S. Ct. 586
(2007)). Welch has failed to establish that his sentence is
disparate among the broader scope of similarly situated defendants.
Consequently, we conclude the district court did not err in
applying USSG § 3A1.2(b).
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
- 5 - | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1026492/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5016
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SEAN AARON MIMS, a/k/a Sean Aaron Mimms,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:07-cr-00150-REP)
Submitted: August 14, 2008 Decided: August 19, 2008
Before MICHAEL, Circuit Judge, and WILKINS and HAMILTON, Senior
Circuit Judges.
Dismissed by unpublished per curiam opinion.
Craig W. Sampson, Sr., BARNES & DIEHL, PC, Chesterfield, Virginia,
for Appellant. Samuel Eugene Fishel, IV, Special Assistant United
States Attorney, Elizabeth Wu, Assistant United States Attorney,
Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sean Aaron Mims pled guilty to two counts of possession
of child pornography, 18 U.S.C.A. § 2252A(a)(5)(B) (West 2000
& Supp. 2008), and was sentenced to the statutory maximum term of
120 months on each count, with the sentences partially concurrent
and partially consecutive, for a total sentence of 168 months
imprisonment. Under the terms of his plea agreement, Mims waived
his right to appeal any sentence within the statutory maximum “on
the grounds set forth in Title 18, United States Code, Section 3742
or on any ground whatsoever.” Mims now seeks to contest the
calculation of his advisory guideline range, challenging a five-
level enhancement under U.S. Sentencing Guidelines Manual
§ 2G2.2(b)(5) (2006), on the ground that the conduct underlying the
enhancement was a separate crime. The government has moved to
dismiss the appeal based on the waiver of appeal rights.
Mims concedes that he waived his right to appeal and that
the waiver was knowing and voluntary. See United States v. Brown,
232 F.3d 399, 402-06 (4th Cir. 2000). He contends that the issue
he seeks to raise is not within the scope of the waiver. We
disagree.
We therefore grant the government’s motion to dismiss and
dismiss the appeal. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
2
materials before the court and argument would not aid the
decisional process.
DISMISSED
3 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597400/ | 638 So. 2d 1332 (1994)
Ex parte Joe Cecil DUNCAN, Jr.
(In re State of Alabama v. Joe Cecil Duncan, Jr.).
1921874.
Supreme Court of Alabama.
January 21, 1994.
As Modified on Denial of Rehearing March 4, 1994.
Philip Henry Pitts and J.L. Chestnut, Jr., Selma, for petitioner.
Edgar W. Greene, Asst. Dist. Atty., Selma, and H. William Wasden, Mobile, for respondent.
James H. Evans, Atty. Gen., and Robin Blevins, Deputy Atty. Gen., on rehearing, for respondent.
HOUSTON, Justice.
The petitioner, Joe Cecil Duncan, Jr., seeks a writ of mandamus to compel the recusal of a circuit court judge on the ground that he is biased and prejudiced.
*1333 Duncan was convicted of the capital murder of Elizabeth Cobb in Dallas County; the jury returned a verdict of life without parole.[1] The trial court overrode the jury's verdict and sentenced Duncan to death. The Court of Criminal Appeals reversed and remanded for a hearing on the question whether the principles of Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), had been violated in the selection of the jury. Duncan v. State, 575 So. 2d 1198 (Ala.Crim. App.1990). On remand, the trial court held that there had been no Batson violation. On return to remand, the Court of Criminal Appeals reversed and remanded for a new trial. Duncan v. State, 612 So. 2d 1304 (Ala. Crim.App.1992). Duncan then moved the trial judge to recuse; the judge refused to do so. Subsequently, Duncan petitioned the Court of Criminal Appeals for a writ of mandamus ordering the trial judge to recuse, but that court denied the petition, on September 8, 1993, without an opinion. ___ So.2d ___. Duncan now seeks a writ of mandamus from this Court ordering the trial judge to recuse because of what Duncan says are "the unique facts of this case and the clear evidence of personal bias on the part of [the trial] judge." Duncan's counsel says that "if the trial court's decision is not reversed, the very question whether he should live or die will have been decided by a trial court which has evidenced personal bias and prejudice against him."
Duncan maintains that the trial judge displayed personal bias, prejudice, and hostility by finding, among other things, that the aggravating circumstance that the capital offense was especially atrocious, heinous, or cruel was applicable even though the state did not seek to use that factor and even though, he says, the trial judge knew that that finding could not be sustained. The judge stated:
"THE COURT: Now I'm tempted to go one step further and say there's an additional statutory aggravating circumstance that has been proven in this case and that's the last one that's set forth in the Code, and I'll stateI'll read from the Code at this time, the capital offense was especially heinous, atrocious or cruel compared to other capital offenses; but ... I understand that that probably would not be sustained in this case although in my personal opinion it should be.... But, you know, I just ask myself one simple question; if we got news that they were slaughtering cattle this way in the stockyard, what would the reaction be? Would we say that that's heinous, atrocious and cruel? I would."
Duncan also maintains that the trial judge demonstrated blatant personal bias toward Duncan by determining, on his own, that the crime for which Duncan was convicted was premeditated, a factor not listed in the statute and not to be considered as an aggravating circumstance. At the sentencing hearing, the judge stated:
"Now the murder in this case was premeditated, it was diabolical, methodical, heartless, cruel, cold, deliberate, it was planned. It was a planned execution and slaughter of an innocent young lady while she quietly and peacefully waited unsuspectingly on the sacred grounds of a little country church on the Sabbath evening.... There was no excuse, there was no justification, for a vile, conscienceless, pitiless murder."
According to Duncan, these statements evidence such bias and prejudice as to mandate the trial judge's recusal in this casethese statements, Duncan says, evidence that the trial judge's impartiality is reasonably in question.
This Court recognizes the importance of judicial impartiality:
"`Implanted in the foundation of public policy is the general rule that no judge shall preside in a case in which he is not wholly free, disinterested, and independent.' Ex parte White, 53 Ala.App. 377, 386, 300 So. 2d 420, 429, cert. denied, 293 Ala. 778, 300 So. 2d 439 (1974). Or, as Justice Frankfurter once said, `[J]ustice must satisfy the appearance of justice.' Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11 (1954)." *1334 Ex parte Large, 501 So. 2d 1208, 1210 (Ala. 1986).
Under Canon 3(C)(1), Alabama Canons of Judicial Ethics, recusal is required when "facts are shown which make it reasonable for members of the public or a party, or counsel opposed to question the impartiality of the judge." Acromag-Viking v. Blalock, 420 So. 2d 60, 61 (Ala.1982). Specifically, the Canon 3(C) test is: "Would a person of ordinary prudence in the judge's position knowing all of the facts known to the judge find that there is a reasonable basis for questioning the judge's impartiality?" Matter of Sheffield, 465 So. 2d 350, 356 (Ala.1984). The question is not whether the judge was impartial in fact, but whether another person, knowing all of the circumstances, might reasonably question the judge's impartiality whether there is an appearance of impropriety. Id.; see Ex parte Balogun, 516 So. 2d 606 (Ala.1987); see, also, Hall v. Small Business Administration, 695 F.2d 175 (5th Cir. 1983).
Nevertheless, we note that mandamus, which is the appropriate vehicle for challenging the failure of a trial judge to disqualify himself, see Ex parte Large, supra, is an extraordinary remedy that will not lie unless the petitioner can show a clear legal right to relief. Ex parte Army Aviation Center Federal Credit Union, 477 So. 2d 379 (Ala.1985). Therefore, for Duncan to demonstrate a clear right to the relief sought by the mandamus petition, he must show the appearance of impropriety by showing that the alleged bias, hostility, or prejudice is "personal" rather than "judicial":
"`The alleged bias and prejudice to be disqualifying must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.'"
Ex parte Large, supra, at 1210, quoting United States v. Grinnell Corp., 384 U.S. 563, 583, 86 S. Ct. 1698, 1710, 16 L. Ed. 2d 778 (1966) (quoted in Hartman v. Board of Trustees of the University of Alabama, 436 So. 2d 837 (Ala.1983)).
In this case, we cannot say, as a matter of law, that the trial judge's statements in and of themselves show bias, hostility, or prejudice toward Duncan; therefore, we cannot say that Duncan has demonstrated a clear legal right to have the trial judge remove himself. The trial judge's statements arose out of a judicial proceeding, not from an extrajudicial source; and although the trial judge's expressed opinions may have been better left unsaid, in our opinion the remarks he made do not show bias, hostility, or prejudice against Duncan arising from a "personal," i.e., extrajudicial, source.
Based on the foregoing, this Court does not find that Duncan made a clear showing that recusal is required.
WRIT DENIED.
MADDOX, SHORES, STEAGALL, KENNEDY, INGRAM and COOK, JJ., concur.
NOTES
[1] Duncan was tried and convicted of killing Cobb for $350,000 in insurance proceeds. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597394/ | 11 Mich. App. 351 (1968)
158 N.W.2d 72
AMERICAN MOTORCYCLE ASSOCIATION
v.
DEPARTMENT OF STATE POLICE.
Docket No. 4,445.
Michigan Court of Appeals.
Decided April 30, 1968.
Leave to appeal denied July 23, 1968.
Fraser, Trebilcock, Davis & Foster, for plaintiffs.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Stewart H. Freeman, Assistant Attorney General, and Edwin M. Bladen, Assistant Deputy Attorney General, for defendants.
Leave to appeal denied July 23, 1968. See 381 Mich. 763.
A.C. MILLER, J.
This is a review of a summary judgment[1] granted in a proceeding requesting a declaration of rights as to the constitutionality of the amendment[2] to the motor vehicle code requiring motorcyclists and riders to wear crash helmets.
Plaintiffs challenge the act on the grounds that it violates the due process and reserved powers *353 clauses of the Michigan Constitution[3] and the due process, equal protection, and right of privacy provisions of the Ninth and Fourteenth Amendments of the Constitution of the United States.[4]
The statute in question reads as follows:
"A person operating or riding on a motorcycle or motor driven cycle shall wear a crash helmet approved by the department of state police. The department shall promulgate rules for the implementation of this section in accordance with the provisions of Act No. 88 of the Public Acts of 1943, as amended, being sections 24.71 to 24.80 of the Compiled Laws of 1948, and subject to Act No. 197 of the Public Acts of 1952, as amended, being sections 24.101 to 24.110 of the Compiled Laws of 1948."
Failure to wear the helmet by either the driver or rider of a motorcycle subjects such persons to criminal penalties provided for violation of the motor vehicle code.
It is contended by the plaintiffs that the legislative concern is solely related to the safety of the motorcyclist and passenger and can have no possible relationship to the safety and well-being of other persons, much less the public at large. Based on the premise that the individual in our society is still master of his fate and captain of his soul, plaintiffs cite the following maxim:
"The maxims are, first, that the individual is not accountable to society for his actions, insofar as these concern the interests of no person but himself." John Stuart Mill, Utilitarianism, Liberty and Representative Government, E.P. Dutton & Co. Inc. (1930 ed, p 149).
*354 This is consistent with the time honored maxim:
"Sic utere tuo ut alienum non laedos." (So use your own that you do not injure that of another.)
This maxim has been the basis for a decision by a learned circuit judge of this State,[5] two trial level decisions in New York State,[6] one in the City of Seattle,[7] and an attorney general opinion, State of New Mexico.[8] There is support in the language of Michigan Supreme Court decisions for this maxim. In People v. Armstrong (1889), 73 Mich. 288, 295 (2 LRA 721), the Court said:
"Under our Constitution and system of government the object and aim is to leave the subject entire master of his own conduct, except in the points wherein the public good requires some direction or restraint."
General principles are enunciated in 2 Cooley, Constitutional Limitations (8th ed), p 1226 and in 16 Am Jur 2d, Constitutional Law §§ 359, 360, p 684, et seq., and § 287, pp 557-560.
The only case found in which the police power has been urged to require one to protect himself from himself is Mugler v. Kansas (1887), 123 US 623,(8 S Ct 273, 31 L. Ed. 205). In that case the prohibition law of Kansas was attacked as a deprivation of property without due process of law. The broad implications of such regulations were argued as follows (pp 659, 660):
"It is, however, contended, that although the State may prohibit the manufacture of intoxicating *355 liquors for sale or barter within her limits, for general use as a beverage, `no convention or legislature has the right, under our form of government, to prohibit any citizen from manufacturing for his own use, or for export, or storage, any article of food, or drink not endangering or affecting the rights of others.' The argument made in support of the first branch of this proposition, briefly stated, is, that in the implied compact between the State and the citizen certain rights are reserved by the latter, which are guaranteed by the constitutional provision protecting persons against being deprived of life, liberty, or property, without due process of law, and with which the State cannot interfere; that among those rights is that of manufacturing for one's use either food or drink; and that while, according to the doctrines of the Commune, the State may control the tastes, appetites, habits, dress, food, and drink of the people, our system of government, based upon the individuality and intelligence of the citizen, does not claim to control him, except as to his conduct to others, leaving him the sole judge as to all that only affects himself."
In this case the Court sustained the legislation because to permit individual manufacture "would tend to cripple, if it did not defeat, the effort to guard the community" (p 662) and ruled (p 663):
"No one may rightfully do that which the law-making power, upon reasonable grounds, declares to be prejudicial to the general welfare."
No such enforcement problem can be urged to sustain the legislation here in question.
Does a direct relationship to the public health, safety and welfare exist in the present case?
It is urged that the motorcycle is susceptible to loss of control because it has just two wheels and that other vehicles frequently pick up stones from *356 the road or roadside and throw them at the head of the cyclist causing him to lose control and cross the centerline or otherwise injure others. This was the basis of two New York rulings. In People v. Schmidt (1967), 54 Misc. 2d 702, 703, (283 N.Y.S.2d 290, 292), the court said:
"The remaining question concerns the power of the State to regulate individual conduct. The court takes judicial notice of certain dangers inherent in the operation of motorcycles as compared to that of automobiles. The danger of flying stones or other objects from the wheels of moving vehicles is a real one. A blow on the head of a cyclist not only could endanger himself, but be the cause of injury or death to other users of the public highways. To prevent such possible occurrences is a valid objective for legislative action under the general police power of the State."
And in People v. Bielmeyer (1967), 54 Misc. 2d 466, 469 (282 NYS2d 797, 801), the court reasoned:
"The old joke about the happy motorcyclist `the one with the bugs on his teeth' is not too funny when one hears or reads about instances where cyclists have been hit with hard-shelled beetles or bees and have lost control of their bikes, causing damage and injuries to others."
The New York judge pointed out that motorcyclists normally ride near the edge of the road. In Michigan the law so requires. (CLS 1961 § 257.660[a] [Stat Ann 1968 Cum Supp § 9.2360(a)].)
Nevertheless, such reasoning is obviously a strained effort to justify what is admittedly wholesome legislation.[9] If the purpose truly were to *357 deflect flying objects, rather than to reduce cranial injuries, a windshield requirement imposed on the manufacturer would bear a reasonable relationship to the objective and not vary from the norm of safety legislation customarily imposed on the manufacturer for the protection of the public rather than upon the individual.
The attorney general further contends that the State has an interest in the "viability" of its citizens and can legislate to keep them healthy and self-supporting. This logic could lead to unlimited paternalism. A further contention pertains to the doctrine of parens patriae, the special relationship of the State to youth, but this has little merit since the statute is not so limited.
There can be no doubt that the State has a substantial interest in highway safety. In Smith v. Wayne County Sheriff (1936), 278 Mich. 91, 96, the Court said:
"It is well settled that the legislature has the power to control and regulate the use of the highways."
but the difficulty with adopting this as a basis for decision is that it would also justify a requirement that automobile drivers wear helmets or buckle their seat belts for their own protection!
These arguments all prove too much. As stated in Shelton v. Tucker (1960), 364 U.S. 479, 488 (81 S. Ct. 247, 252, 5 L. Ed. 231) at 488:
"In a series of decisions this Court has held that, even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved."
*358 Reference has also been made to the labor law field. New York Central Railroad Company v. White (1917), 243 U.S. 188 (37 S. Ct. 247, 61 L. Ed. 667, Ann Cas 1917D, 629), and Withey v. Bloem (1910), 163 Mich. 419 (35 LRA NS 628). These laws have been sustained as a regulation of the employer for the benefit of the employee and are, therefore, clearly distinguishable.
The principle that a presumption of validity attaches to legislation is recognized. This was stated in Cady v. City of Detroit (1939), 289 Mich. 499, 505:
"A statute will be presumed to be constitutional by the courts unless the contrary clearly appears; and in case of doubt every possible presumption not clearly inconsistent with the language and the subject matter is to be made in favor of the constitutionality of legislation."
This presumption cannot be the basis for the courts to abdicate their responsibility. Legislation must meet the test set forth in the recent case of Grocers Dairy Company v. Department of Agriculture Director (1966), 377 Mich. 71, 76, quoting Roman Catholic Archbishop of Detroit v. Village of Orchard Lake (1952), 333 Mich. 389, 392, as follows:
"The test of legitimacy of the exercise of the police power is `the existence of a real and substantial relationship between the exercise of those powers in a particular manner in a given case and the public health, safety, morals, or the general welfare.'"
This statute has a relationship to the protection of the individual motorcyclist from himself, but not to the public health, safety, and welfare.
A discussion of the problem leads one to speculate on an analogy to suicide. This was a common-law *359 crime (4 Blackstone, Homicide [Chap 14 (Gavit's ed, 1940) p 830]. See 92 A.L.R. 1180), but it is not a statutory crime in Michigan. Our attorney general has opined that we did not adopt that part of the common law because of the abhorrent penalty. 1943 OAG 342.
Plaintiffs rely also upon the reserved powers under the Ninth Amendment to the United States Constitution and cite the recent decision[10] wherein Justice Goldberg, concurring, invoked this amendment to invalidate a Connecticut statute making the use of contraceptives a criminal offense. In holding that the use of contraceptives by the individual was a private right of the individual free from State coercion and control, he equated this right with the right "to be let alone". Justice Louis Brandeis stated this principle in his famous dissent in Olmstead v. United States (1928), 277 U.S. 438, 478, 479 (48 S. Ct. 564, 572, 72 L. Ed. 944, 956, 957, 66 A.L.R. 376, 391).
"The makers of our Constitution * * * sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone the most comprehensive of rights and the right most valued by civilized men. * * *
"Experience should teach us to be most on our guard to protect liberty when the government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."
*360 The precedential consequences of "stretching our imagination"[11] to find a relationship to the public health, safety and welfare, require the invalidation of this statute.
Reversed, but without costs, it being a public question.
McGREGOR, P.J., and J.H. GILLIS, J., concurred.
NOTES
[1] GCR 1963, 117.2.
[2] PA 1949, No 300, § 658(d), as added by PA 1966, No 207 (CL 1948, § 257.658[d] [Stat Ann 1968 Cum Supp § 9.2358[d]]).
[3] Mich Const 1963, art 1, §§ 17 and 23.
[4] US Const, Ams 9 and 14.
[5] Judge Charles Kaufman, Wayne Circuit #44835, People v. Duncan (1967).
[6] People v. Smallwood (1967), 52 Misc. 2d 1027 (277 NYS2d 429); and People v. Carmichael (1967), 53 Misc. 2d 584 (279 NYS2d 272).
[7] City of Seattle v. Zektzer, Seattle Municipal Court Department #3.
[8] OAG, N Mex Feb. 1, 1966, #66-15, p 19.
[9] Michigan State Police datum 1962-66 (Exhibit A) show a mortality rate of 11.5 for 10,000 registrations of motorcycles, as compared with 5.2 per 10,000 for all vehicles in the same period.
[10] Griswold v. Connecticut (1965) 381 U.S. 479, 494 (85 S. Ct. 1678, 1687, 14 L. Ed. 2d 510, 521).
[11] Judge Kaufman, supra, "Here it just affects the individual, and while the individual is a member of the general public, his activity in doing what has been determined by the legislature to be a crime cannot in any way affect the general public unless one would stretch his imagination." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597407/ | 3 So. 3d 1149 (2009)
Jeffrey Allen MUEHLEMAN, Appellant,
v.
STATE of Florida, Appellee.
No. SC05-353.
Supreme Court of Florida.
February 19, 2009.
*1152 Charles E. Lykes, Jr., Clearwater, FL, for Appellant.
Bill McCollum, Attorney General, Tallahassee, FL, and Scott A. Browne, Assistant Attorney General, Tampa, FL, for Appellee.
PER CURIAM.
Jeffrey Allen Muehleman appeals his death sentence for the first-degree premeditated murder of Earl Baughman imposed after resentencing proceedings. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. For the reasons set forth below, we affirm the sentence.
FACTS AND PROCEDURAL HISTORY
Jeffrey Allen Muehleman, who was eighteen years old at the time of the murder, was convicted in 1984 of the May 4, 1983, first-degree murder of ninety-seven-year-old Earl Baughman in Pinellas Park, Florida. After Muehleman's motion to suppress his confessions was denied, he pled guilty. After the first penalty phase hearing, at which Muehleman's counsel presented mitigation, including some mental mitigation, the jury recommended death by a ten-to-two vote. In the first sentencing order, the trial court found four aggravating factors and one mitigating factor, and sentenced Muehleman to death. On direct appeal after the first penalty phase hearing, Muehleman challenged his conviction and his death sentence, which were both affirmed. See Muehleman v. State, 503 So. 2d 310, 317 (Fla.), cert. denied, 484 U.S. 882, 108 S. Ct. 39, 98 L. Ed. 2d 170 (1987).[1] Upon postconviction review, however, this Court reversed the death sentence and ordered that a new penalty phase proceeding be held. Muehleman v. *1153 State, 833 So. 2d 774 (Fla.2002) (table). When the 2002 order was entered, Muehleman was pro se in this court, having been granted that right after a Faretta[2] hearing was held in the trial court during a period of relinquishment for determination of a public records issue.[3] The order reversing for a new penalty phase directed the trial court to "immediately advise Muehleman of his right to counsel."
The Second Penalty Phase Proceeding
The new penalty phase trial was held June 23-24, 2003. Muehleman represented himself after being advised of his right to counsel at numerous pretrial hearings and after another Faretta hearing was held on May 19, 2003. At the second penalty phase proceeding, the State presented many of the same witnesses presented in the first penalty phase. In addition to evidence of the circumstances of the murder, the State presented victim impact evidence without objectionJoanne Wood, the victim's granddaughter, and Jessie Battle, a grandson, who testified to the unique character of Earl Baughman and his loss to the family and the community.
The testimony and evidence established the following facts. Jeffrey Muehleman, age eighteen, was hired as a live-in helper by Earl Baughman, a ninety-seven-year-old man who lived alone in Pinellas Park. Calling himself Jeff Williams or Williamson, Muehleman took the job on Monday, May 2, 1983, which involved helping Baughman around the house and driving him on errands in Baughman's 1961 Cadillac. Muehleman drove Baughman's Cadillac to a garage apartment that Muehleman rented from Marie and Jeff Woodward and the Woodwards saw him driving the vehicle.
Virginia Peterson, a friend of Baughman, met Muehleman at the Baughman residence on Wednesday, May 4. Muehleman drove Baughman and Mrs. Peterson to the bank where Baughman cashed his social security check. Muehleman was aware that Baughman had cashed a check for about $500 and decided some time that day to rob him. Later that same day, Muehleman took Baughman to Mrs. Peterson's house where, unbeknownst to Muehleman, Baughman gave her all but about $150 of the money for safekeeping. Baughman's daughter, Virginia Battle, met Muehleman at Baughman's home on the evening of May 4, 1983.[4] He told her his name was Jeff Williams. She testified that everything seemed fine when she left.
Sometime that night, Muehleman decided it was time to rob and kill Baughman. He had attempted to enlist the help of a friend, Richard Wesley, in a plan to kill Baughman, but when Wesley did not show up, Muehleman proceeded alone. After Baughman went to bed, Muehleman stood outside Baughman's door for several hours thinking about what to do. He then took a frying pan from the kitchen and went into the bedroom where he struck Baughman *1154 five or six times with it, splattering blood around the bedroom. Muehleman later reported most of the details of the crime to a jail inmate, Ronald Rewis. He told Rewis that before he hit Baughman, he had set up the dining room table with coffee cups and crumbs to make it appear that Baughman had eaten breakfast there. He also told Rewis that when he hit Baughman, it made a "gong sound," and Muehleman laughed about it. At one point, Baughman was groaning and cried out, "Oh, Jeff."
When Baughman did not die after being hit repeatedly with the frying pan, Muehleman decided to strangle him. After he strangled Baughman for what Muehleman said "seemed like ten minutes," Baughman was still breathing, and Muehleman decided to suffocate Baughman with plastic newspaper bags. He stuffed two bags down Baughman's throat into his windpipe. After attempting to breathe through the plastic bags, Baughman finally died.
Muehleman wiped down the house for fingerprints, cleaned the rug, removed bloody sheets from the bed and remade it, hid a blood stain on the curtain, and burned the sheets and Baughman's wallet in the backyard. Muehleman tied a plastic bag around Baughman's head to "collect some of the blood," and placed him in the trunk of the Cadillac wrapped in a blanket. Muehleman took about $150 in cash, an engraved cigarette lighter, a hat, shoes, and some toiletries, all of which were later found by law enforcement officers in Muehleman's possession. Muehleman also took an 1886 silver dollar that Baughman kept to commemorate the year of his birth, which Muehleman traded to Mrs. Woodward for some cigarettes.
After watching TV until morning traffic started to pick up, Muehleman drove the Cadillac some distance into St. Petersburg to his garage apartment where he left the items he had taken. With Baughman in the trunk, Muehleman then drove around and finally left the Cadillac parked in front of an apartment complex where he locked the car, wiped it down to remove his fingerprints, took the keys, and returned home.
When Baughman could not be located by his friends and family that day, a photograph of him and a description of the Cadillac were publicized on the news. Marie Woodward, Muehleman's landlady, believed that Muehleman, whom she knew only as "Jeff," worked for the missing man and notified law enforcement on May 6, 1983. Muehleman's landlord, Jeff Woodward, also called the Sheriff's office on May 6 and told deputies he had seen his tenant driving the Cadillac. An anonymous caller also called on May 6 and reported to deputies that the suspect was leaving the area of the apartment. Deputies went to the garage where Muehleman had been staying and found him returning from the store on a bicycle. Muehleman attempted to flee from deputies and hid his face, but was detained. He told deputies his name was Ed Buchanan, a name with initials that matched those on Baughman's engraved lighter. After being given his Miranda[5] warnings, Muehleman admitted to working for Baughman and to taking some items from him, but denied knowing anything about his disappearance. Muehleman was arrested on charges of obstructing justice by false information on May 6 and continued to deny knowledge of Baughman's disappearance. He invoked his right to remain silent on May 9, 1983.
On May 14, 1983, the Cadillac was located and Baughman's body was found in the trunk in a moderately decomposed state. The current medical examiner testified *1155 that autopsy reports prepared by the former medical examiner in 1983 indicated Baughman died from suffocation, had a fractured hyoid bone in his throat and did not appear to have a skull fracture. Baughman still had two plastic bags stuffed down his windpipe. Baughman could have been alive for several minutes after the bags were forced down his throat.
Muehleman continued to proclaim his innocence in several interviews he initiated with detectives, but ultimately gave detectives two taped confessions after being advised of his Miranda rights each time. He also confessed to jail inmate Ronald Rewis, who taped part of the conversation.[6] While in jail, Muehleman approached Rewis and began to discuss many details of the killing, including some not made public. Rewis approached jail authorities and agreed to secretly record any future conversations with Muehleman, although he contended he never raised the subject himself. On June 8, 1983, Muehleman met with detectives, was informed of the evidence that had been gathered, and confessed in some detail. Muehleman told detectives that he did not decide to kill Baughman until after he had hit him with the frying pan and then realized he did not want Baughman to suffer. Muehleman was formally booked on a charge of first-degree murder. He also confessed to a St. Petersburg Times newspaper reporter, who printed the article on June 9, 1983. Muehleman requested another meeting with detectives on June 10, was again given Miranda warnings, and provided a final taped statement, adding more details of the crime.
At the penalty phase trial, Muehleman represented himself. He presented no mitigation testimony or evidence and, at the conclusion of the proceeding, the jury recommended a sentence of death by a ten-to-two vote. Even though Muehleman presented no mitigation, the State's sentencing memorandum outlined potential mitigation, including Muehleman's age of eighteen at the time of the crime and his good prison record. Pursuant to Muhammad v. State, 782 So. 2d 343 (Fla.2001),[7] the State also provided the trial court with a summary of the mitigation evidence in the record, which was presented in the first penalty phase, including Muehleman's medical and social problems from birth to the time of trial and the opinions of a clinical psychologist and a psychiatrist who testified in the first penalty phase.
Muehleman appeared pro se at the Spencer[8]hearing held on September 5, 2003. When offered appointed counsel, he again declined and did not present any mitigation evidence or testimony. The trial court entered its sentencing order on October 10, 2003, finding five aggravating factors (although two were merged) and one statutory mitigating factorthe age of the defendant at the time of the crime (eighteen years old). The court concluded that Muehleman's emotional age was not any different than his chronological age and gave the mitigator moderate weight. The aggravators found by the court were: (1) and (2) (merged) the murder was committed during a robbery; the murder was committed for financial gain; (3) the murder was committed to avoid lawful arrest or effect an escape; (4) the murder was especially heinous, atrocious or cruel *1156 (HAC); and (5) the murder was cold, calculated and premeditated (CCP).
The trial court found that "[t]he aggravating circumstances far outweigh the one mitigating circumstance of the Defendant's age (18) at the time he committed the crime." After weighing the aggravators against the mitigator, the trial court followed the jury's ten-to-two recommendation and imposed a sentence of death.
This Appeal
Muehleman raises five main issues in this appeal: (A) whether the trial court disobeyed this Court's order to immediately advise him of his right to counsel and whether the court correctly allowed Muehleman to represent himself; (B) whether the trial court reversibly erred in denying Muehleman's motion to restore assignment of the case to the original presiding judge; (C) whether the trial court reversibly erred in permitting members of the State Attorney's Office to read former testimony from now-unavailable witnesses who testified in Muehleman's first penalty phase proceeding; (D) whether jail inmate and State's witness Ronald Rewis was a state agent and whether his testimony was improperly admitted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966); and (E) whether cumulative error requires reversal. In addition to the claims asserted by Muehleman, the Court must also review the issue of proportionality of the death sentence.
ANALYSIS
Muehleman's Self-Representation
Muehleman contends that the trial court erred by failing to follow this Court's September 17, 2002, order, which reversed for a new sentencing proceeding and directed the trial court to immediately advise Muehleman that he had a right to be represented by appointed counsel during his resentencing. He also contends that the trial court failed to hold a proper Faretta[9] hearing before allowing him to waive counsel and represent himself at his resentencing. We find no merit in either of these contentions. The record reflects that the trial court adequately followed our September 17, 2002, directive that Muehleman be immediately advised of his right to counsel and that he was afforded a proper Faretta hearing before the commencement of the penalty phase trial.
As noted earlier, Muehleman was granted leave to represent himself by the trial court in an order dated March 31, 1999, which was entered after a Faretta hearing held during relinquishment of jurisdiction from this Court. Even so, a defendant's right to counsel applies at each crucial stage of the proceedings, and "[w]here the right to counsel has been properly waived, the State may proceed with the stage at issue; but the waiver applies only to the present stage and must be renewed at each subsequent crucial stage where the defendant is unrepresented." Traylor v. State, 596 So. 2d 957, 968 (Fla.1992); see also Ibar v. State, 938 So. 2d 451, 469 (Fla.2006); Fla. R.Crim. P. 3.111(d)(5) (2003) ("If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the defendant appears without counsel."). As explained below, Muehleman insisted on his right to *1157 represent himself throughout the resentencing proceedings, even though the trial court advised him of his right to appointed counsel at every critical stage in the proceedings and urged him to accept appointed counsel or standby counsel on several occasions due to the complexities of the proceeding and the serious nature of the possibility of a sentence of death. The record also reflects that the trial court held a proper Faretta hearing before allowing Muehleman to represent himself at his resentencing proceeding.
On December 12, 2002, at the first hearing held after remand, the judge began by indicating that "one of the first things we need to determine right off the bat is an attorney." Muehleman immediately cut off that line of discussion with his announcement that he was "not going to have one" and that he desired to represent himself. No formal Faretta hearing was held at that time, although the court did warn Muehleman that he was concerned about waiver of an attorney because Muehleman was facing another possible death sentence. At that same first pretrial hearing, the court also offered to appoint standby counsel for Muehleman, which he refused. The lengthy colloquy with Muehleman about appointed counsel, which occurred at the first hearing held after our order of remand, satisfied our directive that Muehleman be immediately advised of his right to counsel. Moreover, the trial court properly offered counsel to Muehleman at subsequent proceedings.
During the January 21, 2003, pretrial hearing the issue of waiver of counsel was again discussed briefly. At the February 12, 2003, hearing the judge asked Muehleman if he still wanted to represent himself and was advised that he did. The issue of standby counsel was again discussed, but none was appointed because Muehleman said he was looking into the possibility of private counsel. When the State asked the court to conduct another Faretta hearing, Muehleman immediately objected to any further Faretta inquiry, arguing that the prior Faretta inquiry "is still in force."
The State again asked that a Faretta inquiry be conducted at the April 15, 2003, pretrial conference and Muehleman again objected. He stated that the only thing that was required of the court was that he be offered assistance of counsel at each subsequent stage. Muehleman then stated, "The court has fulfilled it. It has been made clear that I am standing pro se." At that same April 15 hearing, the trial court expressed concern that Muehleman had claimed brain damage in the first penalty phase. Muehleman responded that "[i]t's waived" and "there is no present mental or medical reason that prohibits me from presenting this defense." Muehleman did not raise any issue of competency in the proceedings below or in this appeal. When the trial court asked Muehleman to confirm that he wanted to represent himself, Muehleman did so, and further expressly rejected any standby counsel, even though the judge advised him he would be at a tremendous disadvantage in the resentencing hearing without an experienced death penalty attorney available to assist him. When the State expressed concern about Muehleman's rejection of counsel, Muehleman again objected to any Faretta type inquiry.
On May 16, 2003, the State asked the court to appoint counsel to consult with Muehleman about his expressed intent not to offer any mitigation. Muehleman objected to any counsel being forced on him and said, "There is nothing wrong with my present mental competence." He made clear that he "opted this case out of state-provided representation." The trial court again warned Muehleman that if he presented no mitigation at the new penalty *1158 phase, he would have waived the right to ever present it.
At the next hearing, on May 19, 2003, the trial court again offered Muehleman appointed counsel and indicated it would conduct a full Faretta inquiry at that time. Muehleman objected to the Faretta inquiry and refused to answer many of the questions posed to him. Muehleman now contends the inquiry that was conducted was inadequate. We disagree.
At that May 19 hearing, the court advised Muehleman of his right to appointed counsel and asked him if he understood that an attorney would be appointed if he could not afford one. Muehleman would not respond. Muehleman did confirm having received a copy some years earlier of the charge against him, and said that he discussed the charge with the attorney representing him at that time. When asked if he understood the possible penalty was death, Muehleman confirmed that he knew the two possible penalties that could be imposed-death or life in prison. When asked if he had ever been diagnosed with or treated for a mental illness, he did not answer. The court asked Muehleman about his level of education and Muehleman again did not respond, but confirmed that he could read and write. Muehleman refused to answer many of the questions posed by the court, but it was apparent on the record, from his pro se verbal and written appearances before the court, that he was articulate, understood the charges and possible penalty, knew various aspects of the law pertaining to the penalty phase, and knew that he had both a right to appointed counsel and a right to represent himself. Muehleman was also advised that a lawyer would possess experience and knowledge necessary in the case and that Muehleman would be at a great disadvantage if he represented himself. When the issue of standby counsel was again raised by the court, Muehleman objected to appointment of standby counsel and thus none was appointed.
In addition to making the inquiry required by Faretta, the trial court also advised Muehleman that his stated "jurisdictional" objection to Judge Brandt Downey presiding over the case, rather than Judge Crockett Farnell, the original judge in the case, was not likely to be upheld on appeal and that Muehleman's non-participation on this basis would be a waiver of his right to present mitigation. Muehleman confirmed that he understood this. At the conclusion of the Faretta inquiry, the court stated on the record that Muehleman was competent to represent himself, understood the significance of his actions, understood the nature of the proceedings, and was entitled to represent himself.
On June 23, 2003, when the second penalty phase proceeding began with jury selection, the trial court again offered Muehleman the assistance of counsel, which he rejected. He was again offered, but rejected, counsel at the Spencer hearing on September 5, 2003.
Clearly, Muehleman insisted on the right to represent himself throughout the proceedings. Under the United States Supreme Court's ruling in Faretta and this Court's precedent, "once an unequivocal request for self-representation is made, the trial court is obligated to hold a hearing, to determine whether the defendant is knowingly and intelligently waiving his right to court-appointed counsel." Tennis v. State, 997 So. 2d 375, 378 (Fla.2008) (citing Hardwick v. State, 521 So. 2d 1071, 1074 (Fla.1988)). The Supreme Court stated in Faretta:
The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular *1159 case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law."
Faretta, 422 U.S. at 834, 95 S. Ct. 2525. Faretta also advised:
Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open."
422 U.S. at 835, 95 S. Ct. 2525 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S. Ct. 236, 87 L. Ed. 268 (1942)).
The United States Supreme Court in Indiana v. Edwards, ___ U.S. ___, 128 S. Ct. 2379, 171 L. Ed. 2d 345 (2008), reaffirmed the importance of Faretta as the "foundational `self-representation' case," because the "Sixth and Fourteenth Amendments include a `constitutional right to proceed without counsel when' a criminal defendant `voluntarily and intelligently elects to do so.'" Edwards, 128 S.Ct. at 2383 (quoting Faretta, 422 U.S. at 807, 95 S. Ct. 2525). Edwards makes clear, however, that the constitution permits states to insist upon representation by counsel for those defendants competent enough to stand trial "but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Id. at 2388.
Florida Rule of Criminal Procedure 3.111 also recognizes the right of an accused to represent himself or herself, and sets forth certain requirements that must be met before waiver of counsel may be found by the trial court. The rule provides in pertinent part:
(d) Waiver of Counsel.
....
(2) A defendant shall not be considered to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry has been made into both the accused's comprehension of that offer and the accused's capacity to make a knowing and intelligent waiver. Before determining whether the waiver is knowing and intelligent, the court shall advise the defendant of the disadvantages and dangers of self-representation.
(3) Regardless of the defendant's legal skills or the complexity of the case, the court shall not deny a defendant's unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel.
We noted in Tennis that the Supreme Court in Edwards gave trial courts more discretion in the context of a Faretta inquiry to examine a defendant's mental competency and mental capacity to represent himself and that "in certain instances a defendant may be precluded from exercising his or her right to proceed pro se after the trial court conducts a Faretta inquiry." Tennis, 997 So.2d at 378.[10]
*1160 The record reflects that the trial court's inquiry regarding Muehleman's demands to represent himself and the court's determination on the record met the requirements of both Faretta and rule 3.111, as modified by the considerations mandated by Edwards. The trial court ruled on the record, after the Faretta hearing held May 19, 2003, as follows:
Pursuant to Faretta, again I will make a finding, as did Judge Farnell back, I believe, it was in March of '99, make a finding that Mr. Muehleman is competent to represent himself, he understands the significance of his actions, he understands the proceedings that we are going to be going into, he is educated, he can read, he can write, and under Faretta, he is certainly entitled to represent himself.
The record in this case supports the judge's findings and shows that Muehleman was lucid, literate, articulate, and appeared to have a clear understanding of what he was facing. We also emphasize that Muehleman has not alleged either in the trial court or this Court, nor does the record provide any basis to find, that he suffered from a "severe mental illness to the point where [he was] not competent to conduct trial proceedings by [himself]." Edwards, 128 S.Ct. at 2388.
"[O]nce a court determines that a competent defendant of his or her own free will has `knowingly and intelligently' waived the right to counsel, the dictates of Faretta are satisfied, the inquiry is over, and the defendant may proceed unrepresented." Hernandez-Alberto v. State, 889 So. 2d 721, 729 (Fla.2004) (quoting State v. Bowen, 698 So. 2d 248, 251 (Fla.1997)). When that occurs, "[t]he court may not inquire further into whether the defendant `could provide himself with a substantively qualitative defense,' for it is within the defendant's rights, if he or she so chooses, to sit mute and mount no defense at all." Id. (citation omitted) (quoting Bowen, 698 So.2d at 251). Moreover, "[w]here a competent defendant `knowingly and intelligently' waives the right to counsel and proceeds unrepresented `with eyes open,' he or she ipso facto receives a `fair trial' for right to counsel purposes." Potts v. State, 718 So. 2d 757, 759-60 (Fla.1998) (quoting Bowen, 698 So.2d at 252).
The trial court's inquiry satisfied the constitutional predicate for allowing self-representation. It also provided the trial court with a proper basis to determine that Muehleman made a knowing and intelligent waiver of his right to appointed counsel. The record is replete with clear indications that Muehleman knew he had a right to appointed counsel, was offered counsel at every critical stage of the proceedings, and was advised of the risks of self-representation, but expressly and unequivocally rejected counsel in favor of self-representation at every turn. Muehleman made clear, over and over, that he did not want counsel forced upon him and that it was his personal and constitutional right to represent himself. He rejected any concern that he had a mental deficiency that could affect his ability to represent himself. Muehleman made the choice "with eyes open," see Faretta, 422 U.S. at 835, 95 S. Ct. 2525 confirming to the trial court that he knew he was gambling his life on that self-representation.
In this case, the fact that Muehleman was granted his request to represent himself, and subsequently chose to present no mitigation whatsoever, does not establish that the trial court erred in allowing him to follow that chosen path. The record supports a finding that Muehleman proceeded down that path voluntarily, knowing he was staking his life on the choices he made. Muehleman has demonstrated no error in the rulings of the trial court on *1161 this issue and, accordingly, relief is denied on this claim.
Claim of Error in Judicial Assignment
Muehleman next claims that the trial court erred in allowing the resentencing proceeding to be conducted by a circuit judge who did not hear the first penalty phase trial. Muehleman took the firm position in the trial court that Judge Brandt Downey, the judge who was assigned to handle criminal cases in the Sixth Judicial Circuit at the time of the resentencing, had no jurisdiction to preside over the resentencing proceeding because Judge Crockett Farnell presided over the first penalty phase proceeding and the postconviction proceedings.[11] Muehleman further refused, in large part, to "participate" in the proceedings below based on his erroneous belief that to do so would be waiving his jurisdictional claim. We disagree with Muehleman's contention and conclude that the issue of jurisdiction is not implicated. Further, no error has been shown in the court's refusal to reassign Judge Farnell to hear the case.
First, as to Muehleman's jurisdictional claim, this Court explained in Rodriguez v. State, 919 So. 2d 1252 (Fla.2005), that administrative orders of judicial assignment "do not limit the lawful authority of any judge of the court, nor do they bestow rights on litigants." Id. at 1278 (quoting Kruckenberg v. Powell, 422 So. 2d 994, 996 (Fla.5th DCA 1982)). At issue in Rodriguez was an internal court policy relating to judge assignments, while Muehleman complains here of an alleged violation of a rule promulgated by this Court, but the principle is the same. As a circuit judge, Judge Downey clearly had jurisdiction to preside over the case. Judicial assignment rules are "designed to promote judicial efficiency, so courts have wide discretion in this field." Rodriguez, 919 So.2d at 1278-79 (citing Jonathan L. Entin, The Sign of "The Four":. Judicial Assignment and the Rule of Law, 68 Miss. L.J. 369 (1998)). The Court further explained in Rodriguez that "a litigant must establish prejudice from any improper judicial assignment." 919 So.2d at 1278. Muehleman has not identified any prejudice that flowed from the chief judge's refusal to reassign Judge Farnell to preside over the resentencing. Muehleman's suggestion that Judge Farnell's "institutional knowledge" of the case was lost in the resentencing does not support a claim of prejudice. Because resentencing occurred after a new penalty phase jury trial, the sentence could not be based on a judge's prior knowledge of the facts of the case or of the aggravating or mitigating factors.
Muehleman also argues that Florida Rule of Criminal Procedure 3.700 is mandatory and requires the assignment of Judge Farnell to preside at his resentencing unless a showing of necessity is made for assignment of any judge "other than the judge who presided at the capital trial" *1162 to preside at a sentencing proceeding. We disagree. Rule 3.700(c)(2) provides:
(c) Sentencing Judge.
....
(2) Capital Cases. In any capital case in which it is necessary that sentence be pronounced by a judge other than the judge who presided at the capital trial, the sentencing judge shall conduct a new sentencing proceeding before a jury prior to passing sentence.
The rule simply requires that where a new judge is assigned to pronounce sentence in a capital case, there must be a new sentencing proceeding in front of a jury, which is exactly what occurred in this caseMuehleman was given a completely new sentencing proceeding in front of a jury. The rationale behind rule 3.700(c)(2) is that a substitute judge "who does not hear the evidence presented during the penalty phase of the trial must conduct a new sentencing proceeding before a jury to assure that both the judge and jury hear the same evidence." Ferguson v. Singletary, 632 So. 2d 53, 55 (Fla.1993). We earlier stated this same principle in Corbett v. State, 602 So. 2d 1240, 1244 (Fla. 1992), where we recognized the unique responsibilities of the sentencing judge in a capital case and concluded that "fairness in this difficult area of death penalty proceedings dictates that the judge imposing the sentence should be the same judge who presided over the penalty phase proceeding." Id. at 1244. Moreover, "this Court has consistently applied the `clean slate' rule to resentencing proceedings"... "[and a] resentencing is to proceed in every respect as an entirely new proceeding." Merck v. State, 975 So. 2d 1054, 1061 n. 4 (Fla.2007) (citation omitted) (citing Preston v. State, 607 So. 2d 404, 408-09 (Fla.1992)). Muehleman's resentencing proceeded as an entirely new proceeding, before a jury, in which Judge Downey heard all the evidence as to the circumstances of the murder and sentenced Muehleman accordingly.
Because Judge Downey had jurisdiction to preside over the resentencing, which was conducted as an entirely new proceeding in front of a jury, relief is denied on this claim.
Former Testimony of Unavailable Witnesses
Muehleman next contends that the trial court erred in allowing the State to present the former testimony of several witnesses who testified in the first penalty phase proceeding but who were found to be unavailable at the time of the resentencing. The State presented investigator Scott Hopkins who testified that he conducted a search for witnesses Virginia Battle, the victim's daughter, and Virginia Peterson, the victim's friend. He discovered they were both deceased and their death certificates were admitted into evidence. Hopkins and his assistants also conducted an extensive search for Ronald Rewis, the jailhouse informant who taped conversations with Muehleman. Hopkins testified that Rewis could not be located and had not been heard from by his family since 1991. Government records also showed no activity for him since 1991. Assistant State Attorneys were allowed to read the testimony of Peterson, Battle, and Rewis. Muehleman does not challenge the finding of unavailability of these witnesses but contends that the State should not have been allowed to present the testimony through witnesses who were associated with the State Attorney's Office. We find no error in the procedure followed by the trial court.
A trial court's decision to admit prior testimony is reviewed for abuse of discretion. See Thompson v. State, 995 So. 2d 532 (Fla.2d DCA 2008); Outlaw v. State, 269 So. 2d 403, 404 (Fla.4th DCA 1972). This standard is applied, however, *1163 with due regard for the principles set out in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). The Supreme Court in Crawford held that where an out-of-court testimonial statement is offered, it must be established that the defendant had the prior opportunity to cross-examine the declarant and that the witness must be shown to be unavailable. Id. at 68, 124 S. Ct. 1354. Section 90.804(2)(a), Florida Statutes (2003), similarly provided that former testimony may be received under certain circumstances, where the declarant is unavailable, as follows:
(a) Former testimony.Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
Similar principles were also reflected in Florida Rule of Criminal Procedure 3.640(b) (1992), which was in effect at the time of resentencing.[12] In the case of a retrial in a criminal case, as occurred here with the new penalty phase proceeding, rule 3.640 in effect in 2003 provided:
(b) Witnesses and Former Testimony at New Trial. The testimony given during the former trial may not be read in evidence at the new trial unless it is that of a witness who at the time of the new trial is absent from the state, mentally incompetent to be a witness, physically unable to appear and testify, or dead, in which event the evidence of such witness on the former trial may be read in evidence at the new trial as the same was taken and transcribed by the court reporter. Before the introduction of the evidence of an absent witness, the party introducing the evidence must show due diligence in attempting to procure the attendance of witnesses at the trial and must show that the witness is not absent by consent or connivance of that party.
This Court, in Ibar v. State, 938 So. 2d 451 (Fla.2006), also explained the circumstances under which prior testimony will be allowed into evidence, stating as follows:
The use of prior testimony is allowed where (1) the testimony was taken in the course of a judicial proceeding; (2) the party against whom the evidence is being offered was a party in the former proceeding; (3) the issues in the prior case are similar to those in the case at hand; and (4) a substantial reason is shown why the original witness is not available.
Id. at 464 (quoting Thompson v. State, 619 So. 2d 261, 265 (Fla.1993)). Those same factors were established in this case. The prior testimony was taken in Muehleman's first penalty phase, in a judicial proceeding, on the same issues, subject to cross-examination, and the unavailability of the witnesses was established.
Muehleman's complaint here is that the former testimony was read by persons associated with the State Attorney's Office. No statute or rule dictates who must be utilized to read former testimony. Muehleman does not allege, nor does the record demonstrate, that the witnesses acted as advocates or attorneys in the trial, or that they shaded the testimony or *1164 presented it in an improper fashion. Muehleman has cited only the fact that the readers were well-respected members of the State Attorney's office, and that an especially well-respected assistant state attorney read the testimony of Rewis, the jail inmate, thereby allegedly adversely affecting the jury's ability to evaluate the credibility of Rewis. However, this same complaint would appear to apply to anyone who might have read Rewis's testimony, other than Rewis himself. Because Muehleman has not demonstrated that the procedure followed by the trial court violated the provisions of section 90.804, Florida Statutes, or the principles set forth in Crawford, we deny relief on this claim.
Admissibility of Ronald Rewis's Testimony
Muehleman's next claim asserts error in the admission of the former testimony of witness Ronald Rewis, a jail inmate incarcerated with Muehleman before he was charged with the murder. Rewis's testimony, given at the first penalty phase and read into the record of the second proceeding, included incriminating statements that Muehleman made to him revealing details of the murder that had not been made public. The record establishes that Rewis was not recruited by law enforcement to obtain the statements, but did report Muehleman's statements to the authorities, who then requested that Rewis wear a body bug to record any further statements Muehleman might make. Rewis agreed and obtained a number of incriminating statements that were presented to the jury through his testimony. Muehleman objected to admission of this testimony on the grounds that the State should be precluded from presenting "false" testimony from this "jail agent." He now argues on appeal that Rewis's testimony violated his right against self-incrimination and right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
The claim Muehleman now makes is procedurally barred for two reasons. First, this specific contention was not made to the trial court below. See F.B. v. State, 852 So. 2d 226, 229 (Fla.2003) (stating that for an issue "to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below") (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982)). Second, and more importantly, the very same issue Muehleman presents in this appeal was raised and ruled upon in the direct appeal from the first penalty phase. The law of the case doctrine bars consideration of those issues actually considered and decided in a former appeal in the same case. Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 107 (Fla.2001). In the first appeal, we stated:
Muehleman's next claim involves an alleged violation of his sixth amendment right to counsel. He contends that fellow inmate Ronald Rewis became a state agent for the impermissible purpose of acquiring incriminating evidence which properly lay beyond the state's reach. Maine v. Moulton, 474 U.S. 159, 106 S. Ct. 477, 88 L. Ed. 2d 481 (1985); United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 65 L. Ed. 2d 115 (1980). We find in this case no violation of Muehleman's sixth amendment rights, as a review of the facts discloses that his incriminating admissions were not a product of a "`stratagem deliberately designed to elicit an incriminating statement.'" Miller v. State, 415 So. 2d 1262, 1263 (Fla.1982), cert. denied, 459 U.S. 1158, 103 S. Ct. 802, 74 L. Ed. 2d 1005 (1983) (quoting Malone v. State, 390 So. 2d 338, 339 (Fla.1980), cert. denied, 450 U.S. 1034, 101 S. Ct. 1749, 68 L. Ed. 2d 231 (1981)).
First, Muehleman, apparently eager to talk, approached Rewis and began to repeatedly attempt to discuss details of *1165 the crime with him. Second, after unsuccessfully attempting to dissuade Muehleman from "talking too much," Rewis approached the authorities on his own initiative. Bottoson v. State, 443, So.2d 962 (Fla.1983), cert. denied, 469 U.S. 873, 105 S. Ct. 223, 83 L. Ed. 2d 153 (1984); Barfield v. State, 402 So. 2d 377 (Fla.1981). Third, Rewis was at that point instructed not to initiate any conversations with the suspect. Finally, no evidence exists in the record that Rewis' efforts were induced by promises of any form of compensation. The contingent fee arrangement reflecting an improper relationship between police and informant in Henry is absent in this case.
Muehleman v. State, 503 So.2d at 314.
Rewis's testimony in the second penalty phase was identical to that presented on direct examination in the first penalty phase. Muehleman brought up the subject of the murder and persisted in talking about it even after Rewis attempted to dissuade him from doing so. The State did not approach him with a request that he get close to Muehleman to obtain the statements, and there is no evidence that Rewis was promised anything. Just as this Court found in the first appeal, Rewis's testimony was not the result of a State stratagem, Rewis was "instructed not to initiate any conversations with the suspect," and "no evidence exists in the record that Rewis' efforts were induced by promises of any form of compensation." Muehleman, 503 So.2d at 314. In Rolling v. State, 695 So. 2d 278, 291 (Fla.1997), we explained that whether a violation such as alleged here has occurred "turns on whether the confession was obtained through the active efforts of law enforcement or whether it came to them passively." We also explained our holding in Muehleman's direct appeal by stating:
Likewise, in Muehleman v. State, we interpreted the "deliberately elicited" standard in terms of its plain meaning and found that the defendant's right to counsel had not been violated because his statements were not a product of a "stratagem deliberately designed to elicit an incriminating statement."
Rolling, 695 So.2d at 291 (citations omitted) (quoting Muehleman, 503 So.2d at 314).
We recognize that "[t]his Court has the power to reconsider and correct erroneous rulings [made in earlier appeals] in exceptional circumstances and where reliance on the previous decision would result in manifest injustice." Parker v. State, 873 So. 2d 270, 278 (Fla.2004) (quoting State v. Owen, 696 So. 2d 715, 720 (Fla.1997)). However, Muehleman has provided no basis upon which we can conclude our prior ruling was erroneous or should be revisited.
Because this claim is procedurally barred by Muehleman's failure to raise it below and also by this Court's decision in the first direct appeal, and because no exceptional circumstances or manifest injustice have been shown to require reversal of that ruling, relief is denied on this claim.
Cumulative Error
Finally, Muehleman claims that the cumulative effect of the alleged errors mandates that his sentence be reversed for a new penalty phase. Because Muehleman's claims are individually without merit or are procedurally barred, his claim of cumulative error claim must fail. See Israel v. State, 985 So. 2d 510, 520 (Fla.2008) ("Because the alleged individual errors are without merit, the contention of cumulative error is similarly without merit."); see also Williams v. State, 987 So. 2d 1, 14 (Fla. 2008); Pooler v. State, 980 So. 2d 460, 473 (Fla.), cert. denied, ___ U.S. ___, 129 S. Ct. 255, 172 L. Ed. 2d 192 (2008).
*1166 Proportionality of the Death Sentence
Muehleman does not challenge the proportionality of his death sentence, but this Court reviews a death sentence for proportionality "regardless of whether the issue is raised on appeal." England v. State, 940 So. 2d 389, 407 (Fla.2006). See also Fla. R.App. P. 9.142(a)(6). Because the death penalty is "reserved only for those cases where the most aggravating and least mitigating circumstances exist," Terry v. State, 668 So. 2d 954, 965 (Fla. 1996), we make a "comprehensive analysis in order to determine whether the crime falls within the category of both the most aggravated and the least mitigated of murders, thereby assuring uniformity in the application of the sentence." Anderson v. State, 841 So. 2d 390, 407-08 (Fla.2003) (citation omitted). Our review is not a quantitative analysis of the number of aggravators versus the number of mitigators, but entails "a qualitative review" of the basis for each aggravator and mitigator. Urbin v. State, 714 So. 2d 411, 416 (Fla.1998).
In reviewing the sentence for proportionality, this Court will accept the jury's recommendation and the weight assigned by the trial judge to the aggravating and mitigating factors. See Bates v. State, 750 So. 2d 6, 12 (Fla.1999). The trial court found the following aggravators: (1) and (2) (merged) the murder was committed during a robbery and the murder was committed for financial gain; (3) the murder was committed to avoid lawful arrest or effect an escape; (4) the murder was especially heinous, atrocious or cruel (HAC); and (5) the murder was cold, calculated and premeditated (CCP). The trial court weighed these aggravators against the one statutory mitigating factor of the young age of the defendant at the time of the murder and concluded that, based on the circumstances of the murder, the aggravators vastly outweighed the one statutory mitigator, thereby justifying the sentence of death. We agree.
The circumstances of the murder in this case show that Baughman was killed so that Muehleman could steal approximately $150 and various small items including a hat, shoes, a monogrammed lighter, and an 1886 silver dollar. Muehleman also admitted he took the job working for Baughman to steal money to return to Illinois, thereby establishing aggravators (1) and (2). Muehleman admitted that he killed Baughman because the victim could identify him; and he tried to conceal the blood-stained mattress and burned the bloody linens and Baughman's wallet. The evidence showed that even before the murder, Muehleman set the table to make it appear the victim had eaten breakfast. Muehleman cleaned up the crime scene, concealed the body in the car trunk, and moved the car and body to avoid suspicion. These facts support aggravator (3) found by the trial court.
The murder was not instantaneous. Muehleman admitted hitting Mr. Baughman with a cast iron frying pan, splattering blood around the room, while the victim pled with him to no avail. Muehleman then strangled Mr. Baughman for a lengthy period of time, which did not succeed in killing him, so Muehleman shoved plastic bags down his throat. Even then, the victim struggled and continued to try to breathe for several more minutes. These facts show that the murder was especially heinous, atrocious or cruel, as found in aggravator (4). Finally, the murder was carefully planned in advance. Muehleman tried to enlist the help of a friend in advance of the murder and he admitted to thinking about killing the victim for several hours while waiting for him to fall asleep. After trying to suffocate Baughman with a plastic bag, Muehleman watched as the victim attempted to keep breathing. Clearly, the murder was cold, *1167 calculated and premeditated, as found in the trial court's aggravator (5).
The Court has affirmed the death sentence in cases involving similar type murders, in which similar aggravation but even more mitigation was present. For instance, in Hoskins v. State, 965 So. 2d 1 (Fla.2007), cert. denied, ___ U.S. ___, 128 S. Ct. 1112, 169 L. Ed. 2d 827 (2008), the eighty-year-old victim was bludgeoned, strangled and raped. The trial court in Hoskins found HAC, which is "one of the most serious aggravators in the statutory sentencing scheme," along with two other aggravators. Id. at 22 (quoting Douglas v. State, 878 So. 2d 1246, 1262 (Fla.2004)). After weighing the aggravators against one statutory mitigator, mental age, and fifteen nonstatutory mitigators, the trial court found that any one aggravator outweighed the mitigators and sentenced Hoskins to death. Id. at 6-7. This Court found the sentence proportionate and affirmed.
In Beasley v. State, 774 So. 2d 649 (Fla. 2000), also a bludgeoning death, the trial court found HAC, financial gain, and commission in course of a robbery. This was weighed against substantial statutory and nonstatutory mitigation. This Court found the death sentence proportionate and affirmed. Id. at 673. In Salazar v. State, 991 So. 2d 364 (Fla.2008), petition for cert. filed, (U.S. Dec. 11, 2008) (No. 08-7801), the defendant attempted to suffocate the victim for a period of time by taping a plastic bag to her head, but she was ultimately shot because it was taking too long. Id. at 369.[13] The trial court found that the aggravators of prior violent felony, HAC, CCP and commission during a burglary outweighed the six nonstatutory mitigators. On appeal, this Court affirmed the death sentence, finding it proportionate. Id. at 380.
Finally, in LaMarca v. State, 785 So. 2d 1209 (Fla.2001), the defendant waived counsel and waived presentation of any mitigation at the penalty phase of his trial. The trial court found only one aggravator (prior violent felony) and some insubstantial nonstatutory mitigation. Id. at 1216. On appeal, this Court found the sentence proportionate under the specific facts of the case. Id. at 1217.
The instant case involved bludgeoning, strangling, and finally suffocating Earl Baughman. The trial court found that the weighty aggravator of HAC, along with the CCP, financial gain, and avoid arrest aggravators, when weighed against only one statutory mitigator, supported a sentence of death. We agree and conclude that the death sentence in this case is proportionate.
CONCLUSION
After a complete review of all the issues raised by Muehleman, and after our own independent review of the proportionality of the sentence, we affirm Muehleman's sentence of death.
It is so ordered.
WELLS, PARIENTE, LEWIS, CANADY, and POLSTON, JJ., concur.
QUINCE, C.J., recused.
LABARGA, J., did not participate.
NOTES
[1] Muehleman raised the following issues on direct appeal: (1)(A) the trial court erred in refusing to suppress statements Muehleman made to law enforcement authorities, to alleged state agent Ronald Rewis, and to reporter Christopher Smart, as the statements were the fruit of an illegal warrantless search, and some were obtained in violation of Muehleman's right to counsel and right to remain silent; (1)(B) the trial court erred in refusing to suppress physical evidence obtained from Muehleman and his garage apartment, as such evidence was the fruit of an illegal arrest, and was obtained without a warrant in violation of the Fourth Amendment; (2) Muehleman's conviction and sentence should be vacated, as they were predicated upon inadmissible evidence; (3) Muehleman's absence from portions of the proceedings below violated his constitutional right to be present; (4) the trial court erred in allowing the State to introduce during the defense's case a document entitled "Juvenile Social History Report," which was hearsay and contained prejudicial and irrelevant material, invaded the province of the jury, and violated the trial court's pretrial ruling on discovery; (5) the trial court erred in allowing the State to present during its case in rebuttal evidence of other crimes allegedly committed by Muehleman; (6) the trial court erred in permitting the State to introduce as rebuttal evidence the transcript of a taped interview with Richard Wesley; (7) the trial court erred in restricting Muehleman's presentation of evidence in mitigation and evidence relevant to the credibility of a key State witness; (8) the trial court erred in permitting the prosecutor to make a number of improper and prejudicial comments to the jury during his closing argument; (9) the trial court erred in giving incomplete and misleading instructions to the jury; and (10) the trial court erred in sentencing Muehleman to death because the sentencing weighing process included improper aggravating circumstances and excluded existing mitigating circumstances, rendering the death sentence unconstitutional under the Eighth and Fourteenth Amendments. Muehleman presented an additional issue via a supplemental brief claiming that his death sentence must be vacated because the record did not reflect that the trial court made the requisite findings of fact as to aggravating and mitigating circumstances prior to orally imposing the death sentence, and the trial court did not file written findings as to aggravating and mitigating circumstances until after it lost jurisdiction.
[2] Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
[3] In 1998, the trial court dismissed the Capital Collateral Representative as not providing competent representation and new counsel was appointed. Several months after being given new counsel, Muehleman sought a Faretta hearing, which was held March 30, 1999. He was granted leave to represent himself by order of the trial court dated March 31, 1999. The relinquishment and public records litigation continued with Muehleman acting pro se until the case returned to this Court on May 9, 2001. The appeal resulted in the Court entering a September 17, 2002, order reversing the death sentence for an entirely new penalty phase.
[4] Mrs. Peterson and Mrs. Battle died before the resentencing and their testimony from the first trial was read into evidence at the resentencing.
[5] Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
[6] Rewis could not be located and was found to be unavailable for the resentencing. His testimony was read into the record at the second penalty phase hearing.
[7] In Muhammad, we emphasized "the duty of the trial court to consider all mitigating evidence `contained anywhere in the record, to the extent it is believable and uncontroverted.'" 782 So.2d at 363 (quoting Farr v. State, 621 So. 2d 1368, 1369 (Fla.1993)).
[8] Spencer v. State, 615 So. 2d 688 (Fla.1993).
[9] Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975) (holding that a trial court may not impose counsel on a "literate, competent, and understanding" defendant who has voluntarily waived his or her right to counsel). "[W]hen there is an unequivocal request for self-representation, a trial court is obligated to hold a Faretta hearing to determine if the request for self-representation is knowing and intelligent." Tennis v. State, 997 So. 2d 375, 380 (Fla.2008).
[10] In light of the holding in Edwards, the Court now has under consideration an amendment to subdivision (d)(3) of rule 3.111, which would require the trial court, before finding a knowing and intelligent waiver of counsel, to determine that the defendant does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself. See In re Amendments to Florida Rule of Criminal Procedure 3.111, No. SC08-2163 (Fla. petition filed Nov. 20, 2008). All other provisions of rule 3.111 would presumably remain unchanged.
[11] Muehleman filed Defendant's Motion for Chief Judge to Restore Proper Assignment of Original Presiding Judge to Case on January 21, 2003. The motion alleged in part that, without notice to the defense and without a valid reason, Judge Brandt Downey had "hijacked the assignment of the above captioned Capital case from its properly assigned original trial judge, and took it as his own case." The motion sought the reassignment of Judge Farnell, the judge who presided in the first penalty phase and in the postconviction proceedings. The Chief Judge, David Demers, entered an order on February 6, 2003, denying the requested reassignment of Judge Farnell to this case and stating that Judge Farnell had since rotated out of Division C, that Judge Downey was currently assigned to Division C, and that the proceeding was a new sentencing proceeding. The order stated that both judges were fully qualified to handle this case and there was no legal requirement that Judge Farnell be reassigned to the case.
[12] Rule 3.640 was amended in 2007 to remove subsection (b). See In re Amendments to the Florida Rules of Criminal Procedure (Three Year Cycle), 942 So. 2d 407 (Fla.2006). This subsection was found to have been superseded by the subsequently enacted evidence code, chapter 90, Florida Statutes, which addresses this subject. Id. at 408.
[13] Two victims were involved and both had bags taped to their heads and were shot, although one victim survived. Salazar, 991 So.2d at 369. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597439/ | 3 So.3d 326 (2009)
FORTNER
v.
STATE.
No. 2D07-5813.
District Court of Appeal of Florida, Second District.
February 13, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597443/ | 638 So.2d 706 (1994)
Lyle O. FOGLEMAN, Sr., Plaintiff-Appellant,
v.
CAJUN BAG & SUPPLY COMPANY, Defendant-Appellee.
No. 93-1177.
Court of Appeal of Louisiana, Third Circuit.
June 15, 1994.
*707 Glennon P. Everett, Crowley, for Lyle O. Fogleman Sr.
Kenneth O'Neil Privat, Crowley, for Cajun Bag & Supply Co.
Before KNOLL, COOKS and WOODARD, JJ.
KNOLL, Judge.
In this suit, plaintiff, Lyle Fogleman, alleges that the defendant, Cajun Bag & Supply Co. (Cajun), failed to pay him $18,000 in commissions he earned from selling Cajun's products before leaving Cajun's employ. The trial court found that the commissions were not owing and dismissed the suit. Mr. Fogleman appeals, claiming the trial court erroneously failed to apply the doctrine of quantum meruit.
FACTS
Mr. Fogleman began working for Cajun in 1986. For the first 18 to 24 months, he was paid a salary plus his expenses. After this time period, Mr. Fogleman was paid on the basis of straight commissions (i.e., his only income was from commissions). To cover his expenses, Mr. Fogleman received a bi-monthly draw against his commissions.[1] In early 1992, Cajun conditioned Mr. Fogleman's continued employment on his signing an employment contract. Apparently, the contract contained a non-competition clause Mr. Fogleman found unacceptable. His employment with Cajun ended on January 17, 1992. At trial, the parties placed much emphasis on how and when commissions were earned. Mr. Jules Maraist, owner and manager of Cajun, testified that it was the policy of Cajun that commissions were earned only when the products were shipped and invoiced, not when the customer placed the order. This appeal concerns whether Mr. Fogleman may recover commissions for orders solicited by him before leaving Cajun on January 17, 1992, but not shipped and invoiced until after that date.
In finding Mr. Fogleman was not entitled to the commissions, the trial court concluded there was no contract governing the disposition of commissions in the event of a salesman's termination. While failing to frame its oral reasons within any explicit legal theory, the trial court noted two factors it believed weighed against Mr. Fogleman recovering. First, it found Mr. Fogleman, in the past, had received commissions for sales he did not solicit. Secondly, the trial court found Mr. Fogleman failed to perform certain duties required of salesmen employed by Cajun.
For reasons that follow, we reverse the judgment of the trial court and award Mr. Fogleman the $18,000 in commissions.
*708 THEORY OF RECOVERY
Fogleman asserts in his only assignment of error that "the trial court failed to apply the equitable principal [sic] of quantum meruit." Before we address the merits of plaintiff's claim, we think it appropriate to discuss the exact status of quantum meruit in Louisiana jurisprudence.
Quantum meruit has existed in our jurisprudence since the early part of the last century. See Quantum Meruit in Louisiana, 50 Tul.L.Rev. 631, citing Morgan v. Mitchell, 3 Mart. (n.s.) 576 (La.1825). However, this theory of common law origin has not been without its detractors. In Oil Purchasers, Inc. v. Kuehling, 334 So.2d 420 (La. 1976), the Supreme Court commented:
"Quantum meruit is a `striking example of an ill-considered importation from the common law ...' It supplied a need in early common law and has been expanded in our jurisprudence. However, its lack of underlying theoretical basis has `led inexorably to confusion and inconsistency'" Id. at 425 (Citations omitted).
Despite this criticism, the circuit courts continued to routinely apply quantum meruit to a large number of differing factual situations.
The Supreme Court most recently addressed the status of quantum meruit in Morphy, Makofsky & Masson v. Canal Place, 538 So.2d 569 (La.1989). Morphy involved a payment dispute between a sub-contractor and a "sub-sub-contractor". The trial court and the court of appeals found no contract existed, but made an award under "a theory of unjust enrichment or quantum meruit." The lower courts awarded the plaintiff only $45,000, finding the defendant was not enriched by the full $78,613 that the plaintiff was claiming as the fair value of its services. In overturning the lower courts' ruling, the Supreme Court found that a contract did exist, but a price had not been agreed upon. Since a contract did exist, the plaintiff should have been awarded the fair value of its services, $78,613, and not limited to the value by which the defendant was enriched, as a plaintiff would be if recovering under quantum meruit or unjust enrichment. The Court went on to distinguish two situations where Louisiana courts had applied quantum meruit. One situation is where a contract actually exists, and the court is simply supplying a price. The other is where no contract exists, and the court must supply a substantive basis for recovery.
"[T]he Civil Code articles on Obligations have long furnished the principles for interpreting contracts ambiguous only with regard to compensation or price for agreed upon services. Unfortunately for the purity of our civilian concepts, the cases in our jurisprudence which have applied these codal provisions have often referred to this reasonable value of services or equitable ascertainment of compensation or price as "quantum meruit" or an action in quantum meruit. Quantum meruit may well have been an ill-considered importation from the common law (see that criticism in Oil Purchasers v. Kuehling, 334 So.2d 420 (La. 1976)); however, no great harm follows from that importation if we understand that numerous cases in our jurisprudence have used "quantum meruit" as a descriptive term, descriptive of the equitable principles of contract interpretation enunciated in La.Civ.Code arts. 1903 and 1965 [now art. 2055], which were the substantive law bases for the decisions in these cases.
A problem has arisen in our jurisprudence only when the courts have moved from quantum meruit as simply a measure of compensation or price unstated in a contract, to quantum meruit, the common law substantive law claim geared to equity and unjust enrichment, something of a counterpart to the civilian actio de in rem verso." Id. at 574 (Citations and footnotes omitted).
In light of the above, we believe quantum meruit, as a substantive basis for recovery, is now viewed with disfavor by Louisiana law. This conclusion has also been reached by the United States Fifth Circuit. See SMP Sales Management, Inc. v. Fleet Credit Corp., 960 F.2d 557 (5th Cir.1992), wherein the court, citing Morphy, stated:
"Although both the district court and the parties relied on quantum meruit as a substantive basis of recovery, it is not recognized as such in Louisiana but is only used as a measure of compensation or *709 price in quasi-contract or when none is stated in a contract."
Therefore, where a plaintiff seeks to employ a quantum meruit theory as a substantive ground for recovery, we believe the analysis is more properly made under the doctrine of actio de in rem verso or unjust enrichment.[2] While the result reached under quantum meruit and unjust enrichment may often be the same, see Howell v. Rhoades, 547 So.2d 1087 (La.App. 1 Cir.1989), unjust enrichment is firmly rooted in our Civil Code and has well defined elements. As explained in Kirkpatrick v. Young, 456 So.2d 622 (La. 1984):
"In 1967 this court recognized that the moral maxim contained in La.C.C. art. 1965 [now art. 2055] "that no one ought to enrich himself at the expense of another" provides the basis for an action for unjust enrichment. Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). We have also enumerated the five prerequisites necessary to support such an action: 1) there must be an enrichment, 2) there must be an impoverishment, 3) there must be a causal relationship between the enrichment and the impoverishment, 4) there must be an absence of justification or cause for the enrichment or impoverishment, and 5) there must be no other remedy at law." Id. at 624.
Furthermore, by adhering to the traditional civilian concept of unjust enrichment, we attempt to alleviate any "confusion and inconsistency", see Oil Purchasers, Inc., supra, that may arise from the use of quantum meruit.
UNJUST ENRICHMENT
Since a plaintiff may not recover under unjust enrichment unless he has no other legal recourse, we first address whether there exists no other remedy at law. This element generally reduces to whether there exists a contract under which the plaintiff may recover. See Morphy and Howell, supra.
It is undisputed that prior to Mr. Fogleman leaving Cajun's employ, the parties had not discussed what would become of commissions arising out of orders placed before the salesman left Cajun's employ, but not delivered until after he left. However, Mr. Fogleman testified that on the day he left Cajun, January 17, 1992, Mr. Maraist assured Mr. Fogleman that he would receive commissions for all orders credited to him as of January 17, 1992. Mr. Maraist disputes this. The trial court's oral reasons for judgment clearly state that it found there was no contract governing what would become of the disputed commissions upon termination of the employment relationship. Reviewing the record, we can find no clear error in this determination. Since there was no contract under which Mr. Fogleman could recover, the requirement that no other remedy at law exists is fulfilled.
Next, because the elements of impoverishment, enrichment, and the causal relationship between the two are so inter-related, we address these elements together. There was no dispute that Mr. Fogleman was not paid the commissions and that Cajun retained them, while benefiting from the sales underlying the commissions. Moreover, the direct and obvious connection between the two obviates the need for any discussion of the casual relationship between the enrichment and the impoverishment.
However, while the impoverishment and enrichment may be obvious, the amount properly recoverable cannot be so readily determined. The parties stipulated the amount of the commissions for orders credited to Mr. Fogleman's account before January 17, 1992, but not invoiced and shipped until after that date was $18,000. While Cajun stipulated that this would be the proper amount of recovery if the court found a contract between the parties, Cajun denied this would be the proper amount under a quasi-contractual theory of recovery.
*710 Louisiana jurisprudence, when formulating a substantive theory of recovery in the absence of a contract (regardless of the theory being denominated actio de in rem verso, unjust enrichment, or even "quantum meruit"), has consistently applied a two-fold limitation to the recovery. First, the plaintiff cannot recover more than the actual value of his services and materials, plus a fair profit; and secondly, the plaintiff cannot recover more than defendant was enriched by plaintiff's services. See Custom Builders & Supply, Inc. v. Revels, 310 So.2d 862 (La.App. 3 Cir.1975), citing Planiol, Chapter III, Section 93B (Unjust Enrichment). See also Swiftships, Inc. v. Burdin, 338 So.2d 1193 (La. App. 3 Cir.1976).[3]
Furthermore, we believe these limitations were implicitly approved in Morphy. In dictum, the Morphy court noted that if it had not found a contract between the sub-contractor and the sub-sub-contractor, then the sub-sub-contractor would not have recovered the full $78,613 it was claiming, since the sub-contractor was not enriched by this amount. The Morphy court reasoned that the sub-contractor had in-house personnel capable of performing the work the sub-subcontractor performed, but at a substantially lower price than the sub-sub-contractor charged. However, since the Morphy court did in fact find a contract between the parties, it was unnecessary to apply the limitation to the case before it.
Turning to the case sub judice, since we have found an impoverishment and the absence of a contract, we must consider these limitations in determining Mr. Fogleman's recovery. In determining the actual value of Mr. Fogleman's services, plus a fair profit, we note "[t]here is no specific test which must be applied to determine the reasonable value of such services. It is a matter of equity depending upon the circumstances of each case." Jones v. City of Lake Charles, 295 So.2d 914, 917 (La.App. 3 Cir.1974). The $18,000 figure is based on the commission rate that existed between Mr. Fogleman and Cajun as of January 17, 1992. The record indicates this was the arrangement between the parties for 3 to 4 years prior to Mr. Fogleman leaving Cajun. We believe the financial history of the parties would be the best measure of the reasonable value and fair profit to which Mr. Fogleman is entitled under the circumstances of this case. Therefore we find $18,000 to be the appropriate value of Mr. Fogleman's services.
In comparing the value of Mr. Fogleman's services to the amount by which the defendant was enriched, Cajun can clearly be distinguished from the contractor in Morphy. There is no evidence Cajun could have obtained the equivalent of Mr. Fogleman's services from a less expensive source. Indeed, the record indicates that other salesmen at Cajun were compensated in the same manner as Mr. Fogleman at that time. Additionally, it is the defendant's burden to prove the amount claimed by the plaintiff exceeds the amount by which the defendant is enriched. Swiftships, supra. Since Cajun has plainly not carried this burden, there is no limitation on Mr. Fogleman's right to recover $18,000.
Finally, we address whether there exists an absence of justification or cause for the enrichment. One instance where such an enrichment may be justified is where there is a valid juridical act between the impoverishee and the enrichee or between a third party and the enrichee. Edmonston v. A-Second Mortgage Co., 289 So.2d 116 (La.1974). For example, in SMP Sales Management, supra, an unsecured creditor claimed that a secured creditor was unjustly enriched, as the unsecured creditor apparently took some actions which helped preserve the collateral which the secured creditor ultimately foreclosed on and sold. The court, in denying the unsecured creditor's claim, noted that even if there were an enrichment, the security agreement itself was justification for such enrichment.
Additionally, courts have held that the actions of the enrichee may present justification for the enrichment. In Creely v. Leisure *711 Living, Inc., 437 So.2d 816 (La.1983), a real estate agent sued a home builder for the commission on a home sold by the builder. The court noted that while the agent had sold other houses for the builder, the buyer for the house in question was discovered by the builder. The court further commented:
"His enrichment [the builder's], if one chooses to call it that, was the result of his investment of skill, time, labor and financing and his good fortune in his finding a buyer ... [T]he profit that the builder enjoyed on the sale of his property after expending time, money, and energy to complete construction of the house is not a windfall, nor somehow undeserved. Rather it is a profit to which he is properly entitled." Id. at 822-823.
Therefore justification for the enrichment may also arise from a party's own efforts in securing the enrichment.
In the case sub judice, none of the parties have suggested the existence of a juridical act that would justify an enrichment of Cajun. However, Cajun argues in brief and the trial court found, that not paying Mr. Fogleman the commissions was justified. This justification was based on the assertion that salesmen for Cajun would sometimes receive commissions for orders originating from a salesman's territory, even if the salesman had not solicited the business of that particular customer. While there was general testimony to this effect, there was no evidence that any part of the commissions in dispute were earned in this manner. Nor was there evidence as to what amount, if any, Mr. Fogleman had received from this practice in the past. Absent a specific showing of how and to what degree Mr. Fogleman benefited from these "unearned" commissions, this evidence is not sufficient to justify Cajun withholding the commissions in dispute.
The trial court also found that salesmen might be obligated to perform certain collection or customer complaint duties after soliciting a sale. Since Mr. Fogleman could not perform these duties after leaving Cajun's employ, the trial court found this to be an additional justification for Cajun's refusal to pay the commissions.
The testimony as to what duties a salesman might have after soliciting a sale was unclear and contradictory. While Mr. Fogleman testified that he may have handled post-sale problems "a couple of times," Cajun's director of marketing services, Mark Arnold, testified that typically he [Arnold] handled these duties and not the salesmen. Additionally, it is difficult to understand how collection problems and customer complaints could effect a salesman's commissions. According to Mr. Maraist, Cajun's policy was to consider commissions earned when the order was shipped; thus the commission was owing to the salesman before any of these problems could arise. Finally, there is no evidence of record indicating that there were in fact any problems concerning the sales on the bags underlying the disputed commissions. Therefore we find no justification for the enrichment of Cajun by withholding the commissions in question. The trial court was clearly wrong in holding otherwise.
CONCLUSION
Finding that the plaintiff has proven all the elements of unjust enrichment, we reverse and set aside the judgment of the trial court. Judgment is hereby entered in favor of Lyle O. Fogleman in the amount of Eighteen Thousand and no/100 ($18,000.00) Dollars against Cajun Bag & Supply Company, with legal interest from date of judicial demand. Costs of trial and this appeal are assessed to the defendant, Cajun Bag & Supply Company.
REVERSED AND RENDERED.
NOTES
[1] The "draw" was an advance on Fogleman's expenses by Cajun. When his total earnings on commissions were computed at the end of the month, this draw was deducted from his earnings.
[2] "Actio de in rem verso" is a civil law action based on the general prohibition against unjust enrichment. However, the terms actio de in rem verso and unjust enrichment have been used interchangeably by many Louisiana courts. See Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967).
[3] We recognize that both Custom Builders and Swiftships were criticized in Morphy. However, this criticism was based on these cases applying quantum meruit to situations where a contract actually existed. We can find no fault with the legal principles cited therein when applied to cases where no contract exists. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597454/ | 638 So.2d 1182 (1994)
Quelyndreia JACKSON
v.
Daniel DENDY, et al.
No. 93 CW 0905.
Court of Appeal of Louisiana, First Circuit.
June 24, 1994.
Elwood C. Stevens, Jr., Morgan City and Boris A. Navratil, Baton Rouge, for relator.
Wayne Royer, Baton Rouge, for respondent.
Before LOTTINGER, C.J., and CRAIN and LeBLANC, JJ.
CRAIN, Judge.
The sole issue before us is whether the amendment of La.R.S. 13:3734(C) by La.Acts 1990, No. 46, section 1 is to be applied retroactively.
Defendant Daniel K. Dendy was the driver of a vehicle involved in a collision with a school bus. Dendy was allegedly intoxicated at the time of the accident and his intoxication *1183 was allegedly a cause of the accident. Dendy was brought to the emergency room of Baton Rouge General Medical Center (Medical Center) for treatment after the accident. Upon the request of his attending physician, Dendy allowed blood to be drawn for his blood alcohol level to be ascertained. Dendy was apparently subsequently charged with the crime of driving under the influence of alcohol and eventually pleaded guilty to that offense.[1] Plaintiffs, bus passengers and parents of passengers who were injured in the collision, instituted this personal injury action against Dendy, Dendy's insurer, the bus driver and the driver's insurer. They additionally seek exemplary damages pursuant to La.C.C. art. 2315.4.
Subpoenas were issued by plaintiffs seeking to discover Dendy's medical records from the Chemical Dependency Unit of Baton Rouge General Medical Center (CDU) pertaining to the presence of alcohol in:
"Dendy's System [sic] or on and about his body and clothing on October 14, 1989, as well as, any and all information which would tend to document Daniel K. Dendy's Customary [sic] habits and practices regarding the use, consumption or abuse of alcohol, drugs or other intoxicating agents and his actions of October 14, 1989 prior to the automobile accident giving rise to the instant litigation."
Plaintiffs also filed requests for production of documents to Baton Rouge General Medical Center seeking:
"Copies of any and all records and bills relating to any blood work, laboratory analysis, alcohol content within the body/organs of Daniel K. Dendy ... including but not limited to medical records, nurse's notes, surgical records, consultants' reports, pathology reports, and all admission, progress, or discharge notes on or after October 14, 1989 which in any way tend to reveal that Daniel K. Dendy had consumed any amount of alcohol or the presence of alcohol in his system, on his person or clothing or habits and practices regarding use thereof."
Dendy moved to quash the subpoenas duces tecum issued at plaintiffs' request to the Medical Center and CDU on the grounds that Dendy had not waived his health care providerpatient privilege. After a hearing on the matter, the trial court granted Dendy's motion to quash the subpoena issued to CDU. The motion to quash the subpoena issued to the Medical Center was denied, but only to the extent that the subpoena requests the production of blood alcohol tests, the results of such tests and any communications regarding such tests. The motion was granted and the subpoena quashed in all other respects.
Defendants sought supervisory writs on the issue of the blood alcohol test results and associated communications. We denied defendants application for supervisory writs. Jackson v. Dendy, 11/19/93, 93 CW 0898. The supreme court granted writs and remanded to this court for briefing and opinion. 633 So.2d 160.
In 1968 the legislature enacted La.R.S. 13:3734 which provided for the health care providerpatient privilege in civil cases much as we know it today. Pursuant to La.R.S. 13:3734 a patient in a civil proceeding has a privilege to refuse to disclose, and to prevent a health care provider from disclosing, any communication which was necessary to enable the health care provider to diagnose, treat, prescribe or act for the patient. Subsection C enumerates the exceptions to this privilege. It is uncontested that at the time of the accident and Dendy's treatment at the Medical Center emergency room the health care providerpatient privilege applied to results of the blood alcohol level test performed on Dendy and any communication regarding such test. Thus, the test results and communications were privileged at the time the test was performed and the communications made.
The accident occurred on October 14, 1989. This action was filed on March 13, 1990. On June 26, 1990, La.Acts 1990, No. 46, sec. 1 became effective. This Act amended La.R.S. 13:3734(C) by adding subsection (6) which provides:
*1184 "When an action for damages for injury, death, or loss has been brought against the patient, any health care provider who has attended the patient may disclose any communication regarding the blood alcohol level of the patient, when the blood alcohol level of the patient has sufficient probative value as to the cause of the person's injury, death, or loss."
Defendants contend the amendment to La. R.S. 13:3734(C) is substantive and should not be applied retroactively. The trial court found the amendment of La.R.S. 13:3734(C)(6) was procedural and applied it retroactively, negating a claim of privilege for the blood alcohol test and communications in connection therewith. The correctness of that ruling is now before the court.
La.R.S. 1:2, the governing rule of statutory construction, provides that no section of the Revised Statutes shall be applied retroactively unless expressly so stated. Our supreme court has declined to adopt a literal interpretation of this statute, stating its literal interpretation is inconsistent with civilian principles. See St. Paul Fire & Marine Insurance Co. v. Smith, 609 So.2d 809, 816 n. 12 (La. 1993).
Article 6 of the Louisiana Civil Code provides:
"In the absence of contrary legislative expression, substantive laws apply prospectively only. Procedural and interpretive laws apply both prospectively and retroactively, unless there is a legislative expression to the contrary."
La.R.S. 1:2 and La.C.C. art. 6 have been construed co-extensively so that the prohibition against retroactivity applies only to substantive laws. St. Paul Fire & Marine v. Smith, 609 So.2d at 816. Reading La.R.S. 1:2 and La.C.C. art. 6 together to determine whether a legislative enactment is to be applied retroactively or prospectively the court must "ascertain whether in the enactment the legislature expressed its intent regarding retrospective or prospective application. If the legislature did so, our inquiry is at an end. If the legislature did not, we must classify the enactment as substantive, procedural or interpretive." Cole v. Celotex Corp., 599 So.2d 1058, 1063 (La.1992). Consequently, in order to determine whether Act 46 of 1990 should be applied retroactively, we must perform the two step analysis prescribed in Cole v. Celotex, 599 So.2d at 1063.
Section 2 of Act 46 provides that the Act becomes effective upon the governor's signature, or without the governor's signature, as provided in Article III, Section 18 of the state constitution. There is no language requiring only prospective application of the act. Nor is there a delayed effective date provision which might evidence some legislative intent of prospective application. Cole, 599 So.2d at 1064-1065 and St. Paul Fire & Marine Insurance Co. v. Smith, 609 So.2d at 817.
Pursuant to section 1 of Act 376 of 1992 Chapter 5 of the Code of Evidence entitled "Testimonial Privileges" was enacted. La. C.E. art. 510 is the corresponding article to the health care providerpatient privilege provided in La.R.S. 13:3734. La.R.S. 13:3734(B) was amended by section 4 of Act 376 of 1992 to provide: "In noncriminal proceedings, testimonial privileges, exceptions, and waiver with respect to communications between a health care provider and his patient are governed by the Louisiana Code of Evidence." However, Section 9 of Act 376 states that the effective date of the Act is January 1, 1993. It further provides that "communications made prior to January 1, 1993, which were subject to a valid claim of privilege under prior law, retain their privileged character unless waived." Thus, the fact that testimonial privileges are now contained in the Code of Evidence does not indicate a legislative intent that they should be considered procedural in view of the specific retention of the privilege under prior law. If anything there is indication of an intent to apply the removal of the exemption prospectively only. Consequently, we must proceed to determine whether the amendment is substantive.
"Substantive laws establish new rules, rights, and duties or change existing ones. Procedural laws prescribe a method for enforcing a substantive right and relate to the form of the proceeding or the operation of the laws. Interpretive laws merely *1185 establish the meaning the interpreted statute had from the time of its enactment."
Segura v. Frank, 630 So.2d 714, 723 (La. 1994). (Citations omitted).
Testimonial privileges, are generally considered to be procedural in nature and do not of themselves create causes of action or other substantive rights on the part of the holders of the privileges. However, where a person has the procedural right to make a valid claim, and that right is taken away or changed by a procedural law, a change in that right constitutes a substantive change in the law as applied to that person. For instance, prescriptive statutes are generally considered procedural except where right to file an action or claim is retroactively changed. See Chance v. American Honda Motor Co., Inc., 635 So.2d 177 (La.1994). Additionally, the jurisprudence has ascribed substantive weight to some evidentiary statutes including using them for establishing a basis to infer a cause of action. La.C.E. art. 501, comment (a). In Leger v. Spurlock, 589 So.2d 40, 41 (La.App. 1st Cir.1991), we recognized a cause of action of a patient against his treating physician for breach of confidentiality "guaranteed to the patient pursuant to LSA-R.S. 13:3734, 42 U.S.C. 290dd-3, 42 U.S.C. 290ee-3, and 42 C.F.R. Part II (Subpart E)." We held that an unauthorized disclosure gave rise to a cause of action for the intentional tort of invasion of privacy as well as for breach of contract which is encompassed under the medical malpractice act. In Leger v. Spurlock, the plaintiff, a police officer who was involuntarily committed to a chemical dependency unit, confided to his treating physician about the problems which were the basis for his commitment. Throughout this time the patient believed that everything he communicated to his physician was protected by physician-patient confidentiality. The physician's subsequent unauthorized disclosure to the district attorney and another attorney resulted in damage to the patient's reputation and marriage; the patient's being fired from his job as a police officer; and the filing of criminal charges against the patient.
Our supreme court protected the health care provider-patient privilege as well as the patient's constitutional right to privacy in Arsenaux v. Arsenaux 428 So.2d 427 (La. 1983). Therein, plaintiff sued her spouse for separation or divorce and claimed the privilege and constitutional right to privacy to exclude testimony about an alleged abortion obtained by the plaintiff spouse. Evidence of the abortion allegedly would have been evidence of fault (adultery) in the action. The supreme court strictly construed La.R.S. 13:3734 and determined that suits for separation and divorce were not among the civil suits which the legislature had delineated to constitute suits in which the privilege is waived. The plaintiff's physical condition was not considered a specific element of plaintiff's suit thus no waiver of that privilege by the plaintiff could be inferred. The court further held that a patient has a constitutional right to the privacy of his/her medical condition and that there was no compelling state interest which required an invasion of that right.
The retroactive revocation of a privilege which was valid when relied upon by a patient would harm the relationship between a patient and the health care provider as well as the privacy expectations of that patient. A patient would no longer have confidence that the information conveyed to a health care provider which is privileged and confidential at the time divulged, will be confidential and privileged in the future.
Plaintiffs contend that in enacting Act 46 of 1990 the legislature was fostering its policy of protecting society against drunk drivers. They allege that Act 46 was enacted in order to simplify the proof of intoxication of a defendant in order to facilitate the plaintiff's obtaining punitive damages pursuant to La. C.C. art. 2315.4. We recognize that Act 46 is an attempt by the legislature to protect society from drunk drivers. However, Act 46 was enacted five years after the enactment of La.C.C. art. 2315.4. The legislature could have amended La.R.S. 13:3734(C)(6) to aid victims of drunken drivers in obtaining punitive damages at the same time it enacted La.C.C. art. 2315.4. Then the retroactive removal of a privilege would not be at issue. Thus, we do not see the urgency (as alleged by plaintiffs) with which the legislature attempted *1186 to assist such victims by enacting Act 46.
Given prospective application, Act 46 will accomplish the legislature's goal of protecting society from drunk drivers. Retroactively revoking the privilege for a communication which was subject to a valid claim of privilege at the time the communication was made could have extremely deleterious results in the future. Fewer patients may feel free to obtain treatment for drug and alcohol abuse, sexually transmitted diseases, as well as other infectious diseases such as AIDS or HIV infection which plague society today, for fear of the repercussions of disclosure.
"When privileges exist, miscarriages of justice will occur. But the relationship that is protected, on the whole, outweighs some of the individually incorrect results.
Confidentiality is important in many health care relationships. The existence of so many privilege statutes should make that principle clear. The extraordinary federal regulations protecting patients treated for drug abuse are another example. By ensuring the patients' confidentiality, these regulations encourage victims of drug [and alcohol] abuse to seek medical assistance, helping them to turn from drugs and rejoin the rest of society."
Snyder, Disclosure of Medical Information Under Louisiana and Federal Law, 65 Tul. L.Rev. 169, 201 (1990). (footnote omitted).
We hold that removal of the patient-health care provider privilege is substantive in effect and cannot be retroactively applied to eliminate the privilege in effect at the time of disclosure. Accordingly, we reverse the judgment of the trial court and remand for further proceedings in accord with this opinion. Costs are assessed against respondents.
REVERSED AND REMANDED.
NOTES
[1] The conviction was apparently expunged pursuant to La.C.Cr.Pro. art. 894. The effect of the expungement is not before us in this writ application. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597457/ | 638 So.2d 838 (1994)
William WAITES
v.
The UNIVERSITY OF ALABAMA HEALTH SERVICES FOUNDATION, et al.
1921943.
Supreme Court of Alabama.
March 11, 1994.
*839 Leon Garmon and Michael L. Allsup, Gadsden, for appellant.
Thomas A. Kendrick of Norman, Fitzpatrick, Wood, Parker & Kendrick, Birmingham, for University of Alabama Health Services Foundation, P.C., Griffith R. Harsh III, M.D., Richard Naftalis, M.D. and Mark J. Cuffe, M.D.
RICHARD L. JONES, Retired Justice.
The plaintiff, William Waites, sued The University of Alabama Health Services Foundation; Griffith R. Harsh III, M.D.; Richard Naftalis, M.D.; and Mark J. Cuffe, M.D., alleging medical malpractice in the defendants' care and treatment of the plaintiff.[1] The trial court entered a summary judgment in favor of the defendants, and Waites appeals. We affirm.
In July 1990, William Waites came to the neurological service of the University of Alabama at Birmingham Hospitals, complaining of weakness in his hands and what came to be diagnosed as paresthesia[2] in his upper extremities and hands. A CT myelogram[3] was performed on Waites, and the results of that test showed that Waites was suffering from "severe spondylosis and stenosis from his third cervical vertebra to his seventh cervical vertebra."[4]
On July 12, 1990, Dr. Naftalis, then chief resident in neurosurgery, discussed with Waites the surgical treatment for his condition and informed Waites of the benefits of the surgery as well as the risks, including the possibility of quadriplegia, progressive myelopathy,[5] and ventilator dependency. Waites chose to have the surgery and, on July 12, 1990, Dr. Naftalis performed a bilateral cervical laminectomy[6] to relieve the compression of Waites's spinal cord. Dr. Cuffe, a junior neurosurgery resident, assisted Dr. Naftalis during the surgery, and Dr. Harsh, Waites's attending physician, was also present. In their affidavits, Dr. Naftalis and Dr. *840 Cuffe testified that the surgery was successful.
On July 16, 1990, Dr. Cuffe saw Waites during hospital rounds; Waites complained at that time of weakness in his legs. Dr. Cuffe noted weakness in Waites's arms and legs. Dr. Naftalis and Dr. Cuffe ordered tests (a CT myelogram and an MRI[7]) to determine whether Waites's symptoms were the result of swelling of the spinal cord or of an epidural hematoma.[8] The tests revealed an epidural hematoma, and Dr. Harsh successfully evacuated the hematoma that same day. Dr. Naftalis and Dr. Cuffe stated that, following successful evacuation of the hematoma, Waites "improved neurologically" and made a good recovery.
The defendant doctors stated that epidural hematoma is a known complication of a cervical laminectomy, and that the risk of the hematoma, along with other possible risks, was explained to Waites before surgery. The doctors also testified that Waites's epidural hematoma was diagnosed and treated as quickly as possible.
According to Waites, the defendant doctors diagnosed the existence of the epidural hematoma, but directed that he be given the drug Decadron and that his condition be monitored. It was only after his post-operative symptoms worsened, claimed Waites, that the defendant doctors surgically evacuated the hematoma, thus relieving the symptoms. Waites further alleged that, because of the defendant doctors' delay in providing the proper treatment for his condition, he suffered paralysis and emotional distress.
Waites sued the doctors and The University of Alabama Health Services Foundation, seeking damages for medical negligence, pursuant to Ala.Code 1975, § 6-5-540 et seq. (the Alabama Medical Liability Act). The defendants filed a motion for summary judgment, supported by the defendant doctors' affidavits and by a memorandum of alleged facts and legal argument. On August 5, 1993, Waites filed a motion for partial summary judgment on the issue of the defendants' liability, supported by the affidavit of Dr. A. Hyman Kirshenbaum and by Waites's memorandum of alleged facts and legal argument. On that same day, Waites also filed a response to the defendants' motion for summary judgment (supported by Dr. Kirshenbaum's affidavit) and a motion to strike the defendants' motion for summary judgment or, in the alternative, to continue the date set for trial and for the hearing on the pending motions.
On August 6, the defendants filed a motion to strike the affidavit of Dr. Kirshenbaum, on the grounds that 1) given the requirements of the Alabama Medical Liability Act, Dr. Kirshenbaum was not qualified to testify against them; and 2) Dr. Kirshenbaum's affidavit was based on hearsay rather than on personal knowledge.
On August 9, 1993, the day set for the hearing on the pending motions and for the beginning of the trial, Waites filed, in open court, a motion to strike the defendant doctors' affidavits on the ground that they did not affirmatively establish the required standard of care for treating Waites's post-operative condition. Waites also moved to continue the hearing on the summary judgment motions and the trial. The trial court granted Waites's motion to continue the trial, but refused to continue the hearing on the summary judgment motions.
The judgment, entered on August 13, 1993, from which this appeal is taken, reads:
"8-19-93 IT IS CONSIDERED that the motion for summary judgment by the plaintiff is not well taken and the same is overruled and denied. The motion for summary judgment by the defendants, Griffith R. Harsh III, M.D.; Richard Naftalis, M.D.; Mark J. Cuffe, M.D.; and University of Alabama Health Services Foundation, P.C., is well taken and granted. There being no just reason for delay, final judgment is hereby rendered in favor of the defendants, Griffith R. Harsh III, M.D.; Richard Naftalis, *841 M.D.; Mark J. Cuffe, M.D.; and University of Alabama Health Services Foundation, P.C., as per Ala.R.Civ.P., Rule 54(b). Costs taxed to the plaintiffs."
Section 6-5-548, part of the Alabama Medical Liability Act of 1987 (§ 6-5-540 et seq.), provides, in part, as follows:
"(a) In any action for injury ..., against a health care provider for breach of the standard of care the plaintiff shall have the burden of proving by substantial evidence that the health care provider failed to exercise such reasonable care, skill and diligence as other similarly situated health care providers in the same general line of practice, ordinarily have and exercise in a like case.
"(b) If the health care provider whose breach of the standard of care is claimed to have created the cause of action is not certified by an appropriate American board as being a specialist, is not trained and experienced in a medical specialty, or does not hold himself out as a specialist, a `similarly situated health care provider' is one who:
"(1) Is licensed by the appropriate regulatory board or agency of this or some other state; and
"(2) Is trained and experienced in the same discipline or school of practice; and
"(3) Has practiced in the same discipline or school of practice during the year preceding the date that the alleged breach of the standard of care occurred.
"(c) If the health care provider whose breach of the standard of care is claimed to have created the cause of action is certified by an appropriate American board as a specialist, is trained and experienced in a medical speciality, or holds himself out as a specialist, a `similarly situated health care provider' is one who:
"(1) Is licensed by the appropriate regulatory board or agency of this or some other state; and
"(2) Is trained and experienced in the same speciality; and
"(3) Is certified by an appropriate American board in the same specialty; and
"(4) Has practiced in this specialty during the year preceding the date that the alleged breach of the standard of care occurred.
"....
"(e) The purpose of this section is to establish a relative standard of care for health care providers. A health care provider may testify as an expert witness in any action for injury ... against another health care provider based on a breach of the standard of care only if he is a `similarly situated health care provider' as defined above."
In addition to the legislature's establishing, in the Alabama Medical Liability Act, a "relative standard of care for health care providers" and providing in that Act the criteria that a prospective expert medical witness must meet, this Court has long required expert medical testimony to establish whether the correct medical treatment and procedure were followed. Powell v. Mullins, 479 So.2d 1119 (Ala.1985); Swendsen v. Gross, 530 So.2d 764 (Ala.1988). "An exception to this general rule exists where an understanding of the doctor's alleged lack of due care or skill requires only common knowledge or experience." Powell v. Mullins, 479 So.2d at 1120.
Because "common knowledge or experience" is not sufficient to allow an understanding of the medical negligence alleged in Waites's complaint, Waites was required, by Alabama law, to provide expert medical testimony to establish the elements of a prima facie case of medical negligence against these defendants. Waites, in keeping with this general rule, submitted the affidavit of Dr. Kirshenbaum, in which Dr. Kirshenbaum testified as to his knowledge of the required standard of care and as to his opinion that the defendants had breached that standard.
Waites contends that, given the provisions of the Act and his own expert's affidavit testimony, in order to grant the defendants' motion for summary judgment the trial court must have concluded, as a matter of law, that *842 Dr. Kirshenbaum's affidavit was due to be stricken, thus leaving Waites with no support for his claim of medical negligence by the defendant doctors. Further, says Waites, the trial court could have reached this conclusion only after first finding that Dr. Kirshenbaum was not a "similarly situated health care provider," as defined by § 6-5-548, or that Dr. Kirshenbaum's affidavit was based on inadmissible hearsay rather than on personal knowledge, or both.
The defendants counter Waites's contentions by arguing that Dr. Kirshenbaum's affidavit was defective because, they say, "it consisted of opinions based on his review of medical records which were not in evidence, properly authenticated, or attached to or served with the affidavit." We agree.
The testimony of Waites's expert was proffered in opposition to the defendants' properly supported Rule 56, A.R.Civ.P., motion for summary judgment. It was necessary, then, that Dr. Kirshenbaum's affidavit meet the requirements of Rule 56(e), the pertinent portion of which provides:
"Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."
(Emphasis supplied.)
This Court, in Ex parte Head, 572 So.2d 1276 (Ala.1990), held that "the requirements of Rule 56(e) are mandatory." Although the Head decision dealt with the provisions of Rule 56(e) requiring that the affidavit "be made on personal knowledge" and that it "set forth such facts as would be admissible in evidence," our holding that the requirements of Rule 56(e) are mandatory certainly can not be limited to those two requirements. Indeed, the two further requirementsthat the affidavit "show affirmatively that the affiant is competent to testify to the matter stated therein" and that "[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith"are no less critical in testing the propriety of an affidavit in support of, or in opposition to, a summary judgment motion.
We hold, therefore, that because no medical records were attached to or served with the affidavit of Dr. Kirshenbaum, the affidavit was properly disregarded by the trial court. Consequently, Waites, as a matter of law, did not rebut the defendants' properly supported summary judgment motion by presenting evidence creating a prima facie case of medical negligence on the part of the defendant doctors; thus, the trial court correctly entered the summary judgment in favor of the defendants. That judgment is affirmed.
This opinion was prepared by retired Justice RICHARD L. JONES, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975, and it is hereby adopted as that of the Court.
AFFIRMED.
HORNSBY, C.J., and SHORES, HOUSTON, STEAGALL and COOK, JJ., concur.
NOTES
[1] In his original complaint, filed on November 28, 1990, Waites included as defendants The University of Alabama Health Services Foundation, P.C.; The University of Alabama Medical Center Foundation; The University of Alabama Hospitals; Griffith R. Harsh III, M.D.; Richard Naftalis, M.D.; Mark J. Cuffe, M.D.; and fictitiously named defendants. On January 15, 1991, Waites filed an amendment (1) striking The University of Alabama Medical Center Foundation, as a "non-existent party"; (2) dismissing The University of Alabama Hospitals on the basis of immunity from suit; and (3) naming the parties as follows: "William Waites, Plaintiff v. The University of Alabama Health Services Foundation, P.C.; Griffith R. Harsh III, M.D.; Richard Naftalis, M.D.; Mark J. Cuffe, M.D.; and fictitious parties, Defendants."
[2] "An abnormal sensation, such as burning, pricking, tickling, or tingling." Stedman's Medical Dictionary (25th ed., 1990).
[3] "Roentgenographic study of the spinal cord." Stedman's Medical Dictionary (25th ed., 1990).
[4] "Spondylosis" is a term "often applied nonspecifically to any lesion of the spine of a degenerative nature"; "stenosis" denotes a "narrowing or stricture of any canal." Stedman's Medical Dictionary (25th ed., 1990).
[5] "Disturbance or disease of the spinal cord." Stedman's Medical Dictionary (25th ed., 1990).
[6] Excision of cervical vertebral lamina. Dorland's Illustrated Medical Dictionary (25th ed., 1974).
[7] A "magnetic resonance imaging" procedure.
[8] "Accumulation of blood in the epidural space... producing compression of the dura mater [membrane covering the spinal cord]." Dorland's Illustrated Medical Dictionary (25th ed., 1974). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597465/ | 638 So.2d 723 (1994)
James H. JEFFRIES
v.
The ESTATE OF Byron L. PRUITT, et al.
No. 93 CA 1442.
Court of Appeal of Louisiana, First Circuit.
June 24, 1994.
*724 Robert P. Hogan, Madisonville, for plaintiff-appellant James H. Jeffries.
Burt K. Carnahan, Metairie, for defendant-appellee State Farm Mut. Auto. Ins. Co.
Before FOIL, PITCHER and PARRO, JJ.
PITCHER, Judge.
James H. Jeffries (plaintiff) appealed the judgment of the trial court maintaining the Peremptory Exception of No Cause and/or No Right of Action filed by the tortfeasor's liability insurer, State Farm Mutual Automobile Insurance Company (State Farm), and dismissing plaintiff's "bad faith" distribution claim against the insurer. We affirm.
FACTS
This matter arises out of a head-on collision which occurred on June 13, 1984 in St. Tammany Parish in which both drivers, Patsy Jeffries and Byron L. Pruitt, were killed instantly. Defendant, State Farm, insured both drivers.
Patsy Jeffries was survived by her husband, the plaintiff herein, and a minor son, Brad Milligan. Approximately two months after the fatal accident, State Farm settled the liability claim of Brad Milligan for 95% of the available Pruitt policy limits of $100,000.00.[1]
Subsequent to State Farm's settlement of his stepson's claim, plaintiff filed suit against State Farm and the Estate of Byron L. Pruitt seeking to recover damages for the wrongful death of Patsy Jeffries. Additionally, plaintiff asserted a bad faith claim in his original and first amending and supplemental petitions, alleging that State Farm, in its capacity as the liability insurer of Pruitt, acted arbitrarily and capriciously in settling Brad Milligan's claim. Pruitt's survivors filed identical actions against plaintiff and State Farm.
The trial court severed the bad faith claims pending a final adjudication of the wrongful death claims, which were consolidated for trial by jury. After trial, the jury determined that Pruitt was solely at fault in causing the accident. Accordingly, the trial court entered judgment in favor of plaintiff and against the defendants in conformity with the jury verdict which awarded damages in the *725 amount of $81,782.02, together with interest and costs.[2]
State Farm filed three peremptory exceptions of no cause and/or no right of action in defense of plaintiff's allegations of bad faith. The first two exceptions filed were summarily denied prior to trial of the wrongful death claims. On April 26, 1993, the trial court entered judgment granting the third exception of no cause and/or no right of action and dismissed plaintiff's bad faith claim against State Farm. Thereafter, plaintiff perfected this devolutive appeal, urging in a single assignment of error that:
The lower court erred as a matter of law in sustaining State Farm's Third Exception of No Cause and/or No Right of Action to the insurance "bad-faith" claims in Mr. Jeffries' petition, as amended on April 4, 1986, especially when the exception is virtually identical to its two previous peremptory exceptions, both of which were denied at the district court and at the appellate court levels.[3]
ASSIGNMENT OF ERROR
By means of this assignment of error, plaintiff asserts that the trial court erred as a matter of law in granting State Farm's peremptory exception pleading the objection of no cause and/or no right of action to plaintiff's original and amended petitions relative to plaintiff's allegations that State Farm was in bad faith in its negotiations of claims arising out of the automobile accident.
The peremptory exception pleading the objection of no cause of action is a procedural device used to test whether, under the allegations of the petition, the law affords any remedy for the grievance asserted. Stafford Construction Company, Inc. v. Terrebonne Parish School Board, 612 So.2d 847, 850 (La.App. 1st Cir.1992), writ denied, 614 So.2d 82 (La.1993); Ward v. Tenneco Oil Company, 564 So.2d 814, 820 (La.App. 3rd Cir.1990); Bellah v. State Farm Fire and Casualty Ins. Co., 546 So.2d 601, 603 (La. App. 3rd Cir.1989). The purpose of this objection is to determine the legal sufficiency of a petition, and for purposes of ruling on the exception pleading the objection of no cause of action, the court must accept all well-pleaded facts in the petition and any annexed documents as true. The court should sustain the exception only if the law affords no remedy under any evidence that is admissible under the pleadings. Stafford Construction Company, Inc. v. Terrebonne Parish School Board, 612 So.2d at 850; Hunt v. Milton J. Womack, Inc., 616 So.2d 759 (La.App. 1st Cir.), writ denied, 623 So.2d 1309 (La.1993). No evidence may be introduced to support or controvert the objection of no cause of action. LSA-C.C.P. art. 931.
The peremptory exception pleading the objection of no right of action, on the other hand, addresses itself to the question of whether the particular plaintiff falls, as a matter of law, within the general class in whose favor the law grants the cause of action sought to be asserted in the suit. Stafford Construction Company, Inc. v. Terrebonne Parish School Board, 612 So.2d at 851. The objection of no right of action is a threshold device to terminate a suit brought by one who has no interest in enforcing judicially the right asserted. Wonycott v. Wonycott, 579 So.2d 506, 508 (La.App. 4th Cir.1991).
In the instant case, plaintiff contends that Louisiana jurisprudence clearly recognizes *726 the validity of a third-party claimant's cause of action against a liability insurer based upon the insurer's alleged unreasonable and bad faith distribution of its limited policy proceeds among competing tort victims. Plaintiff contends that State Farm breached its legal duty to make a "good-faith" and "reasonable" distribution of the inadequate policy proceeds among competing claimants, despite State Farm's knowledge of pending tort claims against it. Specifically, plaintiff's argument is that State Farm's unilateral negotiation of a settlement with plaintiff's stepson two months after the accident, without advance notice to plaintiff and/or without his consent, and without the benefit of a concursus proceeding or declaratory action, was arbitrary and capricious.
In opposition to plaintiff's contentions, State Farm submits that prior to the enactment of LSA-R.S. 22:1220, the insurer owed no such duty to a third-party claimant seeking recovery under a liability policy who was not a named insured under the contract of insurance. We agree.
LSA-R.S. 22:1220 was added by La. Acts 1990, No. 308, sec. 1, effective July 6, 1990. In pertinent part, the statute provides:
A. An insurer ... owes to his insured a duty of good faith and fair dealing. The insurer has an affirmative duty to adjust claims fairly and promptly and to make a reasonable effort to settle claims with the insured or the claimant, or both. Any insurer who breaches these duties shall be liable for any damages sustained as a result of the breach.
LSA-R.S. 22:1220 creates a duty on the part of the insurer to make reasonable efforts to settle claims not only with the insured, but also with a third-party claimant. Rusch v. Cook, 619 So.2d 122, 124 (La.App. 1st Cir.), writ denied, 625 So.2d 1043 (La. 1993). However, prior to the enactment of LSA-R.S. 22:1220, it was the well-settled jurisprudence of this state that the insurer owed to its insured a duty to act in good faith and to deal fairly when settling claims. Rusch v. Cook, 619 So.2d at 124; Holtzclaw v. Falco, Inc., 355 So.2d 1279, 1284 (La.1978) (on rehearing). Thus, the first sentence of the statute did constitute a change in the law; it simply codified existing law. Rusch v. Cook, 619 So.2d at 124.
On the other hand, as provided for in the second and third sentences of LSA-R.S. 22:1220, the statute created new rights and new obligations where none previously existed. The creation of an obligation on the part of the insurer to settle claims with a third-party claimant, where no such obligation existed before, constitutes a substantive change in the law with respect to the duty of an insurer to settle claims. Consequently, the statute may not be applied retroactively. Rusch v. Cook, 619 So.2d at 124; See LSA-C.C. art. 6; LSA-R.S. 1:2; Graham v. Sequoya Corporation, 478 So.2d 1223, 1225-26 (La.1985).
Even though third-party claimants are now included in the class of persons to whom the insurer owes certain duties, plaintiff is not such a claimant to whom an insurer owed an affirmative duty in settling claims at the time of the subject accident. The automobile accident giving rise to plaintiff's bad faith distribution claim for damages occurred on June 13, 1984, which was prior to the July 6, 1990 effective date of the act that created the duty of an insurer to make reasonable efforts to settle with a third-party claimant. Thus, since LSA-R.S. 22:1220 constitutes a substantive change in the law, it cannot be applied retroactively to the facts of the instant case to accord plaintiff the relief he seeks.
As noted above, an insurer has no affirmative duty to third-party claimants to settle claims prior to the July 5, 1990 effective date of LSA-R.S. 22:1220. The relevant law and jurisprudence was discussed in Bellah v. State Farm Fire and Casualty Ins. Co. There, the plaintiffs alleged that they were entitled to recover damages against the defendant's liability insurer for its alleged arbitrary and capricious failure to settle a claim on behalf of its insured before trial. The insurer filed a "Motion and Order to Strike" the petitioner's bad faith claim for damages, which was granted by the trial court. Construing the facts set forth in the motion as adequately alleging an exception of no cause of action, the appellate court determined that Louisiana law did not afford the plaintiffs *727 the remedy sought and affirmed the judgment of the trial court.[4] The court stated:
[I]t is clear that the law does not afford plaintiffs the remedy they seek. Mr. and Mrs. Small, and any other person(s) named or covered as insureds under their policy with State Farm are the only parties that may sue State Farm to recover damages against State Farm in the event that a judgment in excess of the policy limits is ultimately rendered against them because of State Farm's bad faith failure to settle the claim.
* * * * * *
... Louisiana law does not authorize plaintiffs, who are not insureds under State Farm's policy, to seek damages against State Farm for its alleged bad faith in settlement negotiations and for exercising its contractual right to provide a defense for the insured. Accordingly, we conclude the trial judge did not abuse his discretion in striking plaintiffs' bad faith cause of action and associated damage claim from plaintiffs' petition and dismissing such bad faith claim at plaintiffs' cost.
Bellah v. State Farm Fire and Casualty Ins. Co., 546 So.2d at 604, 605.
Clearly, the law existing at the time that State Farm's insured committed the tortious act established that a liability insurer's obligation is to its insured and not to third-party claimants.
When the foregoing legal principles are applied to the facts of the instant case, it is clear that the law does not afford plaintiff the remedy he sought at the time of the subject accident. Accordingly, we conclude that plaintiff has no cause and/or right of action to seek damages against State Farm for its alleged bad faith in negotiating a settlement with another claimant prior to an adjudication of its insured's liability. This assignment of error is without merit.
CONCLUSION
For the foregoing reasons, the judgment of the trial court maintaining the peremptory exception pleading the objection of no cause and/or no right of action in favor of defendant, State Farm, and against plaintiff, James H. Jeffries, is affirmed. All costs of this appeal are assessed against the plaintiff, James H. Jeffries.
AFFIRMED.
NOTES
[1] Suit was filed on behalf of Brad Milligan by his natural father, Robert J. Milligan.
[2] The judgment was affirmed on appeal in Jeffries v. Estate of Pruitt, 598 So.2d 379 (La.App. 1st Cir.), writ denied, 605 So.2d 1124 (La.1992). State Farm satisfied the judgment in full. Additionally, State Farm paid plaintiff the remaining $5,000.00 under the Pruitt liability policy as well as $25,000.00 in uninsured motorist benefits. Although its liability limit was $100,000.00, State Farm paid a total of approximately $255,000.00 on the Pruitt policy.
[3] Judgment denying the first exception was entered July 30, 1986 by Judge James R. Strain, Jr. State Farm's writ application to this court was denied on October 29, 1986. The case was subsequently transferred to Judge Remy Chaisson. Judge Chaisson entered judgment overruling the second exception on December 8, 1989. State Farm's second writ application was denied by this court on February 5, 1990 and by the Louisiana Supreme Court on April 6, 1990. Plaintiff's brief raises the issue of whether State Farm's third exception constitutes a recurrent violation of the "law of the case" doctrine. Our examination of the record revealed that it does not.
[4] The court noted that a "Motion to Strike" was not an authorized or proper way to procure the dismissal of a complaint or a cause of action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597467/ | 39 Wis.2d 391 (1968)
158 N.W.2d 919
NIXON, Appellant,
v.
NIXON, Respondent.
No. 310.
Supreme Court of Wisconsin.
Argued May 9, 1968.
Decided June 4, 1968.
*395 For the appellant there was a brief and oral argument by Harry W. Theuerkauf of Milwaukee.
For the respondent there was a brief and oral argument by Marvin Resnick of Milwaukee.
CONNOR T. HANSEN, J.
Two issues are presented:
1. Whether sec. 268.14, Stats., is unconstitutional?
2. Whether the writ of ne exeat was improperly issued in the present case?
(1) At common law, ne exeat was the writ used to obtain equitable bail. It was issued by a court of equity against a defendant upon application of a complainant when it appeared that there was a debt positively due, certain in amount or capable of being made certain, on an equitable demand not suable at law, and that the defendant was about to leave the jurisdiction, having conveyed away his property, or under other circumstances which would render any decree ineffectual. Davidor v. Rosenberg (1906), 130 Wis. 22, 24, 109 N. W. 925; Dean v. Smith (1868), 23 Wis. 483, 486.
It is a provisional and ancillary remedy issued only by special order of the court. State ex rel. Cazier v. Turner (1911), 145 Wis. 484, 130 N. W. 510. The writ has not been abolished in this state and is specified in the following statutes:
"268.13 Writ of ne exeat. The court or a judge may grant the writ of ne exeat to prevent any defendant from going out of the state until he shall give security. It may be granted at any time before judgment."
*396 "268.14 Same; when granted. No writ of ne exeat shall be granted unless it appears to the court or judge by the complaint or an affidavit that grounds exist therefor; and the court or judge granting such writ shall direct to be indorsed thereon the penalty of the bond and security to be given by the defendant."
"268.15 Same; discharge of. If the defendant shall satisfy the court or judge granting such writ that there is no reason for his restraint or shall give security for the performance of the judgment in the action the writ shall be discharged."
However, the writ of ne exeat was not created, nor are its functions defined by statute. The aforementioned sections recognize the common-law writ and make certain provisions relating to the issuance thereof, but do not pretend to enlarge its scope. As to the general functions of the writ and the grounds upon which it may issue, resort must be had to principles of the common law. Davidor v. Rosenberg, supra, at page 24. And even though the distinction between actions at law and suits in equity has been abolished, the writ of ne exeat can be issued only for equitable demands. Bonesteel v. Bonesteel (1871), 28 Wis. 245, 250. Granting or refusing the writ is within the jurisdiction of a circuit court by virtue of its general equity powers. State ex rel. Cazier v. Turner, supra, at page 485.
Respondent contends that the writ of ne exeat as set forth in the statutes, specifically sec. 268.14, is a violation of the due-process clause of the United States[1] and Wisconsin[2] Constitutions.
*397 Such contention is based on the allegation that sec. 268.14, Stats., is so inherently vague as to allow the writ to be utilized as a tool of harassment rather than as was intended by the principles of common law. In support of this contention, respondent cites this court's statement in State Bank of Drummond v. Nuesse (1961), 13 Wis. 2d 74, 82, 83, 108 N. W. 2d 283, to the effect that the purpose of the constitutional provision guaranteeing due process and equal protection of the law is to prevent arbitrary deprivation of life, liberty or property and to require equal protection and security for all under like circumstances in enjoyment of their personal and civil rights.
The only prior constitutional attack brought against the validity of the writ of ne exeat was unsuccessful. Dean v. Smith, supra, at page 486, determined that the writ was not "imprisonment for debt" within the intent and spirit of art. I, sec. 16 of the Wisconsin Constitution.[3]
As has been noted, the writ has its origins in common law. See 3 Story, Equity Jurisprudence (14th ed. 1918), pp. 506-509, secs. 1910-1915; Thompson, Provisional Remedies (1867), ch. VI, pp. 568, 569. As such it has been incorporated by art. XIV, sec. 13 of the Wisconsin Constitution, which provides as follows;
*398 "Common law continued in force. SECTION 13. Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature."
Thus, it seems that any elimination of said remedy should be accomplished through legislative processes.
Bonesteel v. Bonesteel, supra, at page 250, recognized that the statutes do not prescribe the grounds on which the writ should issue and found that resort should then be had to established law. Davidor v. Rosenberg, supra, at page 25 establishes the principle that grounds for issuance of the writ are the grounds sufficient under the principle of common law.
The court possesses inherent power to issue or deny the writ. In the instant case, the writ was issued after an ex parte hearing, and upon the verified complaint and affidavit of the plaintiff.[4] That same day, defendant was brought before the court for hearing. It cannot be presumed that every decision based upon this procedure will constitute an arbitrary abuse of discretion, nor do we in any way intend to indicate that such was the situation in the case now under consideration.
In view of the extraordinary nature of the writ of ne exeat, we here determine that the issuance thereof, under the statutory procedure followed in this case, was not unconstitutional.
(2) Ultimately, and after a hearing at which both parties were represented by counsel, the trial court entered an order determining that the writ had been improperly issued and further ordered that the $5,000 security deposited by the defendant be returned to him.
It may be stated as a general rule that the writ of ne exeat will not be issued except in cases of equitable debts or claims; however, it is a well-recognized exception *399 to the rule that ne exeat will issue to prevent a decree for alimony from becoming ineffective. In re Grbic (1919), 170 Wis. 201, 174 N. W. 546, 8 A. L. R. 325, 327; 3 Story, Equity Jurisprudence, supra, pp. 510, 511; Thompson, Provisional Remedies, supra, pp. 568, 571; 27A C. J. S., Divorce, p. 350, sec. 101.
It is recognized that ne exeat is an extraordinary writ and that because it is a remedy of great severity, it carries with it extraordinary judicial responsibilities. Earles v. Earles (1951), 343 Ill. App. 447, 99 N. E. 2d 359; National Automobile & Casualty Ins. Co. v. Queck (1965), 1 Ariz. App. 595, 405 Pac. 2d 905. However, it must also be recognized that the trial judge who is initially called upon to consider the issuance of the writ ex parte is confronted with a distinctly different situation than one called upon to finally determine the propriety of the issuance thereof.
We have considered the arguments and authorities advanced by both plaintiff-appellant and defendant-respondent in support of their respective positions. It is our determination that the trial judge correctly determined that the writ had been improperly issued. We shall refer to the reasons we believe to be most significant.
In Harrison v. Graham (C. C. Me. 1901), 110 Fed. 896, a federal court denied the writ and summarized:
"The writ of ne exeat, like all other special writs issued by the chancellor, when exercising his equitable jurisdiction, is an equitable one, and therefore it cannot be granted without some regard to a comparison of the relative mischiefs which the refusal or allowance of it would involve. We, of course, have no knowledge how much hardship, and, consequently, how much practical injustice, would be imposed on the respondent by an arrest on foreign soil, where he is sojourning temporarily for pleasure, if the alleged cause of action against him should prove to be baseless; while we can perceive that there is no substantial hardship to the complainant involved *400 in the denying of the writ now asked for, inasmuch as he has had ample opportunity of proceeding against the respondent at Montreal, no more remote from the residence of the complainant than is the habitat of the United States circuit court for this district, and inasmuch, also, as we are well assured that his decree, if he obtains one in this suit, will be respected by the courts of the province of Quebec."
A comparison of the relative position of the parties in the instant case must properly involve a consideration of the alternative remedies available to the plaintiff. Defendant suggests attachment[5] and a reciprocal support action (sec. 52.10, Stats.) as possible alternative remedies. The record indicates that a reciprocal action had been instituted. The plaintiff alleges on information and belief that the defendant receives a monthly income of upwards of $1,000 and is the owner of valuable property in the state of New York. In view of the fact that the divorce was consensually accomplished while both parties were residents of New York and a reciprocal action had been instituted in this particular case, legal action in the forum of New York is more appropriate than equitable action in Wisconsin.
The agreement between plaintiff's Wisconsin counsel and defendant's New York counsel cannot be ignored. There is no dispute as to the agreement; the dispute arises as to its interpretation. The agreement was that plaintiff would not frustrate, obstruct or interfere with defendant's visitations with respect to the child while he was in Wisconsin. Counsel for the plaintiff contends that such agreement did not grant the defendant immunity from service of process or other legal procedures while he was in Wisconsin. Service of process is one thing, however taking him into custody and forcing his *401 appearance in court is something entirely different. It would seem that no reasonable interpretation of the understanding between the parties would contemplate such action.
The defendant was a nonresident, temporarily in Wisconsin and he owned no property in the state except the automobile he was apparently driving. Furthermore, there had been no judicial determination as to the arrearage due.
The case of Earles v. Earles, supra, is factually very similar to the case here under consideration. It supports the general proposition that a writ of ne exeat should not issue when an alternative remedy exists and there is no allegation that the defendant originally left the court's jurisdiction with the intention of evading payment or of defrauding the plaintiff.
We, therefore, determine that the trial court was correct in its determination that the writ was improperly issued and in ordering the $5,000 security deposit returned to the defendant.
By the Court.Order affirmed.
ROBERT W. HANSEN, J., took no part.
NOTES
[1] "ARTICLE XIV. SECTION 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
[2] "ARTICLE I. Equality; inherent rights. SECTION 1. All men are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed."
Art. I, sec. 1 of the Wisconsin Constitution is substantially equivalent to the due-process and equal-protection clauses of the fourteenth amendment to the United States Constitution. State ex rel. Sonneborn v. Sylvester (1965), 26 Wis. 2d 43, 49, 132 N. W. 2d 249; State ex rel. La Follette v. Reuter (1967), 36 Wis. 2d 96, 110, 153 N. W. 2d 49.
[3] "Imprisonment for debt. SECTION 16. No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied."
[4] A writ issued without affidavit has been held absolutely void. Bonesteel v. Bonesteel, supra, at page 251.
[5] It is acknowledged that respondent husband did have personal property, i.e., an automobile, with him in the state and therefore the remedy of attachment might have been pursued. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597474/ | 3 So.3d 872 (2008)
Terry Lynn FORD
v.
Tobatha Gupton FORD.
2061052.
Court of Civil Appeals of Alabama.
August 8, 2008.
Jay E. Stover of Stover, Stewart & Phillips, LLC, Gadsden, for appellant.
Roy O. McCord of McCord & Martin, Gadsden, for appellee.
THOMAS, Judge.
Terry Lynn Ford ("the father") and Tobatha Gupton Ford ("the mother") were married in November 1984. In September 2006, after nearly 22 years of marriage, the parties separated. The mother filed for a divorce. After a short trial, the trial court entered a judgment on April 16, 2007, divorcing the parties. The judgment awarded the parties joint custody of their children, ordered no child support be paid by either party, and awarded the mother her retirement account; the marital residence was ordered to be sold, and any remaining proceeds after the retirement of the two mortgages on the residence were to be divided equally.
After the entry of the divorce judgment, the father filed a motion to require the mother to produce proof of the value of her retirement plan. He also filed a postjudgment motion requesting that the trial court award him physical custody and that *873 the trial court reconsider its decision not to award him any portion of the mother's retirement benefits. The mother filed a motion to enforce the divorce judgment and filed responses to the father's motions. Pursuant to the trial court's order granting the father's request that she produce proof of the value of her retirement plan, the mother presented copies of documents relating to her retirement plan. After a hearing on the father's postjudgment motion, the trial court, among other things not pertinent to this appeal, denied his motion. The father timely appealed.
On appeal, the father argues first that the trial court's joint-custody award fails to comply with the joint-custody statute because it fails to specify a joint-custody plan as required by Ala.Code 1975, § 30-3-153. He further argues that the trial court erred in not awarding him child support in light of the disparity in the parties' incomes. Finally, the father argues that the trial court erred in failing to award him a portion of the mother's retirement account.
The father is self-employed as a residential contractor. His income affidavit lists his income as $4,666 per month. He testified at trial that 2006 had been a bad year for his business, but he did not specifically testify regarding his income for that year. The only "retirement" account that the father has is a $52,000 certificate of deposit. The mother is employed as a federal probation officer, earning $94,000 per year. She has worked for the federal government since 1979; she has been a probation officer for the last 16 of those years. The mother testified that she has a retirement plan and that she had accrued some retirement benefits before the parties' marriage. The transcript is devoid of any evidence regarding the value of the mother's retirement plan, whether she was vested in that plan, and what percentage of her retirement plan was earned before the parties married in 1984.
We will first address the father's contention that the trial court erred by not awarding him a portion of the mother's retirement benefits. As noted above, the transcript contains no evidence regarding the mother's retirement benefits other than the fact that she has a retirement account and that a portion of the value of that account was accumulated prior to the marriage. Although the father requested, in a postjudgment motion, information regarding the mother's retirement account, and although the information the mother provided is in the record, the father failed to prove the type of retirement account that the mother has, what portion of the benefits were earned or accrued prior to the marriage, or if the mother's rights to the retirement benefits have vested. As we have explained, Ala.Code 1975, § 30-2-51(b),[1] permits a trial court to award a spouse a portion of his or her spouse's retirement benefits only if certain requirements are met:
"A reading of § 30-2-51(b) indicates that a trial judge has the discretion to *874 divide a spouse's retirement benefits if either of two conditions exists at the time the complaint for divorce is filed: a spouse must have a vested interest in or be receiving retirement benefits. Section 30-2-51(b) then states that the trial judge's discretion to divide retirement benefits is further limited by three additional conditions: the 10-year marriage rule of subsection (1); the post-nuptial acquisition-of-benefits rule of subsection (2); and the 50 percent division rule of subsection (3). The apparent meaning of these provisions, when read as a whole, is that the trial judge may divide the value of any retirement benefits in which one spouse has a vested interest or is receiving on the date the action for divorce is filed, provided that the parties have been married for 10 years as of that date, that the judge divides only those retirement benefits acquired during the marriage, and that the judge awards the noncovered spouse no more than 50 percent of the benefits that may be considered by the court."
Smith v. Smith, 836 So.2d 893, 899-900 (Ala.Civ.App.2002). In cases in which the spouse seeking the award of benefits has not proven the amount of retirement benefits accrued during the marriage, we have held that that failure of proof prevents a trial court from exercising its discretion to award retirement benefits under the statute. See Capone v. Capone, 962 So.2d 835, 840 (Ala.Civ.App.2006); Dunn v. Dunn, 891 So.2d 891, 895 (Ala.Civ.App.2004). Thus, we cannot agree that the trial court's failure to award the father a portion of the mother's retirement benefits was error.
The father also argues that the trial court erred by awarding the parties joint custody without setting out a plan for joint custody, as required by § 30-3-153, and that the trial court erred by not awarding him child support despite the disparity in the parties' incomes. The father correctly argues that in cases in which joint custody is awarded, a plan for implementing the joint-custody arrangement is required. § 30-3-153(a). The statute reads:
"(a) In order to implement joint custody, the court shall require the parents to submit, as part of their agreement, provisions covering matters relevant to the care and custody of the child, including, but not limited to, all of the following:
"(1) The care and education of the child.
"(2) The medical and dental care of the child.
"(3) Holidays and vacations.
"(4) Child support.
"(5) Other necessary factors that affect the physical or emotional health and well-being of the child.
"(6) Designating the parent possessing primary authority and responsibility regarding involvement of the minor child in academic, religious, civic, cultural, athletic, and other activities, and in medical and dental care if the parents are unable to agree on these decisions. The exercise of this primary authority is not intended to negate the responsibility of the parties to notify and communicate with each other as provided in this article.
"(b) If the parties are unable to reach an agreement as to the provisions in subsection (a), the court shall set the plan."
§ 30-3-153.
In the present case, the trial court's custody award reads as follows: "The parties shall have the shared joint care, custody, and control of [the parties'] children." The award does not indicate which parent will have physical custody of the children on any given day, § 30-3-153(a)(1), which parent has the right to physical custody of *875 the children on any particular holiday, § 30-3-153(a)(3), or which parent, in the face of disagreement between the two, has primary authority to resolve issues regarding the children's education, religious upbringing, or medical care. § 30-3-153(a)(6). In short, we agree with the father that the award is deficient in many respects. We therefore reverse the trial court's judgment regarding custody and remand the cause for the trial court to set a plan for joint custody as required by § 30-3-153(b).
Because we are reversing the custody judgment, we also reverse the trial court's judgment insofar as it failed to award child support to either party. The joint-custody plan set by the trial court on remand might impact the need for child support. In addition, we note that the determination of child support is considered to be a part of the joint-custody plan. § 30-3-153(a)(4).
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED WITH INSTRUCTIONS.
PITTMAN, BRYAN, and MOORE, JJ., concur.
THOMPSON, P.J., concurs in the result, without writing.
NOTES
[1] Section 30-3-51(b) reads:
"(b) The judge, at his or her discretion, may include in the estate of either spouse the present value of any future or current retirement benefits, that a spouse may have a vested interest in or may be receiving on the date the action for divorce is filed, provided that the following conditions are met:
"(1) The parties have been married for a period of 10 years during which the retirement was being accumulated.
"(2) The court shall not include in the estate the value of any retirement benefits acquired prior to the marriage including any interest or appreciation of the benefits.
"(3) The total amount of the retirement benefits payable to the non-covered spouse shall not exceed 50 percent of the retirement benefits that may be considered by the court." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597475/ | 158 N.W.2d 705 (1968)
Alyce A. KRUEGER, widow of Ray F. Krueger, Deceased Employee, Respondent,
v.
STATE of Minnesota, DEPARTMENT OF HIGHWAYS, Relator.
No. 40629.
Supreme Court of Minnesota.
May 3, 1968.
*706 John W. Keeler, St. Paul, for relator.
Ryan, Ryan & Ebert, and Thomas Ryan, Brainerd, for respondent.
OPINION
OTIS, Justice.
This matter is before the court to review a decision of the Industrial Commission allowing the widow of a deceased employee to recover from his employer attorney's fees incurred in securing from a third-party tortfeasor a settlement in which the employer had subrogation rights. The only issue is whether the widow's claim is governed by a 2-year or by a 6-year statute of limitations.
The decedent, Ray F. Krueger, was a highway patrolman employed by the State of Minnesota when he was killed in line of duty on November 20, 1959. His widow, the claimant in these proceedings, retained counsel to institute an action for death by wrongful act and recovered a settlement of $25,000 on March 21, 1960. Since, under Minn.St. 176.061, subd. 3, the employer would be entitled to subrogation if it paid the widow benefits, she did not institute proceedings under the Workmen's Compensation Act until she initiated this claim on November 17, 1965. However, on December 14, 1959, the employer notified the Industrial Commission that the employee had been killed while acting within the scope of his employment.
Plaintiff has incurred attorney's fees amounting to one-third of $25,000 recovery. She argues that under § 176.061, subd. 6,[1] she is entitled to reimbursement from the employer for that proportion of the attorney's fees which was earned in asserting the employer's subrogation claim.[2]
*707 The question then is which of two statutes of limitations applies. The state argues that § 176.151(2) governs, pertinent parts of which provide:
"The time within which the following acts shall be performed shall be limited to the following periods, respectively:
* * * * * *
"(2) Actions or proceedings by dependents to determine or recover compensation, two years after the receipt by the commission of written notice of death, given by the employer, but not to exceed six years from the date of the accident."
Under that statute the claim would be barred. Plaintiff, on the other hand, contends that the claim comes under the following provisions of § 541.05(2):
"Except where the uniform commercial code otherwise prescribes, the following actions shall be commenced within six years:
* * * * * *
"(2) Upon a liability created by statute, other than those arising upon a penalty or forfeiture or where a shorter period is provided by section 541.07."
If applicable, that statute would permit her to recover. The referee held that the 2-year statute prevented plaintiff from asserting her claim under § 176.061, subd. 6. On appeal, a divided commission reversed. A majority of the commission felt that the state was estopped from asserting the 2-year statute of limitations because it had accepted the subrogation benefits arising out of the action for death by wrongful act. We do not agree that the equitable doctrine of estoppel prevents the employer from invoking the statute of limitations under these circumstances. However, we affirm for other reasons.
The narrow issue is whether the word "compensation," used in § 176.151(2), includes prorated attorney's fees. It is defined by § 176.011, subd. 8, as follows:
"`Compensation' includes all benefits provided by this chapter on account of injury or death."
Whether attorney's fees are a benefit arising out of the employee's death under the Workmen's Compensation Act is a troublesome question. Reimbursement for medical and hospital expenses is clearly a benefit within the meaning of the act. However, they are directly related to one of the basic purposes of the law, the rehabilitation of injured employees. In the case of an injury or illness, there are usually some expenses which are inevitable, just as in the case of death funeral expenses are inevitable. The obligation to pay attorney's fees is a more remote contingency. It is one which arises only in the special and limited situation where there is third-party liability. The reimbursement for attorney's fees does not, therefore, fall squarely in the category of benefits which we believe the act was intended to include.
Our conclusion is fortified by the anomalous situation which would result if the 2-year statute of limitations applied and a common-law action were not begun until after that period had expired. In the light of today's crowded calendars and the invariable custom of basing attorney's fees on a percentage of recovery, it would often be impossible to determine the liability for attorney's fees within a period of 2 years from the time of an employee's injury or death. While that problem did not actually arise in the instant case, it is one which more likely than not will occur in the future. For these reasons we believe the statute should be given its more liberal construction and hold that plaintiff's claim is not a benefit within the meaning of § 176.011, subd. 8, and does not constitute compensation under § 176.151(2). Consequently, the 6-year limitation prescribed by § 541.05(2) is applicable, and plaintiff's proceedings are therefore timely.
Affirmed.
NOTES
[1] Minn.St.176.061, subd. 6, provides: "As between employer and employee or his dependents, in all actions governed by this subdivision the employer shall bear that proportion of the costs, reasonable attorney's fees, and reasonable expenses incurred in making collection from and enforcing liability against the party other than the employer which the amount claimed by the employer for deduction from, or to be retained against, compensation payable bears to the whole amount recovered from such other party."
[2] The employer makes some point of the fact the attorney's fees have not actually been paid. However, it is undisputed that they have been incurred and constitute a valid obligation. We do not regard the question of actual payment as relevant to the issues. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597478/ | 583 F.Supp. 701 (1984)
Edward THOMAS
v.
Charles ZIMMERMAN, Superintendent
and
The Attorney General of the State of Pennsylvania.
Edward THOMAS
v.
Charles ZIMMERMAN
and
The Attorney General of the State of Pennsylvania.
Civ. A. Nos. 83-0698, 83-0699.
United States District Court, E.D. Pennsylvania.
February 29, 1984.
*702 Edward Thomas, pro se.
Ann I. Keck, Asst. Dist. Atty., Lehigh County, Allentown, Pa., for defendant.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Edward Thomas (Thomas), an inmate confined in the State Correctional Institute at Graterford, has filed two pro se petitions for writs of habeas corpus. The petition in No. 83-0699 attacks a conviction for voluntary deviate sexual intercourse upon which Thomas has completely satisfied the sentence imposed. The petition in No. 83-0698 attacks the convictions for robbery and related offenses for which he is presently incarcerated. Magistrate Peter B. Scuderi has issued a report with a recommendation that (1) the petition in No. 83-0699 be granted and Thomas' conviction for voluntary deviate sexual intercourse be voided and (2) the petition in No. 83-0698 also be granted, and that execution of the writ be stayed for 90 days so as to afford an opportunity to either re-sentence Thomas to reflect the time spent in custody as a pretrial detainee, or otherwise correct the records so as to give Thomas credit on his present sentence for time incarcerated as a pretrial detainee.
*703 The Commonwealth has not filed any objections to the Magistrate's Report and Recommendation. Thomas has filed a "Request to Supplement" the Report and Recommendation, in which he requests that he be afforded "mandatory resentencing process" in connection with the writ in No. 83-0698, on the ground that the void prior conviction for voluntary deviate sexual intercourse influenced the imposition of his sentence in the robbery case. This Court agrees that Thomas' conviction attacked in No. 83-0699 must be vacated, and that he must be resentenced in connection with the conviction attacked in No. 83-0698. For the reasons set forth below, the Court will approve and adopt the Magistrate's Report and Recommendation as supplemented by the granting of Thomas' request for resentencing. The execution of the writ in No. 83-0699 will be stayed for 90 days so as to afford the Commonwealth an opportunity to arrange for the resentencing of Thomas on the robbery and related offenses without consideration of the voluntary deviate sexual intercourse conviction, with Thomas receiving credit on the new sentence for the time he was incarcerated as a pretrial detainee and the time he served on the voluntary deviate sexual intercourse conviction, together with the time he served on the sentences imposed on the robbery and related charges.
I. Background
The Magistrate's Report sets forth a detailed account of the facts and procedural history of this case, which the Court will only summarize. On January 16, 1976, Thomas was incarcerated in Lehigh County Prison as a pretrial detainee on charges of burglary and receiving stolen property. On January 17, 1976, he allegedly committed an act of sodomy with another inmate. As a result, he was charged with simple assault, terroristic threats, and involuntary deviate sexual intercourse. On February 4, 1976, he pleaded not guilty to these latter three charges.
The charges upon which Thomas originally was detained at the Lehigh County Prison were dismissed. On March 10, 1976, he posted bail on the remaining three charges and was released pending trial. On May 8, 1976, while out on bail, Thomas was again arrested and charged with robbery, conspiracy, terroristic threats, and the commission of a crime with a firearm. He did not post bail on these new charges and was incarcerated pending trial.
Thomas was tried before a jury from September 14 to September 16, 1976, and was found not guilty of simple assault, terroristic threats, and involuntary deviate sexual intercourse in connection with the sodomy incident. Thomas was found guilty, however, of voluntary deviate sexual intercourse, a misdemeanor.
The court reporter's notes of the Court's jury charge were never transcribed and, in fact, were inexplicably destroyed. See N.T., P.C.H.A. Hearing, October 14, 1980, at 6-11. At a subsequent hearing, however, it was conceded that the trial judge, apparently believing voluntary deviate sexual intercourse to be a lesser-included offense of involuntary deviate sexual intercourse, charged the jury on both crimes. See N.T., P.C.H.A. Hearing, October 14, 1980, at 5-12.
On September 20, 1976, Thomas' counsel filed post-trial motions contending, inter alia, that the voluntary deviate sexual intercourse statute was unconstitutional. Shortly after Thomas' counsel filed the post-trial motions, he left the employ of the Public Defender's Office, and a second public defender was appointed to represent Thomas.
From September 20 to September 23, 1976, Thomas was tried before a jury on the robbery and related offenses. He was found guilty of all charges. He remained in custody from September of 1976 until June of 1977. On June 29, 1977, the post-trial motions filed in connection with the voluntary deviate sexual intercourse conviction were dismissed because his counsel either did not appear or was unprepared to argue on three occasions, and failed to file a brief in support of the motions. No appeal was taken, although, as shall be *704 discussed below, the record shows that Thomas expected his counsel to pursue the reinstatement of his post-trial motions and to arrange for the filing of a direct appeal.
On July 25, 1977, Thomas was sentenced on the voluntary deviate sexual intercourse conviction to a prison term of 11 to 23 months. He was given credit on the sentence for the approximately fifteen months he had been in custody as a pretrial detainee on the robbery charges. It appears from the record that Thomas became angered by his counsel's failure to pursue the post-trial motions, and became involved in an altercation with his counsel in the presence of the sentencing judge, who sentenced him to an additional term of thirty days for contempt of court.
On October 25, 1977, the post-trial motions from the robbery and related offenses were denied. On November 29, 1977, Thomas was sentenced to ten to twenty years on the robbery conviction; five to ten for conspiracy; two to five on the weapons offense; and one to five for the terroristic threatsall sentences to run concurrently. On direct appeal the robbery and related convictions were affirmed by the Pennsylvania Superior Court, and the Pennsylvania Supreme Court denied allocatur.
On August 4, 1977, prior to his sentencing on the robbery and related offenses and following his sentencing on the voluntary deviate sexual intercourse conviction, Thomas filed a pro se petition for habeas corpus with the state court, seeking reinstatement of his post-trial motions in connection with the voluntary deviate sexual intercourse conviction. He alleged that his counsel's conduct amounted to ineffective assistance of counsel. After a hearing at which he was represented by new counsel, the court dismissed his petition, ruling that his sole remedy was by way of the state's Post Conviction Hearing Act (P.C.H.A.), 42 Pa.Cons.Stat.Ann. § 9541 et seq. (Purdon's 1983). His counsel was directed to refile under the P.C.H.A., but instead appealed the dismissal of the habeas petition. On December 26, 1978, the Pennsylvania Superior Court affirmed the trial court's dismissal of the habeas petition.
In November of 1978, Thomas filed another petition for a writ of habeas corpus in the state court, claiming that the fifteen months he spent in custody following his arrest on the robbery charge should be credited to the robbery sentence rather than to the voluntary deviate sexual intercourse conviction. The trial court denied his habeas petition, the Superior Court affirmed, and the Pennsylvania Supreme Court denied allocatur.
On September 4, 1979, Thomas filed yet another petition for habeas corpus in the state court attacking his voluntary deviate sexual intercourse conviction, alleging that the statute under which he had been found guilty was unconstitutional and that he had received ineffective assistance of counsel. After a hearing on October 15, 1979, at which Thomas was represented by counsel, the court again directed counsel to withdraw the habeas petition and refile under the Post Conviction Hearing Act, which was done. On November 6, 1980, following a hearing, the court dismissed his P.C.H.A. petition on the ground that since he was no longer in custody on the voluntary deviate sexual intercourse conviction, he therefore was ineligible for relief. Although state court factual determinations are afforded a presumption of correctness under 28 U.S.C. § 2254(d), it does not appear that the state court made any factual findings on the ineffective assistance of counsel claim when it dismissed the P.C.H.A. petition on jurisdictional grounds. Once again, the Superior Court affirmed the dismissal of the petition, and the Pennsylvania Supreme Court denied allocatur. In May of 1980, the Pennsylvania Supreme Court had decided that the statute pursuant to which Thomas was found guilty of voluntary deviate sexual intercourse was unconstitutional. Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980); Commonwealth v. Waters, 281 Pa.Super. 535, 422 A.2d 598 (1980).
*705 II. Discussion
The Magistrate Report details the prolonged and futile efforts of this pro se inmate to obtain relief. This Court will briefly address the issues raised by the Commonwealth in connection with the federal court's jurisdiction to consider Thomas' claims. The Commonwealth contends that Thomas has not satisfied the exhaustion requirement of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), and further contends that he has waived his right to an adjudication of the claims which he has set forth in the habeas petition filed with this Court.
This Court finds that Thomas has presented all of his claims for federal habeas relief to the state court in one form or another. He has satisfied the exhaustion requirement of Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). His ineffective assistance of counsel claim was "fairly presented" to the highest state court as required by Humphrey v. Cady, 405 U.S. 504, 517 n. 18, 92 S.Ct. 1048, 1056 n. 18, 31 L.Ed.2d 394 (1972); see also, United States ex rel. Geisler v. Walters, 510 F.2d 887, 892 n. 11 (3d Cir.1975).
The Commonwealth's contention that Thomas has waived his right to an adjudication of his constitutional claims by this Court is also without merit. Assuming that the failure to secure an adjudication of the post-trial motions and to appeal the voluntary deviate sexual intercourse conviction constitutes a procedural default, "a habeas petitioner may escape the effect of a procedural default by showing, depending on the nature of the default, either that (1) the petitioner did not deliberately bypass the state procedures, see Fay v. Noia, 372 U.S. 391, 438-39, 83 S.Ct. 822, 848-49, 9 L.Ed.2d 837 (1963), or (2) that there was cause for and actual prejudice from the procedural default, see Wainwright v. Sykes, 433 U.S. 72, 90-91, 97 S.Ct. 2497, 2508, 53 L.Ed.2d 594 (1977)." United States ex rel. Caruso v. Zelinsky, 689 F.2d 435, 441 (3d Cir.1982). The deliberate bypass standard is applicable where the default involves the failure to take a direct appeal. See Wainwright v. Sykes, 433 U.S. at 91-94, 97 S.Ct. at 2508-10 (Burger, C.J., concurring); Beaty v. Patton, 700 F.2d 110, 113 (3d Cir.1983). In Beaty, the court stated "[b]efore a federal court may proceed to consider his petition, [Relator] must demonstrate that this default was not a `deliberate by-pass' of the state court. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); Boyer v. Patton, 579 F.2d 284 (3d Cir.1978). [Relator] need not meet the stricter `cause and prejudice' standard set forth in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), because his default involved a decision regarding an appeal." 700 F.2d at 113.
This Court agrees with the Magistrate's determination that in this case Thomas has not waived his right to an adjudication of his constitutional claims. The record clearly shows that Thomas did not "deliberately by-pass" the state procedures in such a way as to constitute "an intentional relinquishment or abandonment of a known right or privilege," see Fay v. Noia, 372 U.S. at 439, 83 S.Ct. at 849, quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). Thomas repeatedly attempted to raise his grounds for relief in the state court. The Commonwealth points out that he "fired" his second counsel after being informed that his post-trial motions would not be heard because counsel had failed to file a brief and had been unprepared for argument. In light of Thomas' efforts to obtain relief on his own and with the assistance of other counsel, this Court cannot conclude that he deliberately by-passed the state procedures for direct appeal. Furthermore, this Court agrees with the Magistrate's determination that Thomas also has shown cause for and actual prejudice from the procedural defaults. It is clear that the primary cause for any procedural default on the issue of the statute's unconstitutionality was the failure of his counsel to pursue Thomas' post-trial motions and to carry out Thomas' expectation that an appeal would be filed. Thomas nevertheless *706 attempted to litigate the constitutional issue by filing a habeas corpus petition which the state court dismissed with the recommendation that Thomas' counsel should file a Post-Conviction Hearing Act petition. Instead counsel chose to appeal the court's dismissal of the habeas petition. After the Superior Court ruled on that appeal, Thomas' constitutional attack on the voluntary deviate sexual intercourse conviction was dismissed on the ground that he was no longer "in custody" on that conviction. As heretofore pointed out, the inactions, omissions, and delays of counsel have prejudiced Thomas by preventing him from pursuing his claim that he was found guilty pursuant to an unconstitutional statute.
A. Custody
The Commonwealth also contends that this Court is without jurisdiction to decide the merits of the petition attacking the voluntary deviate sexual intercourse conviction because Thomas has served his sentence for that offense and cannot be considered to be "in custody" for the purposes of 28 U.S.C. §§ 2241(c)(3) and 2254(a).
28 U.S.C. § 2241(c)(3) provides:
(c) The writ of habeas corpus shall not extend to a prisoner unless
(3) He is in custody in violation of the Constitutional or laws or treaties of the United States ...
Likewise, 28 U.S.C. § 2254(a) provides:
(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
In U.S. ex rel. DiRienzo v. State of New Jersey, 423 F.2d 224 (3d Cir.1970), the Third Circuit held that where "invalidation of the first conviction would eventually lead to a shortening of the second, present sentence, the District Court has jurisdiction to grant review of relator's [prior] conviction." 423 F.2d at 227. There the court quoted with approval a Fifth Circuit decision which held that the custody requirement was satisfied if the setting aside of the earlier conviction "would result in [the Relator] receiving credit in some degree" on the second sentence. 423 F.2d at 226, quoting Capetta v. Wainwright, 406 F.2d 1238, 1239 (5th Cir.1969), cert. denied, 396 U.S. 846, 90 S.Ct. 55, 24 L.Ed.2d 96 (1969).
In Lyons v. Brierley, 435 F.2d 1214, 1216 (3d Cir.1970), the court reaffirmed the DeRienzo decision in holding that federal habeas corpus jurisdiction existed "to determine the validity of a prior sentence which has already expired if its invalidity would result in a credit for some of the time served under it against the subsequent valid sentence." 435 F.2d at 1216. Recently, the Third Circuit, once again relying on DiRienzo and Lyons, held that an individual was "in custody" for the purpose of 28 U.S.C. § 2255 where the prior expired conviction under challenge "positively and demonstrably" affects the duration of his confinement under the second sentence. United States v. Jackson, 684 F.2d 245, 247 (3d Cir.1982).
The record of the state court proceedings shows that on July 25, 1977, Thomas was sentenced on the voluntary deviate sexual intercourse offense to a prison term of 11 to 23 months with credit being given for the period of approximately fifteen months that he had served as a pretrial detainee on the robbery and related charges. He was sentenced on November 29, 1977, to a prison term of 10 to 20 years on the robbery and related offenses, which sentence he is presently serving. If the voluntary deviate sexual intercourse conviction is invalidated, Thomas must receive credit for the time he spent in custody as a pretrial detainee on the robbery and related charges. In other words, if this Court invalidates the sex offense conviction, the law of Pennsylvania requires that he receive credit for the time served as a pretrial detainee on the robbery and related charges, which time was originally credited *707 to the voluntary deviate sexual intercourse conviction. See 42 Pa.Cons.Stat.Ann. §§ 9760(1), (3) (Purdon's 1983); Commonwealth v. Bailey, 258 Pa.Super. 364, 392 A.2d 836 (1978); Goins v. Brierley, 464 F.2d 947, 948 (3d Cir.1972); Commonwealth ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966). Therefore, it is clear that this Court has jurisdiction to review Thomas' conviction for voluntary deviate sexual intercourse.
In addition, there is another basis which supports this Court's jurisdiction to review Thomas' conviction for voluntary deviate sexual intercourse. As shall be discussed more fully below, the judge who imposed sentence on the robbery and related convictions not only considered Thomas' prior conviction for voluntary deviate sexual intercourse, but it appears from the record that the prior conviction undoubtedly affected the sentencing judge's appraisal of Thomas' character and the sentences imposed on the robbery and related offenses. If the prior conviction is set aside, Thomas would be entitled to resentencing on the robbery and related offenses. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). For all of these reasons, the Court agrees with the Magistrate's determination that Thomas is "in custody" within the meaning of the federal habeas corpus statutes.
III. The Merits of the Petitions
A. C.A. No. 83-0699
In this action Thomas challenges his conviction for voluntary deviate sexual intercourse on the grounds that (1) the statute under which he was convicted is unconstitutional and (2) his counsel was ineffective. The Magistrate did not address the constitutional argument directly because he concluded that Thomas' counsel was ineffective and that the conviction for voluntary deviate sexual intercourse must be vacated.
At the state Post-Conviction Hearing Act proceeding on October 14, 1980, Thomas' counsel testified that he was assigned to the case after Thomas' first counsel had filed post-trial motions and left the employ of the Public Defender's Office. The second counsel testified that he was not aware that Thomas' case was his responsibility until the post-trial motions were listed the third time for argument. N.T., P.C.H.A. Hearing, October 14, 1980, at 37-38. No brief in support of the post-trial motions was ever filed. Counsel's failure to brief the post-trial motions as required by local court rule results in waiver of the issues set forth in the motions for the purposes of appeal. Commonwealth v. Prisznyak, 306 Pa.Super. 137, 452 A.2d 253 (1982). Counsel contended that he did not pursue the reinstatement of the post-trial motions because Thomas informed him, at the time of their dismissal, that he did not want further representation from him or from anyone associated with the Public Defender's Office. Id. at 39. Thomas testified that he directed counsel to arrange for new counsel to pursue Thomas' post-trial remedies. Id. at 45-46. Counsel subsequently conceded at the P.C.H.A. hearing that his own notes showed that Thomas wanted his counsel to arrange for reinstatement of the post-trial motions and for an appeal of the voluntary deviate sexual intercourse conviction. N.T., P.C.H.A. Hearing, October 14, 1980, at 40-43. The record shows, as heretofore pointed out, that no appeal was ever filed.
Thomas' pursuit of his legal rights has been thwarted at various stages by the omissions of his counsel, which occurred from the failure to effect a meaningful substitution of defense counsel after Thomas' first attorney left the employ of the Public Defender's Office. This Court finds that counsel's failure to diligently pursue the post-trial motions attacking the constitutionality of the statute, as well as counsel's failure to arrange for the appeal desired by Thomas, clearly demonstrate that Thomas has carried his burden of proving that the representation he received was constitutionally inadequate and that he was prejudiced by his counsel's omissions. As the Third Circuit recently has stated, "[Relator] must demonstrate that the representation he received at trial was `constitutionally *708 inadequate,' United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976), and that he was prejudiced by his attorney's inadequacies, United States v. Swinehart, 617 F.2d 336, 340 (3d Cir.1980). The constitutional right to effective counsel demands that the defendant's attorney exercise `the customary skill and knowledge which normally prevails at the time and place' of trial. Johnson, 531 F.2d at 174 (quoting Moore v. United States, 432 F.2d 730, 736 (3d Cir.1970))." Government of the Virgin Islands v. Bradshaw, 726 F.2d 115, 116-117 (3d Cir.1984). It is well-settled that "[t]he failure of counsel to take the simple steps required to file a notice of appeal when instructed by his client to do so constitute such extraordinary inattention to a client as to amount to ineffective assistance of counsel ..." Hollis v. United States, 687 F.2d 257, 259 (8th Cir.1982), quoting Williams v. United States, 402 F.2d 548, 552 (8th Cir.1968). See also A.B.A. Standards for Criminal Justice § 4-8.2(b): "The lawyer should take whatever steps are necessary to protect the defendant's right of appeal." The Commentary to this section states that "taking whatever steps are necessary to protect the right of appeal" may include "perfecting the appeal, even though arrangements may have to be made for other counsel to represent the defendant" in the appeals process.
Ordinarily, when a Court determines that counsel has been ineffective at the trial level, the writ of habeas corpus will issue with the provision that execution of the writ be stayed in order to afford the state the opportunity to re-try the Relator. Further, where the ineffective assistance of counsel is based upon a failure to take an appeal, the writ would be granted subject to the provision that the execution of the writ to be stayed in order to allow Relator the opportunity to file an appeal nunc pro tunc. See Perez v. Wainwright, 640 F.2d 596 (5th Cir.1981). However, under the circumstances of this case, where the ineffective assistance of counsel deprived Thomas of the opportunity to challenge the constitutionality of the statute pursuant to which he was sentenced, a retrial or rehearing at the appellate level would appear to be a meaningless procedure.[1] Therefore, in view of the fact that the Pennsylvania Supreme Court has declared the statute pursuant to which Thomas was convicted unconstitutional, Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980), and in view of the fact, hereinafter discussed, that the conviction pursuant to the unconstitutional statute influenced the imposition of the sentences which he presently is serving, this Court will grant the petition for habeas corpus and declare the conviction for voluntary deviate sexual intercourse invalid.
B. C.A. No. 83-0698
In this action Thomas seeks credit for the time spent in custody as a pretrial detainee on the robbery and related charges, which he claims was unlawfully credited to the voluntary deviate sexual intercourse conviction. Since this Court has vacated the conviction for voluntary deviate sexual intercourse, there now appears to be no question that Thomas should be credited with the approximately fifteen months he spent in custody as a pretrial detainee in connection with the robbery and related charges, the sentences for which he is presently serving. See 42 Pa.Cons.Stat. Ann. §§ 9760(1), (3) (Purdon's 1983); Commonwealth v. Bailey, 258 Pa.Super. 364, 392 A.2d 836 (1978); Goins v. Brierley, 464 F.2d 947, 948 (3d Cir.1972); Commonwealth *709 ex rel. Ulmer v. Rundle, 421 Pa. 40, 218 A.2d 233 (1966).
IV. Resentencing
Thomas has filed a "Request to Supplement" the Magistrate's Report, wherein he contends that he is entitled to be resentenced on the robbery and related convictions because the sentences imposed thereon were influenced by the sentencing judge's consideration of the prior conviction for voluntary deviate sexual intercourse. Thomas was sentenced on the robbery and related charges on November 29, 1977. The sentencing judge on the robbery charges was the same judge who had presided at Thomas' trial where the jury found him guilty of voluntary deviate sexual intercourse and the same judge who had sentenced him on the voluntary deviate sexual intercourse conviction. It was also the same judge who had found him in contempt at the sentencing hearing on the voluntary deviate sexual intercourse conviction in connection with his outburst in the courtroom directed towards his counsel's failure to effectively represent him.
At the sentencing hearing on the robbery and related offenses, the judge noted that he was "particularly concerned about Mr. Thomas' prior record, if any," and stated, "we have observed throughout the proceedings your attitude, and we have to consider that in connection with your prior record ... We believe that it is almost certain, as demonstrated by your prior record, that you would become involved in criminal activity [if placed on probation]." N.T., Sentencing Hearing, November 29, 1977, at 4, 7. The judge also stated:
Now, Mr. O'Hare and Mr. Thomas, as to the effective date of the sentence, some history is necessary. Mr. Thomas was convicted previously in this Court of voluntary deviate sexual intercourse with another prisoner in the Lehigh County Prison. The charge had been one of involuntary deviate sexual intercourse but the jury convicted him of voluntary and this Court imposed a sentence of 11 to 23 months and parole was granted on July 25, 1977. On that day, Mr. Thomas was in this Court. However, and because of his conduct, he was sentenced for 30 days in prison for contempt of Court. That takes us to August 24, and that will be the effective date for release on parole on all prior charges and that is the reason that this sentence commences on that day.
N.T., Sentencing Hearing, November 29, 1977, at 9-10.
In United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the United States Supreme Court considered a case in which the trial judge expressly had considered the defendant's record of previous convictions before imposing sentence. It was later determined that two of the previous convictions had been obtained without the assistance of counsel and were constitutionally invalid. The Supreme Court remanded the case for resentencing because the "sentence [was] founded at least in part upon misinformation of a constitutional magnitude." 404 U.S. at 447, 92 S.Ct. at 592.
The Third Circuit, while acknowledging that "Tucker proscribes consideration of invalid sentences, not mere knowledge of those convictions," remanded a case for resentencing where there were "indications in the record" that the sentencing judge's "appraisal of the [defendant's] character" was influenced by the invalid convictions and "that that appraisal might have affected the judge's sentencing decision." United States ex rel. Fletcher v. Walters, 526 F.2d 359, 363 (3d Cir.1975). Further, the Court stated that "[e]ven though the statements of the sentencing judge do not explicitly reveal his consideration of the invalid conviction, we are of the opinion that the principles of Tucker are best effectuated by resolving any doubts we might have on this issue in favor of resentencing." 526 F.2d at 364. See also United States v. Lyons, 706 F.2d 321, 335 n. 25 (D.C.Cir. 1983) (remand for resentencing if it cannot be established whether the trial court's sentence on a valid conviction was influenced *710 by a conviction on a separate count which was later invalidated on appeal).
In both Tucker and Walters the sentencing court relied upon prior convictions rendered invalid because the defendant was unrepresented by counsel, in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). A number of courts subsequently have held that the Tucker rationale is applicable to prior convictions invalidated on constitutional grounds other than the Sixth Amendment right to counsel. See, e.g., Martinez v. United States, 464 F.2d 1289, 1290 (10th Cir.1972) (invalid statutory presumption); Jefferson v. United States, 488 F.2d 391, 393 (5th Cir.1974) (Fifth Amendment right against self-incrimination); Stead v. Link, 540 F.2d 923, 927 (8th Cir.1976) (remand for resentencing if sentencing court considered convictions based upon involuntary guilty pleas); Portillo v. United States, 588 F.2d 714 (9th Cir.1978) (Tucker may apply to prior conviction invalidated on Fourth Amendment grounds). The Ninth Circuit has held that the Tucker remedy would apply where the sentencing court considered a prior state conviction which was invalid due to ineffective assistance of counsel. Brown v. United States, 610 F.2d 672, 675 (9th Cir.1980). The court concluded that for the purpose of the Tucker inquiry "the right to the assistance of counsel and the right to effective assistance of counsel are constitutional equivalents." 610 F.2d at 675. Recently the United States Supreme Court has indicated that its holding in Tucker is not limited solely to prior uncounselled convictions: "As we held in United States v. Tucker ... the sentence must be set aside if the trial court relied at least in part on `misinformation of a constitutional magnitude' such as prior uncounselled convictions that were unconstitutionally imposed," Zant v. Stephens, ___ U.S. ___, ___, 103 S.Ct. 2733, 2749 n. 33, 77 L.Ed.2d 235 (1983) (emphasis added). This Court concludes that the Tucker rationale is applicable to the present case, given its determination that the prior conviction must be vacated because Thomas received ineffective assistance of counsel in violation of Sixth Amendment rights and that the statute pursuant to which he had been found guilty has been declared unconstitutional.
In this case there are clear "indications in the record" that the sentencing judge's "appraisal" of the petitioner's character was influenced by the invalid conviction, and that such appraisal might have affected the sentencing decision. This Court believes that the petitioner is entitled to a new sentencing hearing on the robbery charges without consideration of the conviction for voluntary deviate sexual intercourse. Thomas will, of course, be entitled to credit on the resentence for the time that he was in custody as a pretrial detainee in the robbery and related charges, as well as the time already served in connection with the robbery and related convictions.
V. Conclusion
For the reasons set forth above, this Court has determined that Thomas received ineffective assistance of counsel. In view of the fact that the Pennsylvania Supreme Court has declared the statute pursuant to which Thomas was convicted unconstitutional, and in view of the fact that the conviction pursuant to the unconstitutional statute influenced the imposition of the sentence Thomas presently is serving, this Court will grant the petition for writ of habeas corpus in No. 83-0699 and declare the conviction for voluntary deviate sexual intercourse invalid. Further, for the reasons stated above, the petition for a writ of habeas corpus in No. 83-0698 also will be granted, with the execution of the writ to be stayed for ninety days in order to afford the Commonwealth an opportunity to arrange for the resentencing of Thomas on the robbery and related convictions (Lehigh County case Nos. 1494 through 1497 (1976)), with the understanding that in connection with said resentencing Thomas shall be credited with the time served as a pretrial detainee on the robbery and related charges as well as with the time already *711 served in connection with the robbery and related convictions.
NOTES
[1] The allowance of an appeal nunc pro tunc (to raise Thomas' constitutional challenge) would be meaningless because the Pennsylvania appellate courts, in a nunc pro tunc direct appeal, apply current case law. Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981); Commonwealth v. McCloud, 477 Pa. 204, 383 A.2d 894 (1978); Commonwealth v. Little, 432 Pa. 256, 248 A.2d 32 (1968). Thus, regardless of the retroactivity of the Bonadio decision invalidating the statute, Thomas' conviction for voluntary deviate sexual intercourse inevitably would be reversed on a nunc pro tunc appeal. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597482/ | 583 F.Supp. 1566 (1984)
Diane HERCEG and Andy Vines, Plaintiffs,
v.
HUSTLER MAGAZINE, INC., Defendant.
Civ. A. No. H-82-0198.
United States District Court, S.D. Texas, Houston Division.
May 1, 1984.
Robert B. Wallis, Haynes & Fullenweider, Houston, Tex., for plaintiffs.
Jack Price, Austin, Tex., for defendant.
ORDER
McDONALD, District Judge.
Came on to be heard Defendant Hustler Magazine, Inc.'s Motion to Dismiss Plaintiffs' Amended Original Complaint, or Alternatively, to Strike a Claim. Having considered *1567 the arguments of the parties and the applicable law, the Court is of the opinion that the Motion should be DENIED.
I. Motion to Dismiss
Initially, it should be noted that Defendant does not state upon what legal grounds it seeks dismissal of Plaintiffs' Complaint. The Court has inferred that the Defendant wishes to base its Motion upon Plaintiffs' alleged failure to state a claim upon which relief can be granted. The standard by which such a Motion is to be decided is well-established. A Rule 12(b)(6) motion to dismiss should not be granted unless it appears from the pleadings beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Oaxaca v. Roscoe, 641 F.2d 386, 389 (5th Cir.1981).
Defendant's Motion is, however, clearly predicated upon two specific factual arguments. First, Defendant asserts that Plaintiffs have failed to allege "incitement" under the First Amendment, as the Order granting Plaintiffs leave to amend their Complaint instructed Plaintiffs. See Herceg v. Hustler Magazine, Inc., 565 F.Supp. 802, 805 (S.D.Tex.1983). Second, Defendant argues that even if Plaintiffs have pled incitement, Plaintiffs cannot meet the legal test for incitement and therefore the case at bar should be dismissed.
The Court has considered these two arguments and finds them to be without merit.
First, the Court has determined that Plaintiffs' Amended Original Complaint adequately pleads incitement. Specific, detailed factual legal averments are not necessary under the pleading requirements of the Federal Rules of Civil Procedure. Instead, the overall scheme of the Federal Rules of Civil Procedure calls for relatively skeletal pleadings and places the burden of ascertaining the underlying factual details on the discovery process. See generally Wright & Miller, Federal Practice & Procedure: Civil § 1376. Moreover, the Plaintiffs' Complaint satisfies the notice requirements of Rule 8 of the Federal Rules of Civil Procedure. Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Mitchell v. E-Z Way Towers, Inc., 269 F.2d 126, 130-32 (5th Cir.1959). The pleader enjoys the benefit of the doubt in the courts construction of the pleadings. Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir.1980); Brown v. Joiner Int'l Inc., 523 F.Supp. 333, 336 (S.D.Ga.1981). In the case at bar, Defendant is on notice of the claim pressed against it. In addition, the Complaint alleges more than mere legal conclusions that Defendant incited Plaintiffs' decedent to take his life. Compare Hanson v. Town of Flower Mound, 679 F.2d 497, 504 (5th Cir.1982) (plaintiffs' recital of Fourth Amendment claim did not put defendant town on notice that alleged police stop of automobile without probable cause was at issue).
Defendant's second argument in favor of dismissal appears to be that Plaintiffs cannot meet the legal test for "incitement" and that the Complaint consequently should be dismissed. This argument also must fail. A 12(b)(6) motion, as discussed above, concerns only whether a Plaintiff could under any set of facts prove a cause of action. This Court has previously determined in this case that "[i]t is conceivable that plaintiffs could prove facts showing that Hustler's article was `directed to incite or produce' the death, which would entitle them to relief." Herceg, 565 F.Supp. at 805 (footnote omitted). Thus, the question is not, as Defendant suggests, whether the evidence supports the cause of action at hand. Instead, whether the Plaintiffs can meet the test for incitement depends on determinations to be made by the trier of fact.[1]
*1568 II. Motion to Strike
Defendants also have moved to strike "all allegations relating to liability, other than those directly relating to incitement." This request is unspecific and overly broad, and will therefore be denied. However, the Defendant is hereby granted leave to refile a more tailored motion to strike if it so chooses.
Accordingly, it ORDERED, ADJUDGED, and DECREED that the Motion be and hereby is DENIED.
The Clerk shall file this Order and provide a true copy to counsel for all parties.
NOTES
[1] Determining whether civilly actionable "incitement" has occurred demands resolution of three separate questions: 1) Did the subject matter of the speech in question entail advocacy of the use of force to violate the law?; 2) If so, was the advocacy directed to inciting or producing imminent lawless action?; and 3) If so, who is the advocacy likely to incite or produce such imminent lawless action? See Olivia N. v. National Broadcasting Sys., 126 Cal.App.3d 488, 178 Cal. Rptr. 888 (1981), citing Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Many factual determinations would have to be made before these three questions could be answered. See, e.g., Carey v. Population Servs. Int'l., 431 U.S. 678, 701, 97 S.Ct. 2010, 2024, 52 L.Ed.2d 675 (1977) (distinguishing between advertisements producing action and those merely stating the availability of products and services); United States v. Howell, 719 F.2d 1258, 1260 (5th Cir.1983) (distinguishing "advocacy" from "threat"). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597486/ | 818 So.2d 672 (2002)
Rabbi Israel POLEYEFF, as personal representative of the estate of Eugenie Poleyeff, deceased, and Frederica E. Breaux, as administratrix of the estate of Zachary Charles Breaux, deceased, Appellants,
v.
CITY OF MIAMI BEACH, Appellee.
Nos. 3D00-3536, 3D00-3405.
District Court of Appeal of Florida, Third District.
June 12, 2002.
*673 Grossman & Roth; Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, and Joel Eaton; Abramowitz & Pomerantz; and Nancy Little Hoffman, for appellants.
Holland & Knight and Daniel S. Pearson and Christopher N. Bellows; Murray Dubbin, for appellee.
Before COPE, GREEN and SORONDO, JJ.
PER CURIAM.
Rabbi Israel Poleyeff, as personal representative of the estate of Eugenie Poleyeff, and Frederica Breaux, as administratrix of the estate of Zachary Breaux, appeal from separate final summary judgments entered in favor of the City of Miami Beach.
On the authority of this Court's en banc decision in Poleyeff v. Seville Beach Hotel Corp., 782 So.2d 422 (Fla. 3d DCA 2001), review denied, Nos. 01-1227, 01-1228, 817 So.2d 849 (Fla. March 22, 2002), we hold that "an entity which does not control the area or undertake a particular responsibility to do so has no common law duty to warn, correct, or safeguard others from naturally occurring, even if hidden, dangers common to the waters in which they are found." Id. at 424.[1],[2]
Affirmed.
GREEN and SORONDO, JJ., concur.
COPE, J. (dissenting).
The majority opinion is contrary to controlling decisions of the Florida Supreme Court, and this court.
I.
These are wrongful death actions brought against the City of Miami Beach on account of two drownings. Ms. Eugenie Poleyeff, a tourist staying at a nearby hotel, went to the public beach at 29th Street. She rented a beach chair and umbrella from Hurricane Beach Rentals *674 ("Hurricane Rentals"), which is located there. Hurricane Rentals operates under a concession from the City of Miami Beach, for which the City receives revenue.
Ms. Poleyeff went swimming. She was caught in a rip tide and called for help.
Zachary Breaux, also a vacationing tourist, had likewise rented a beach chair from Hurricane Rentals and was on the beach at that time. He heard Ms. Poleyeff's cries for help. While his wife and daughter tried to find a lifeguard, Mr. Breaux went into the water to try to rescue Ms. Poleyeff. Both Ms. Poleyeff and Mr. Breaux were overcome by the rip currents and drowned.
When lifeguards arrived from the closest lifeguard station (21st Street), five other swimmers had to be rescued from the same rip currents. The lifeguards recovered Ms. Poleyeff's body from sixty yards offshore. Mr. Breaux was brought in by other swimmers.
On the day of this tragedy, the lifeguard stand at 21st Street had posted warnings regarding rip tides. There was no lifeguard stand at 29th Street, and no warnings about rip tides were posted at that location.
The estates of Ms. Poleyeff and Mr. Breaux brought separate wrongful death actions against multiple defendants. They sued the City of Miami Beach because the City controls the beach under a lease from the State of Florida. The estates alleged that the City was negligent in failing to warn swimmers of the danger of rip tides, or take other steps to safeguard those who used the beach.[3]
The City moved for summary judgment on the theory that it was entitled to sovereign immunity. The trial court granted the City's motion, and the estates have appealed.
On appeal, the City concedes that it is not entitled to sovereign immunity. However, the City argues that the summary judgment should be affirmed on the alternative theory that it owed no legal duty to the decedents to warn them, or otherwise take measures to protect them, from naturally occurring conditions in the water.
II.
It is undisputed that the City controls this part of the beach. As the Florida Supreme Court has explained:
In 1982, the State entered into a management agreement with the City [of Miami Beach] allowing the City to manage South Beach. The management agreement: (1) provided that the State "holds title" to the beach property; (2) granted the City "management responsibilities" of the beach for twenty-five years; (3) required the City to submit a "management plan" providing for "the limitation and control of land and water related activities such as boating, bathing, surfing, rental of beach equipment, and sale of goods and services to the public;" and (4) required the City to pay the State twenty-five percent of revenues collected from private concessionaires.
*675 Florida Dept. of Natural Resources v. Garcia, 753 So.2d 72, 74 (Fla.2000) (emphasis in original).
The City entered into a concession agreement with Hurricane Rentals which allowed Hurricane Rentals to operate a rental stand at 29th Street. Hurricane Rentals had a Tiki hut from which it rented beach lounges, umbrellas, water craft, and beach equipment. The City receives revenue from Hurricane Rentals' operations. See id. at 76.
The City built facilities at the 29th Street location for the use of swimmers and other beachgoers. The facilities included public showers, restrooms, drinking fountains, and parking. The City provided access to the beach from its boardwalk.
The City was well aware that beachgoers swam at this and other concession stand locations. The City has promulgated rules and regulations for beachfront concession operations. Where, as here, the concessionaire is renting watercraft, the regulations require a separation of the swimming area from the access channel used by the water craft.[4]
In Florida Dept. of Natural Resources v. Garcia, the court considered the liability of the State for an in-water accident on South Beach. In that case the plaintiff was a swimmer who had been injured on submerged construction debris. The court considered the exact area of beach which is at issue in the case now before us. In Garcia, as in the present case, there had been no formal designation by the state or local government of the beach as a swimming area.
The Florida Supreme Court said:
A governmental entity that operates a swimming facility "assumes the common law duty to operate the facility safely, just as a private individual is obligated under like circumstances." Avallone v. Board of County Comm'rs, 493 So.2d *676 1002, 1005 (Fla.1986); see Butler v. Sarasota County, 501 So.2d 579 (Fla.1986). Thus, a government entity operating a public swimming area will have the same operational-level duty to invitees as a private landownerthe duty to keep the premises in a reasonably safe condition and to warn the public of any dangerous conditions of which it knew or should have known. See e.g., Avallone, 493 So.2d at 1005; Brightwell v. Beem, 90 So.2d 320, 322 (Fla.1956); Hylazewski v. Wet'N Wild, Inc., 432 So.2d 1371, 1372 (Fla. 5th DCA 1983).
The core question presented in this case is whether a formal designation as a swimming area by the State is a prerequisite to the State's liability for breach of duty to operate the swimming facility safely, and if not, what must be shown before a duty of care to operate the swimming area safely arises. This Court's decision in Avallone did not expressly require the government entity to "designate" a public swimming area as a precondition to assuming liability for failing to operate the swimming area safely. 493 So.2d at 1005. However, the Court in Butler found the government entity to be liable because it created "a designated swimming area where the dangerous condition existed." 501 So.2d at 579. Thus, our prior cases do not squarely resolve this question.
The appellate courts addressing this issue have focused on whether the government entity held the area out to the public as a suitable place to swim, rather than relying solely on whether the government had "designated" the area for swimming....
. . . .
In this case, although the State itself had not formally designated South Beach to be a public swimming area, there is no dispute that South Beach was held out as a public swimming area by the City. Further, the State made a conscious decision to allow South Beach to be operated as a public swimming area when it signed the management agreement with the City. The management agreement unquestionably demonstrates that the State was aware that the City would operate South Beach as a public swimming area and the State does not contend otherwise.
In fact, the State's management agreement demonstrates more than just an acquiescence by the State to allow the City to operate South Beach. The management agreement required the City to submit a management plan detailing "the limitation and control of land and water related activities such as boating, bathing, surfing, rental of beach equipment, and sale of goods and services to the public." (Emphasis supplied). Additionally, the State required the City to submit twenty-five percent of all revenues collected from private concessionaires. Therefore, the State actually derived revenue from the City's operation of South Beach.
We conclude that the fact that the State never formally "designated" the beach as a public swimming area is not dispositive of whether the government owes an operational-level duty to safely operate a public swimming area if sufficient facts exist to demonstrate that the area was held out to the public as a public swimming area. The focus of the inquiry is not whether a formal designation occurred. Rather, as in Warren and Andrews[ v. Dept. of Natural Resources, 557 So.2d 85, 89 (Fla. 2d DCA 1990)], the actions of the government entity must be examined to determine whether, based on all the circumstances, the government entity held the area out to the public as a swimming area or led *677 the public to believe the area was a designated swimming area.
. . . .
Certainly, we would agree with the State that it would be an intolerable and unnecessary burden to expect the State to post "No Swimming" signs up and down its expansive coastline on the chance that residents of the State may, on their own, select a particular area to enjoy the ocean or other waterways. On the other hand, where an area such as South Beach is a well-known public swimming area, from which the State is actively deriving profit, the State has no basis for claiming immunity from suit merely because a formal designation as a state park did not occur.
753 So.2d at 75-77 (some emphasis in original, some emphasis added).
In this case, the question is the liability of the City rather than the State, but it is the same beach and the same management agreement. The same principles apply.
As stated in the Garcia opinion, this is a well known public swimming area. Under the agreement with the State, the City was required to do a management plan for land and water related activities, including swimming. Id.
As relates to the 29th Street location, the City entered into a concession agreement with Hurricane Rentals to provide beach and water equipment. The City obtained income from that rental activity. The City contemplated that there would be swimmers congregating at the concession stand locations, because the City's rules require the concessionaire to provide an access channel for water craft which is clearly separated by a line of buoys from the swimming area. The City provided showers, restrooms, and parking in the vicinity.
Plainly the City is operating a swimming facility within the meaning of Garcia. Indeed, after Garcia there is no room left for the City to make a contrary argument. The City thus has a duty to use due care to operate the swimming area safely, as stated in Garcia. Id. at 75.
III.
The City argues that it has no duty to warn, or take other action, to protect swimmers from naturally occurring conditions in the water. This argument is contrary to clearly controlling Florida Supreme Court precedent.
To reiterate the law as stated in Garcia:
A governmental entity that operates a swimming facility "assumes the common law duty to operate the facility safely, just as a private individual is obligated under like circumstances." Thus, a government entity operating a public swimming area will have the same operational-level duty to invitees as a private landownerthe duty to keep the premises in a reasonably safe condition and to warn the public of any dangerous conditions of which it knew or should have known.
753 So.2d at 75 (citations omitted).
The City argues that the Garcia case should be distinguished because it involves submerged construction debris left over from the demolition of a pier. The City acknowledges that a duty of care exists with respect to a manmade submerged object, which was the situation existing in Garcia.
The City contends, however, that there is no duty to warn, or take other precautions, with respect to a naturally occurring condition in the ocean, such as rip tides. This argument has already been rejected by the Florida Supreme Court.
*678 In Sarasota County v. Butler, 476 So.2d 216 (Fla. 2d DCA 1985), quashed, Butler v. Sarasota County, 501 So.2d 579 (1986), the nine-year-old decedent went swimming at South Lido Beach in Sarasota County. The decedent
drowned and his body was recovered the next day. The record indicates that the tides and currents were strong and the underlying lands contained drop-offs. The complaint alleged that Sarasota County was negligent because it failed to post warning signs or other warning devices alerting beach-goers to the dangerous conditions, failed to provide lifeguards or other protection and failed to provide safety or rescue equipment to be used in emergencies. Such omissions were alleged as the proximate cause of the decedent's death.
476 So.2d at 216-17. The Second District reversed a jury verdict in favor of the estate of the child, saying that the County was entitled to sovereign immunity.
The Florida Supreme Court reversed, ruling that once the County had decided to operate the area as a swimming facility, it had assumed the "`common law duty to operate the facility safely just as a private individual is obligated under like circumstances.'" Butler v. Sarasota County, 501 So.2d at 579 (citations omitted). The court explained that "[i]n this instance, the public owner did not create the specific dangerous condition but did create a designated swimming area where the dangerous condition existed." Id. (emphasis added).
The only dangerous conditions identified in that case were strong currents and drop-offs in the underlying land. Obviously these are naturally occurring conditions in the waters adjacent to the beach. That is the situation now before us.
In Butler, Chief Justice McDonald dissented saying that "[g]overnmental entities should not be liable for naturally occurring dangerous conditions in bodies of waters adjacent to public beaches." 501 So.2d at 580. That argumentwhich is the City's argument in the present casewas rejected by the Butler majority.
When Butler and Garcia are read together, it is clear that under controlling Florida Supreme Court precedent, the summary judgment in this case must be reversed. The City is operating a well known swimming beach. The plaintiffs' claim is that the risk of rip tides in that area was well known to the City, and that the City failed to use due care to warn of dangerous conditions or otherwise keep the premises reasonably safe. The City posted no warning signs regarding rip currents and did not establish a lifeguard standeven though the City was actively receiving revenues from Hurricane Rentals at that location. An affirmance of the summary judgment in favor of the City is simply not permissible under the controlling supreme court decisions cited above.
IV.
The City's entire position in this appeal is based on a portion of this court's en banc opinion in Poleyeff v. Seville Beach Hotel Corp., 782 So.2d 422 (Fla. 3d DCA 2001) (en banc). The actual holding of that case has been previously stated:
As in Adika [v. Beekman Towers, Inc., 633 So.2d 1170 (Fla. 3d DCA 1994)], we hold that an entity which does not control the area or undertake a particular responsibility to do so has no common law duty to warn, correct, or safeguard others from naturally occurring, even if hidden, dangers common to the waters in which they are found.
782 So.2d at 424 (footnotes omitted). As explained earlier in this opinion, the City does control this particular area and, for *679 that matter, has also undertaken a particular responsibility to do so under its agreement with the State of Florida. The Poleyeff opinion also stated:
It is enough to say that drowning because of a natural characteristic of the very waters in which it occurs is simply one of the perhaps rapidly diminishing set of circumstances for which, without more, no human being or entity should be considered "to blame," deemed "at fault" or, therefore, held civilly liable. While the law of torts may properly serve to distribute risks among those whom society, speaking through the courts, holds responsible for a particular unwelcome event, it should not be employed to assign faultwith the result that the transfer of money is required when none can be fairly said to exist. In this instance, in other words, because there is no wrong, there can be no remedy. See Penelas v. Arms Technology, Inc., 778 So.2d 1042 (Fla. 3d DCA 2001). It has also been said that
[a] common law duty exists when a court says it does because it thinks it should.
Schuster v. Banco De Iberoamerica, S.A., 476 So.2d 253, 254, 255 (Fla. 3d DCA 1985) (majority and dissenting opinions). Adika reflected our belief that the duties for which the plaintiffs so ably contend should not be recognized. We still feel that way.
782 So.2d at 425-26.
The City reads this passage (which is dictum) as saying that under no circumstances can itor anyone else, for that matterbe held liable for a naturally occurring condition in the water. But as the context of the passage indicates, this court was discussing the liability of hotel owners whose hotels adjoined, or were near, the beach. The neighboring hotel owners neither controlled the beach nor had otherwise undertaken a particular responsibility to do so.
In any event, there are Florida Supreme Court decisions squarely on the point. Our earlier Poleyeff decision must be interpreted in a way which harmonizes with the applicable Florida Supreme Court decisions.
The summary judgment must therefore be reversed.
NOTES
[1] The facts in the present case are accurately set forth in this Court's first Poleyeff opinion, and in part I of Judge Cope's dissent herein.
[2] We reiterate our agreement with the dictum in our first Poleyeff opinion, "that drowning because of a natural characteristic of the very waters in which it occurs is simply one of the perhaps rapidly diminishing set of circumstances for which, without more, no human being or entity should be considered "to blame," deemed "at fault" or, therefore, held civilly liable. While the law of torts may properly serve to distribute risks among those whom society, speaking through the courts, holds responsible for a particular unwelcome event, it should not be employed to assign faultwith the result that the transfer of money is requiredwhen none can be fairly said to exist. In this instance, in other words, because there is no wrong, there can be no remedy." Id. at 425.
[3] The estates also sued the hotels at which the decedents stayed (the Seville Hotel and Saxony Hotel) as well as Hurricane Rentals, contending that they should have warned the decedents about the dangers of rip currents. Summary judgments for those entities were affirmed by this court because "an entity which does not control the area or undertake a particular responsibility to do so has no common law duty to warn, correct, or safeguard others from naturally occurring, even if hidden, dangers common to the waters in which they are found." Poleyeff v. Seville Beach Hotel Corp., 782 So.2d at 422, 424 (Fla. 3d DCA 2001) (en banc)(footnotes omitted).
[4] The rules and regulations state, in part:
17. The following are particular regulations which apply to Concessionaires offering Water Recreational Equipment:
. . . .
B. All rental operations of water craft must have a "chase boat" available....
C. The operation of all water sport activity should be outside the 300 foot swimming area ("guarded area") and no closer than 400 feet to the nearest lifeguard stand(s). The location of beachfront operations shall be subject to the approval of appropriate City Departments. The Concessionaire must instruct renters in safety precautions to avoid contact with swimmers beachfront.
. . . .
E. Concessionaires are responsible for instructing clients on safe operation of equipment including advisement to stay away from "guarded area."
F. The "guarded area" is to include 300' east of the shoreline or 100' from the nearest bather.
G. The Concessionaire must identify, through a channel marked by removable buoys, an access route through which renters of water recreational equipment may leave the beachfront and enter open water. The marked channel shall extend 300 ft. perpendicular to the shore line and must be marked with orange buoys, a minimum of 18 inches in diameter, four (4) on each side of the channel, equally spaced.
. . . .
Q. All water sports concessions must be approved by the City's Marine Authority and by the City Manager or his designee.
. . . .
23. The City also reserves the right to revoke a Concessionaire's license(s) due to noncompliance with the Rules and Regulations herein specified.
Rules and Regulations for Beachfront Concession Operations (R. 262-64). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597488/ | 583 F.Supp. 1530 (1984)
AAA TIRE FINISHING EQUIPMENT & SUPPLIES, INC.
v.
TIRE COSMOTOLOGY, INC., et al.
Civ. A. No. 81-365.
United States District Court, E.D. Louisiana.
April 17, 1984.
Irwin R. Sanders, Metairie, La., for plaintiff.
*1531 E. Wayne Walker, Metairie, La., for defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
BEER, District Judge.
The circumstances surrounding this controversy are, to say the least, somewhat obscure. Two corporations and one individual are named defendants in the suit but only the individual, Jim Satterfield, exists at this time though he has never appeared before the Court. One of the corporate defendants, Quality Whitewall Chemicals, was an assumed name used by Satterfield to market a product made by the other corporate defendant, Tire Cosmotology, Inc., also owned and run by Satterfield. This suit involves alleged anti-trust violations which occurred when Satterfield promoted a predatory pricing scheme using the name Quality Whitewall Chemicals to undercut the price of an identical product sold by the plaintiff in an attempt to gain a monopoly on the market. At trial, plaintiff produced only one witness, Mr. Roy Williams, the president and principal stockholder of the plaintiff corporation. Defendants' case was completed upon cross examination of Mr. Williams.
To the extent any of the following findings of fact constitute conclusions of law, they are adopted as such. To the extent any conclusions of law constitute findings of fact, they are so adopted.
Findings of Fact
1. Plaintiff, AAA Tire Finishing Equipment & Supplies, Inc. (AAA), is a corporation organized and existing under the laws of the State of Louisiana and engaged in the business of manufacturing and selling machinery and supplies used in the application of whitewalling materials to the tires of automobiles and trucks. AAA first entered this business in 1973 and now sells its products on a national scale.
2. Defendant, Tire Cosmotology, Inc., is a corporation organized and existing under the laws of the State of Texas and has its principal place of business in Dallas, Texas. It is engaged in the manufacture and sale of tire customizing equipment, including machinery to apply whitewalls to automotive tires. Tire Cosmotology also sells the supplies used by its machinery and has been engaged in this business on a national scale since 1976. Tire Cosmotology and AAA have recognized each other as competitors over the years, both vying for the other's share of a rather limited market.
3. Defendant, Quality Whitewall Chemicals (Quality), is an assumed name under which Jim Satterfield, the president and sole shareholder of Tire Cosmotology, marketed certain supplies used in the tire whitewalling and customizing process. The principal product marketed by Quality was a "Polymer," the substance applied to a tire to create a whitewall. This same product was produced and sold by Tire Cosmotology and AAA.
4. Satterfield created Quality in 1979 apparently for the sole purpose of marketing a similar, if not the actual, polymer produced and sold by his other corporation, Tire Cosmotology. The polymer was sold under this assumed name for approximately one year through a national marketing scheme which included advertisements in trade journals, fliers mailed to businesses related to the tire industry, and post cards sent to individuals.
5. In this suit, plaintiff, AAA, contends that Satterfield, doing business as Tire Cosmotology, created Quality for the specific purpose of driving AAA out of the market place by selling a polymer identical to that being sold by AAA at a price below cost. As evidence of this predatory pricing scheme, AAA has produced a flier mailed by Quality to potential customers announcing a "special introductory offer" in which Quality's complete line of tire refinishing and whitewalling chemicals are offered at substantial price reductions. More specifically, Quality offers its polymer, which it states regularly sells for $37.00 a gallon, for only $19.95 a gallon. AAA sells its polymer, which it claims to be nearly identical to that sold by Quality, for $39.50 per gallon. Tire Cosmotology sells the same polymer for $59.95 per gallon.
*1532 6. It appears that Satterfield ceased marketing his polymer under the assumed name of Quality within one year of its inception. Tire Cosmotology seems to have been dissolved by Satterfield after the bank foreclosed on its loans to the corporation some time in February, 1981. Other evidence indicates, however, that Satterfield has maintained the use of the name "Tire Cosmotology" even after the corporation was financially unable to continue in operation.
Conclusions of Law
1. The Court has jurisdiction over this controversy which arises under the Sherman Act, 15 U.S.C. § 2 et seq., the Clayton Act, 15 U.S.C. § 13 et seq. and the Robinson-Patman Act, 15 U.S.C. § 13a et seq.
2. The Sherman Act § 2, 15 U.S.C. § 2, provides:
"Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor...."
3. Plaintiff's claim to damages arises under section 4 of the Clayton Act, which provides that:
Any person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefore in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.
15 U.S.C. § 15.
4. In meeting its burden of proof under section 4, plaintiff must prove (1) a violation of the anti-trust laws, (2) cognizable injury attributable to the violation, and (3) at least the approximate amount of the damage. Chrysler Credit Corp. v. J. Truett Payne, Inc., 607 F.2d 1133, 1135 (5th Cir.1979); Lee Moore Oil Co. v. Union Oil Co., 599 F.2d 1299, 1306 (4th Cir.1979). To satisfy (1) above, plaintiff alleged and attempted to show at trial that it was a victim of defendants' attempt to gain a monopoly of certain tire customizing product markets through predatory pricing.
5. Predatory pricing violates § 2 of the Sherman Act, 15 U.S.C. § 2, when there is an attempt to monopolize, see United States v. American Tobacco Co., 221 U.S. 106, 31 S.Ct. 632, 55 L.Ed. 663 (1911); § 2 of the Clayton Act, 15 U.S.C. § 13, when the predation includes price discrimination, see Moore v. Mead's Fine Bread Co., 348 U.S. 115, 75 S.Ct. 148, 99 L.Ed. 145 (1954) and § 3 of the Robinson-Patman Act, 15 U.S.C. § 13a under any circumstances. The issues, with regard to predation are the same under all those provisions. Malcolm v. Marathon Oil Co., 642 F.2d 845, 853 n. 16 (5th Cir.1981).
6. Predatory pricing differs from healthy competitive pricing in its motive: a predator by his pricing practices seeks to impose losses on other firms, not to gain for himself. For such a practice to violate the anti-trust laws, however, there must be, in addition to proof of price differences, evidence sufficient to support a finding that the lower price, in the market area in which it occurred, did substantially lessen competition, or tended to create a monopoly. A price discrimination within the meaning of the anti-trust laws is simply a price difference, F.T.C. v. Anheuser-Busch, Inc., 363 U.S. 536, 549, 80 S.Ct. 1267, 1274, 4 L.Ed.2d 1385 (1960), but price discrimination is not illegal per se, Continental Baking Co. v. Old Homestead Bread Co., 476 F.2d 97, 103 (10th Cir.1973). Encouraging competition while at the same time forbidding anti-competitive behavior often requires walking a fine line.
7. In Atlas Building Prod. Co. v. Diamond Block & Gravel Co., 269 F.2d 950, 954 (10th Cir.1959), the Court said:
"... Antitrust legislation is concerned primarily with the health of the competitive process, not with the individual competitor who must sink or swim in competitive enterprise. But as a necessary incident thereto, it is concerned with predatory *1533 price cutting which has the effect of eliminating or crippling a competitor."
8. By the express wording of the anti-trust statutes, the effect on competition must be substantial. Trivial, remote, or inconsequential effect is not enough. "There must be something more than an essentially temporary minimal impact on competition." American Oil Company v. F.T.C., 325 F.2d 101, 106 (7th Cir.1963). See also, Continental Baking Company v. Utah Pie Company, 349 F.2d 122, 150 (10th Cir.1965). "It is settled law that a mere diversion of business from one competitor to another does not signify detriment to competition on the seller level." International Air Ind., Inc. v. American Excelsior Co., 517 F.2d 714 (5th Cir.1975) (hereinafter referred to as International Air).
9. In International Air, supra, the Fifth Circuit reviewed the burden of proof required of a plaintiff claiming damage under the antitrust laws for price discrimination. It noted that the mere loss of profits indicated nothing more than the fact that plaintiff was forced to charge a competitive price because it was faced with competition. A showing of more than competitive pricing and a shift of customers was necessary. "Evidence of certain types of predatory conduct, we feel, would fulfill the requirements." Id. at 722. The Court went on to address the problem of determining "predatory intent" and eventually applied a "cost-based" test as opposed to a "subjective intent" test, to analyze the discriminator's purpose. Id. at pp. 722-725.
10. In applying the "cost-based" test to the facts before it, the Court in International Air concluded:
"Thus, even if a monopolist is price discriminating, we will not infer damage to competition as a matter of law if the firm is charging a short-run, profit-maximizing price (above average variable cost) in the market in which it faces competition. And, even if its price is below this level, we will not infer damage to competition if the firm's price discrimination has beneficial effects or insignificant effects in the competitive market. In short, in order to prevail as a matter of law, a plaintiff must at least show that either (1) a competitor is charging a price below his average variable cost in the competitive market or (2) the competitor is charging a price below its shortrun, profit-maximizing price and barriers to entry are great enough to enable the discriminator to reap the benefits of predation before new entry is possible." (Underlining added.)
Id. at p. 724. While this discussion was directed to the elements necessary to sustain a motion for directed verdict, it is mentioned here for the limited purpose of indicating the complexity of the issues and the substantial weight of the burden placed upon the plaintiff in supporting a predatory pricing claim.
11. Turning to the facts in the record before us, this Court has no choice other than to conclude that the plaintiff has failed to meet this burden. In fact, the entirety of plaintiff's claim is based upon mere allegations and unsupported charges. As mentioned previously, the only witness to testify on plaintiff's behalf was the president and principal shareholder of plaintiff corporation. His testimony was that he became aware of plaintiff's selling tactics when he received one of Quality's fliers in the mail. As mentioned previously, that advertisement announced a special introductory offer price of $19.95 per gallon for Quality's polymer. Mr. Williams then testified that the polymer sold by his company was basically the same as that sold by Quality although he admitted that he had not tested the product. He also stated that he produced his polymer for approximately $15.00 per gallon and did not believe that Quality could cover its costs selling its polymer for only $19.95 per gallon, although again he admitted not knowing the specific costs of the component ingredients of Quality's polymer or its overhead costs.
Furthermore, the record is totally void of such critical information as the duration of defendant's marketing scheme, its impact on the industry, and defendant's success (or lack thereof) in gaining a monopoly. *1534 Plaintiff attempted to make a requisite showing of its damages resulting from Quality's alleged predatory pricing but the Court finds this evidence inconclusive. As an aside, it is also noted that both defendant corporations, Quality and Tire Cosmotology, have been dissolved and plaintiff, AAA, continues to exist, displaying a healthy annual rate of growth.
In view of the aforementioned reasons, plaintiff's suit is hereby dismissed. Counsel for defendants will submit a judgment consistent with the above. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597496/ | 818 So.2d 538 (2002)
Richard Wade SMELTZ, Appellant,
v.
STATE of Florida, Appellee.
No. 2D01-2458.
District Court of Appeal of Florida, Second District.
January 18, 2002.
NORTHCUTT, Judge.
In December 1999 Richard Wayne Smeltz received a twenty-four-month prison sentence after pleading to a charge of committing a lewd act in the presence of a child. When sentencing Smeltz, the trial court designated him as a sexual predator. Just under a year later, Smeltz filed a petition for relief from the designation because his prior offense, a misdemeanor, did not satisfy the statutory requisites for sexual predator designation. The trial court granted Smeltz's petition and struck the designation by order rendered February 6, 2001. The State did not seek review of the order.
Eighty days later, on April 27, 2001, the trial court rendered a second order. This one denied Smeltz's petition on a procedural ground, i.e., that a sexual predator designation is neither a sentence nor a punishment and the rules of criminal procedure do not apply to it. Citing this court's decisions in State v. Colley, 744 So.2d 1172 (Fla. 2d DCA 1999), and Coblentz v. State, 775 So.2d 359 (Fla. 2d DCA 2000), the trial court concluded that a person in Smeltz's situation must seek relief by filing a separate civil action, such as an action for declaratory judgment. Smeltz has appealed this order, contending the court lacked jurisdiction to render it. We agree.
The trial court correctly appreciated that for procedural and jurisdictional purposes *539 sexual predator designations take place outside the rubric of criminal proceedings. See Collie v. State, 710 So.2d 1000, 1013 (Fla. 2d DCA 1998) (pointing out, among other things, that the legislative intent behind sexual predator designation statute is civil rather than criminal); Angell v. State, 712 So.2d 1132, 1132 (Fla. 2d DCA 1998) (affirming denial of motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 without prejudice to defendant's right to seek relief from sexual predator designation by any available civil remedy); Colley, 744 So.2d at 1174 (noting that, arguably, State's appeal of trial court's refusal to designate defendant as sexual predator could be treated as one brought pursuant to Florida Rule of Appellate Procedure 9.130(a)(4), governing nonfinal orders entered after final judgment in civil cases).
The court was mistaken, however, in its belief that Smeltz could seek relief only by filing a separate civil action. In Coblentz, we noted that it was arguable that the trial court "could, perhaps should" have treated the defendant's motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) as, instead, a motion for relief from judgment under Florida Rule of Civil Procedure 1.540. Coblentz, 775 So.2d at 360. Indeed, the rules of civil procedure apply to "actions of a civil nature" and to "special statutory proceedings." Fla. R. Civ. P. 1.010. Therefore, when attacking his sexual predator designation, Smeltz was entitled to invoke the issuing court's jurisdiction to grant relief from its own judgment pursuant to rule 1.540.
We emphasize that we do not pass on the merits of Smeltz's petition for relief, whether on grounds set forth in rule 1.540 or otherwise. The February 6, 2001, order granting the petition is not before us. Rather, our decision is mandated by the fact that the trial court had jurisdiction pursuant to rule 1.540 to entertain Smeltz's petition, and it rendered an order granting the requested relief. When it did so, the court's jurisdiction over the matter terminated. It could not revisit the issue eighty days later. Amwest Sur. Ins. Co. v. State, 721 So.2d 408 (Fla. 5th DCA 1998).
Accordingly, the April 27, 2001, order denying Smeltz's petition for supplemental relief is quashed. To the extent, if any, that the order may have affected the efficacy of the February 6, 2001, order granting the petition, the February 6, 2001, order is reinstated.
WHATLEY and SALCINES, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597530/ | 39 Wis.2d 196 (1968)
158 N.W.2d 914
KENOSHA TEACHERS UNION LOCAL 557 and another, Appellants,
v.
WISCONSIN EMPLOYMENT RELATIONS COMMISSION, Respondent.
No. 254.
Supreme Court of Wisconsin.
Argued May 6, 1968.
Decided June 4, 1968.
*201 For the appellants there was a brief by Goldberg, Previant & Uelmen of Milwaukee, and oral argument by Richard M. Goldberg.
For the respondent the cause was argued by William H. Wilker, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
CONNOR T. HANSEN, J.
This appeal presents two issues:
(1) Whether the trial court erred in not determining as a matter of law that one motivating factor in the nonrenewal of Spaight's contract was his involvement in union activities.
(2) Whether there is substantial evidence, in view of the record as a whole, to support the determination of the WERC that nonrenewal of Spaight's contract was not motivated by his union activities.
(1) We have carefully reviewed the entire record in this proceeding and conclude that in this particular case the question of whether union activity was a motivating factor in the nonrenewal of the teaching contract was a question of fact and not one of law.
Appellants contend that the fourth reason enumerated by Hosmanek in support of his recommendation relates to a brief, but heated discussion which occurred between *202 the librarian and Spaight in the professional library. It is uncontroverted that the topic of discussion was unionism and teaching professionalism. It is also undisputed that the librarian reported the incident to Hosmanek who later mentioned this to Spaight as an example of the latter's unprofessional attitude. However, the undisputed occurrence of the incident does not, in and of itself, constitute a motivating factor as a matter of law. The incident must be viewed within the scope of the relationship between Hosmanek and Spaight. Spaight was not exceptionally active in the union. He was neither an organizer, nor an officer, agent or steward. Hosmanek testified that at the time he began evaluating Spaight he had no knowledge of Spaight's participation in either the KTU or the Kenosha Education Association (KEA). He also testified that when he composed the teacher evaluation during Spaight's second year, the only indication Hosmanek had of Spaight's relation to the KTU was the librarian's complaint relating to the library incident.
Therefore the question of whether the library incident constituted a motivating factor, was a question of fact and properly within the scope of the WERC's review. We deem it significant that the WERC made the following specific finding:
"... the refusal of the School Board to renew Spaight's teaching contract was not motivated for the purpose of discouraging activity or membership in any employe organization, including the KTU, and that the action by the School Board in this regard was based on Spaight's performance and behavior in relationship to his teaching position." (Emphasis added.)
The findings of the WERC in this case were rendered over a year before the decision of this court in Muskego-Norway Consolidated Schools Joint School Dist. No. 9 v. Wisconsin Employment Relations Board (1967), 35 Wis. 2d 540, 151 N. W. 2d 617. However, both the trial court and the WERC were cognizant of the motivating *203 factor criteria as explained by this court in Muskego-Norway, supra, page 562:
"Although these cases (several federal cases) all involve a construction of unfair labor practices under the Wagner Act, the case of St. Joseph's Hospital v. Wisconsin Employment Relations Board[3] adopts their legal conclusion that an employee may not be fired when one of the motivating factors is his union activities, no matter how many other valid reasons exist for firing him."
The appellants possessed the burden of proof before the WERC. The appellants must establish that the union activity of Spaight was a motivating factor in the nonrenewal of his contract by the clear and satisfactory preponderance of the evidence. See sec. 111.07 (3), Stats.;[4]Century Building Co. v. Wisconsin Employment Relations Board (1940), 235 Wis. 376, 382, 291 N. W. 305.
The trial court correctly concluded that in this case a question of fact was presented for determination by the WERC and not a question of law.
(2) Appellants contend that the findings and conclusions of the WERC are erroneous and not supported by substantial evidence in view of the record as a whole. Appellants specifically contest the finding that the nonrenewal of Spaight's contract was not motivated by union activities but was based upon his performance and behavior in relation to his teaching position.
In Muskego-Norway Consolidated Schools Joint School Dist. No. 9 v. Wisconsin Employment Relations Board, *204 supra, this court reiterated the standard of judicial review of the findings of the WERC. It is well established that under sec. 227.20 (1) (d), Stats.,[5] judicial review of WERC findings determines whether or not the questioned finding is supported by "substantial evidence in view of the entire record."
In Copland v. Department of Taxation (1962), 16 Wis. 2d 543, 554, 114 N. W. 2d 858, this court explained what is meant by substantial evidence by quoting from an article entitled "Substantial Evidence" in Administrative Law, 89 Univ. of Pa. L. Rev. (1941), 1026, 1038:
"`[T]he term "substantial evidence" should be construed to confer finality upon an administrative decision on the facts when, upon an examination of the entire record, the evidence, including the inferences therefrom, is found to be such that a reasonable man, acting reasonably, might have reached the decision; but, on the other hand, if a reasonable man, acting reasonably, could not have reached the decision from the evidence and its inferences then the decision is not supported by substantial evidence and it should be set aside.'"
Moreover, in Copland, this court noted that substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and then determined:
"We deem that the test of reasonableness is implicit in the statutory words `substantial evidence.' However, *205 in applying this test the crucial question is whether a reviewing court is only to consider the evidence which tends to support the agency's findings, or whether it is also to consider the evidence which controverts, explains, or impeaches the former. Use of the statutory words `in view of the entire record as submitted' strongly suggests that the test of reasonableness is to be applied to the evidence as a whole, not merely to that part which tends to support the agency's findings."
Appellant's contention is based upon the allegedly adverse attitudes of Principal Hosmanek and upon an analysis of the reasons supporting Hosmanek's written recommendation of nonrenewal.
Concerning Principal Hosmanek's attitudes, the WERC filed an explanatory memorandum along with its findings, which memorandum detailed the complaints against him and concluded:
"We have carefully reviewed the testimony and other evidence surrounding the decision of Hosmanek to recommend the non-renewal of the teaching contract of Colin Spaight for the 1965-66 school year. We are satisfied that Hosmanek's recommendation and the determination by the School Board in the non-renewal of Spaight's teaching contract was not motivated by his concerted activity on behalf of either of the organizations, or the lack thereof, and therefore, we have concluded that such action did not constitute unlawful discrimination against Spaight nor was it intended to unlawfully interfere, restrain or coerce any of the teachers in the employ of the School Board."
As previously stated, in the evaluation of Spaight by Hosmanek when making his ultimate recommendation to the Board of Education, the tenure status of Spaight was a matter for consideration. Hosmanek was not the sole source of this evaluation. Charles Danke, assistant principal, testified that it was his duty to help evaluate teachers who had not gained tenure status. He recommended to Principal Hosmanek that the contract of Spaight not be renewed. All of the observations of *206 Danke upon which his recommendation is based relate solely and only to the teaching ability of Spaight. These observations are also supported by the teacher evaluation summary of him. It is also significant that the contracts of two other teachers were not renewed for the same general reasons and one of these teachers was very active in the Kenosha Education Association which was an association allegedly given preferential treatment as to KTU.
The WERC is the judge of the credibility of the witnesses and the reviewing court is not to substitute its judgment for the judgment of the board. St. Francis Hospital v. Wisconsin Employment Relations Board (1959), 8 Wis. 2d 308, 318, 98 N. W. 2d 909; St. Joseph's Hospital v. Wisconsin Employment Relations Board, supra, 401, 402.
It is, therefore, our determination that the findings of the WERC are supported by substantial evidence when considering the entire record.
By the Court.Judgment affirmed.
WILKIE, J., took no part.
NOTES
[3] (1953), 264 Wis. 396, 59 N. W. 2d 448.
[4] "111.07 Prevention of unfair labor practices.
". . .
"(3). A full and complete record shall be kept of all proceedings had before the board, and all testimony and proceedings shall be taken down by the reporter appointed by the board. Any such proceedings shall be governed by the rules of evidence prevailing in courts of equity and the party on whom the burden of proof rests shall be required to sustain such burden by a clear and satisfactory preponderance of the evidence."
[5] "227.20 Scope of review. (1) The review shall be conducted by the court without a jury and shall be confined to the record, except that in cases of alleged irregularities in procedure before the agency, testimony thereon may be taken in the court. The court may affirm the decision of the agency, or may reverse or modify it if the substantial rights of the appellant have been prejudiced as a result of the administrative findings, inferences, conclusions or decisions being:
". . .
"(d) Unsupported by substantial evidence in view of the entire record as submitted;..." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597531/ | 818 So.2d 1181 (2002)
Kelvin TURNER
v.
STATE of Mississippi.
No. 1999-KA-00411-SCT.
Supreme Court of Mississippi.
June 6, 2002.
*1182 Kelvin Turner, appellant pro se, Edmund J. Phillips, Jr., Newton, for appellant.
Office of the Attorney General by Scott Stuart, for appellee.
Before SMITH, P.J., WALLER and COBB, JJ.
COBB, Justice, for the Court.
¶ 1. This case is before this Court on appeal from a judgment entered on a jury verdict of the Scott County Circuit Court, finding Kelvin Turner guilty of aggravated assault upon a law enforcement officer. The trial judge sentenced Turner to serve thirty years without parole as a habitual offender. On appeal, Turner's court-appointed counsel filed a Killingsworth brief, *1183 which in its entirety stated: "[t]he record in this case is almost devoid of objection by Appellant overruled and motion by Appellant denied. Counsel for Appellant regards this appeal without merit." Counsel's certification that he had mailed a copy to Turner, also requested the Court to allow Turner twenty-five days to file a pro se supplemental brief, which Turner subsequently filed.
¶ 2. This Court previously concluded that the procedure followed by Turner's counsel was inadequate to safeguard Turner's right to counsel, overruled Killingsworth v. State, 490 So.2d 849 (Miss.1986), and adopted new procedures to be utilized in situations previously controlled by Killingsworth. See Turner v. State, 818 So.2d 1186, 1189 (Miss.2001). Further, this Court reopened the briefing schedule for additional briefing. Id.
¶ 3. Turner's counsel filed a supplemental brief, following the new procedures established by this Court. He stated that Turner "is unlikely to prevail on appeal" and that, after scouring the record thoroughly, he "found nothing beyond the conflicts between the testimony of Turner and that of Police Officer Dean." Further, applying the proper standard of review, he stated: "Because the credible evidence consistent with guilt must be accepted as true, and because the prosecution must be given the benefit of favorable inferences that may be reasonably drawn from the evidence, the case is not winnable on appeal" (citing Hammond v. State, 465 So.2d 1031, 1035 (Miss.1985); Harveston v. State, 493 So.2d 365, 370 (Miss.1986); and Spikes v. State, 302 So.2d 250, 251 (Miss. 1974)).
¶ 4. Turner also filed a pro se supplemental brief, repeating verbatim his original version of the facts, which corresponded closely with his testimony at trial. He raised three issues which are stated as follows (edited):
I. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE TURNER GUILTY BEYOND A REASONABLE DOUBT.
II. WHETHER INCONSISTENCIES AND CONTRADICTIONS IN TESTIMONY WARRANT REVERSAL.
III. WHETHER THE COURT ERRED BY ADMITTING EVIDENCE THAT TURNER HAD PRIOR CONVICTIONS.
¶ 2. Determining that there is no merit to Turner's assignments of error, we affirm the trial court's judgment.
FACTS
¶ 3. The indictment charging Turner read in pertinent part as follows:
[Turner] did willfully, unlawfully, feloniously, purposely and knowingly attempt to cause bodily injury to Ricky Dean, a human being, with a deadly weapon, to-wit: a handgun, by pointing the handgun at the said Ricky Dean and pulling the trigger at a time when the said Ricky Dean was acting within the course and scope of his duty as a law enforcement officer with the City of Forest, Mississippi, Police Department, Contrary to and in violation of 97-3-7(2)(b), Miss.Code Ann. (1972).
¶ 4. At trial, only three witnesses testified. Officers Jimmy Dean and Mike Lee of the Forest Police Department, and Kelvin Turner. As would be expected, the jury heard two entirely different versions of what happened the night of the encounter between Turner and Officer Dean. Details of the events which led to this appeal are:
¶ 3. While on duty as a uniformed patrol officer for the Forest Police Department, Jimmy Dean saw a pickup truck parked in the driveway of a vacant lot. Dean shined his lights into the truck and *1184 saw two males sitting inside. One of them got out of the truck, began walking toward the patrol car, explaining why he was parked in the driveway of the vacant. lot. The other man, later identified as Kelvin Turner, was asked by Officer Dean if he would talk to him. Turner then ran because he was a convicted felon and was in possession of a pistol. As Officer Dean ran in pursuit, Turner stumbled and fell to the ground with his hands underneath him. When Dean told Turner to put his hands out where he could see them, Turner continued to hold them beneath his body where Dean could not see them. As Dean attempted to pull Turner's left arm out from underneath his body, Turner rolled over and put his gun to Dean's forehead. Dean backed off, Turner pulled the trigger but the gun merely clicked and did not fire.
¶ 4. Officer Dean called for backup, then pursued Turner, who ran back to where the truck was parked. By that time a second officer, Thompson, arrived, and Dean and Turner began to struggle again. Officer Dean subdued Turner with mace, and the officers then arrested him.
¶ 5. The testimony of the witnesses at trial was in direct conflict regarding whether Turner ever pointed his pistol at Dean's head and pulled the trigger. Officer Dean testified that he did, but Turner testified that he threw the gun away during the chase because he did not want to be caught with the gun and also because he was about to fall and did not want to fall on the gun. Turner denied ever pointing the gun at Dean and denied ever pulling the trigger....
Turner v. State, 2001 WL 624974, *1 (Miss.2001).
STANDARD OF REVIEW
¶ 5. In Smith v. State, 802 So.2d 82, 85 (Miss.2001), this Court enunciated the well-established standard of review as to the sufficiency of the evidence as follows:
When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the evidencenot just that supporting the case for the prosecutionin the light most consistent with the verdict. We give the prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fairminded jurors in the exercise of impartial judgment might have reached different conclusions, the verdict of guilty is thus placed beyond our authority to disturb.
I. WHETHER THE EVIDENCE WAS INSUFFICIENT TO PROVE TURNER GUILTY BEYOND A REASONABLE DOUBT.
¶ 6. In support of his statement that the evidence was insufficient, Turner relies on Gibson v. State, 660 So.2d 1268 (Miss.1995), but his reliance is misplaced. In Gibson, this Court reversed because Gibson merely pointed a gun at the officer and lowered it upon command of the officer. By way of contrast, there was testimony in the present case that Turner pointed the gun at Dean and pulled the trigger. The gun merely clicked; it did not fire. There was testimony that Turner attempted to fire a second time, and again *1185 the gun clicked and did not fire. Finally, there was evidence that Dean withdrew from Turner, and Turner appeared to be attempting to "rack, maybe, a bullet in it."
¶ 7. The evidence was sufficient to meet the State's burden of showing that Turner pointed his handgun at Dean, a law enforcement officer acting within the scope of his duties, and pulled the trigger. Further, this evidence was sufficient to allow a reasonable and fairminded juror to find Turner guilty of aggravated assault upon Officer Dean, pursuant to Section 97-3-7(2)(b). This assignment of error has no merit.
II. WHETHER INCONSISTENCIES AND CONTRADICTIONS IN TESTIMONY WARRANT REVERSAL.
¶ 8. Next, Turner argues that the failure to test the gun, the failure to see Turner pull the trigger, and Dean's statement that he was not sure what happened created inconsistencies sufficient to reverse the conviction. However, Dean testified that the gun was in his face and clicked. He was sure it clicked a second time, but he was not certain that he saw and heard Turner rack the gun before the second click, and that he was just trying to get out of there.
¶ 9. "It is well settled that in such a case of conflicting testimony, each distinct view is absorbed into the minds of the jury as the finders of fact, and it is within the province of the jury to determine the credibility among several witnesses." Hughes v. State, 724 So.2d 893, 896 (Miss.1998) (citing Jackson v. State, 614 So.2d 965, 972 (Miss.1993)).
¶ 10. It is clear that the jury is the only arbiter of the credibility of witnesses. Collier v. State, 711 So.2d 458, 462 (Miss.1998). When asked to reverse on the ground of inconsistencies or contradictions in testimony, we have held this is clearly in the jury's province and refused. Id. "Jurors are permitted, indeed have the duty, to resolve the conflicts in the testimony they hear. It is enough that the conflicting evidence presented a factual dispute for jury resolution." Groseclose v. State, 440 So.2d 297, 300 (Miss.1983) (quoting Gandy v. State, 373 So.2d 1042, 1045 (Miss.1979)). This assignment of error is without merit.
III. WHETHER THE COURT ERRED BY ADMITTING EVIDENCE THAT TURNER HAD PRIOR CONVICTIONS.
¶ 11. Turner claims that he was denied a fair trial because his attorney told the judge, or allowed the judge to know, about Turner's prior convictions. He did not object to the argument made by the State, so he waived any objection and is procedurally barred from raising it for the first time on appeal. Nevertheless, we will briefly address the merits.
¶ 12. Turner testified on direct examination that he had two prior convictions for possession of cocaine and one prior for possession of a firearm by a felon. Turner also testified that he entered pleas of guilty to those crimes and served his time.
¶ 13. In closing, Turner's counsel argued that Turner entered pleas of guilty and told the truth. He apparently made that argument to support his position that Turner was telling the truth about what happened when he was arrested in the case sub judice. It was Turner's trial strategy to convince the jury that it should believe Turner's version of the facts and reject Officer Dean's version of the facts.
¶ 14. The State responded that the jury should look at the person and their background when determining the credibility of the witnesses. When Turner testified about his prior convictions, to convince the jury that he was telling the truth, it was *1186 appropriate for the State to ask the jury to consider those same facts in determining credibility.
¶ 15. A prosecutor's reference to the defendant in closing that is fully supported by the defendant's own testimony is not error. Lacy v. State, 629 So.2d 591, 593 (Miss.1993). The trial judge is in the best position to determine the prejudicial effect of a comment in closing argument. Alexander v. State, 520 So.2d 127, 131 (Miss.1988). This issue is without merit.
CONCLUSION
¶ 16. Turner's counsel properly followed the new procedures set forth in Turner v. State, and after scouring the record, he found nothing on which he believed the case could be winnable on appeal. Counsel notified Turner of his right to file a supplemental pro se brief, and this Court has considered Turner's brief and independently reviewed the record. Sufficient evidence exists to support the guilty verdict, and the errors assigned by Turner are without merit. We affirm the judgment of the Scott County Circuit Court.
¶ 17. CONVICTION OF AGGRAVATED ASSAULT ON A LAW OFFICER AND SENTENCE OF THIRTY (30) YEARS AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE BENEFIT OF PAROLE, SUSPENSION OR REDUCTION OF SENTENCE, AND PAY A FINE OF FIVE THOUSAND DOLLARS ($5,000.00), AFFIRMED.
PITTMAN, C.J., McRAE AND SMITH, P.JJ., WALLER, DIAZ, EASLEY, CARLSON AND GRAVES, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597592/ | 583 F.Supp. 1087 (1984)
Herman FRIEDLANDER, Plaintiff,
v.
Jerry C. NIMS, et al., Defendants.
Civ. A. No. C82-1900A.
United States District Court, N.D. Georgia, Atlanta Division.
April 17, 1984.
Richard B. Dannenberg, Henry A. Brachtl, New York City, Edward L. Greenblatt, Atlanta, Ga., for plaintiff.
J. Wallace Adair, Ralph J. Savarese, Gaspare J. Bono, Washington, D.C., for Timex Corp.
ORDER
SHOOB, District Judge.
On September 30, 1983, the Court dismissed the claims against Timex Corporation subject to plaintiff's right to amend within fifteen days. 571 F.Supp. 1188. Plaintiff did not amend the complaint within the time allowed. On January 6, 1984, the Court directed the entry of final judgment of dismissal as to Timex. After judgment was entered, Timex filed its bill of costs. Presently before the Court is the *1088 objection by plaintiff to Timex's bill of costs.
Timex seeks the following costs:
Fees of court reporter $597.40
Fees for copies of papers 142.80
Docket fees 22.50
Computerized legal research 1039.75
________
TOTAL $1802.45
Plaintiff objects to the fees of the court reporter, fees for copies of papers, that portion ($2.50) of the docket fees that corresponds to the filing of a deposition, and the expenses of computerized legal research.
Taxation of costs is governed by 28 U.S.C. § 1920. That section states:
A judge or clerk of any court of the United States may tax as costs the following:
. . . . .
(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;
. . . . .
(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
....
The Court will analyze the challenged costs separately.
Fees of court reporter
Timex seeks to recover the fees of a court reporter for a copy of the transcript of a deposition of plaintiff. Plaintiff objects to this item because the parties had agreed to waive the filing of that deposition, because a copy was unnecessary for use in the case, and because the cost was high.
The Court concludes that the deposition copy was necessarily obtained by Timex for use in the case, even if it was not required to be filed. Although the cost was high, it was reasonable. The Court will therefore allow the item.
Fees for copies of papers
Timex seeks reimbursement for photocopies of documents filed with the Court and served upon the other parties. Plaintiff objects to this item as constituting office overhead. If the photocopies were for the attorneys' own use, the Court would agree; but because Timex was required to file and serve copies of its pleadings, the costs of those copies are appropriate under 28 U.S.C. § 1920(4).
Docket fee
Plaintiff objects to the $2.50 docket fee for filing the deposition of plaintiff. Because the record shows that another defendant actually filed the deposition, the Court will disallow that item.
Computerized legal research
Timex claims $1039.75 as costs of computerized legal research. In support of that claim, Timex cites Independence Tube Corp. v. Copperweld Corp., 543 F.Supp. 706 (N.D.Ill.1982). That case has summarized the leading cases allowing the taxation of the costs of computerized legal research:
Although the cost of computerized legal research is not on the list of taxable costs in section 1920, "a district court retains limited discretion under Rule 54(d) to award as costs of suit expenses not specifically allowed by statute...." State of Illinois v. Sangamo Construction Co., 657 F.2d [855] at 864 n. 11 [7th Cir.1981]. The use of computer aides [sic] in research is "reasonable, if not essential, in contemporary legal practice," Wehr v. Burroughs Corp., 619 F.2d 276, 285 (3d Cir.1980), and "replaces by instantaneous and supposedly infallible retrieval, many hours which would be billable if performed by human talent." Pitchford Scientific Instruments Corp. v. Pepi, Inc., 440 F.Supp. 1175, 1178 (W.D.Pa.1977), aff'd, 582 F.2d 1275 (3d Cir.1978), cert. denied, 440 U.S. 981, 99 S.Ct. 1790, 60 L.Ed.2d 242 (1979).
Independence Tube Corp., 543 F.Supp. at 723.
*1089 The Court finds that computerized legal research is, like other legal research, part of an attorney's preparation of a case. Although the line between attorney's fees and costs may be indeterminate, the Court believes that expenses for computerized legal research fall within the rubric of attorney's fees rather than that of costs. That use of a computer is "reasonable, if not essential, in contemporary legal practice" makes no difference: books, typing or word processing, office space, and even paralegal assistance are "reasonable, if not essential," and their costs are part of the total cost of an attorney's services. Nor does it matter that attorneys often bill their overhead for computer research as a separate item: many attorneys also bill typing and paralegal assistance costs separately.
The Court notes that another judge of this district has held that expenses of computer research are recoverable by a party as costs when the expenses have not been previously included in an award of attorney's fees. See O'Donnell v. Georgia Osteopathic Hospital, Inc., 99 F.R.D. 578, 581-2 (N.D.Ga.1983) (Hall, J.). In that case the court rejected, as exalting form over substance, an argument that expenses of computer research were exclusively a component of attorney's fees. Id. at 581. This Court disagrees. The substance of the work is legal research; the form of that research, whether with computer or microfilm or books, should not alter that fact, and litigants should not have the option of designating expenses of legal research as costs. Accordingly, the Court declines to follow O'Donnell v. Georgia Osteopathic Hospital and Independence Tube Corp. v. Copperweld Corp.; the Court instead holds that expenses of computerized legal research are properly considered a component of attorney's fees and are not recoverable as costs. See also Leftwich v. Harris-Stowe State College, 702 F.2d 686, 695 (8th Cir.1983); Wolfe v. Wolfe, 570 F.Supp. 826, 827-8 (D.S.C.1983); Babb v. Sun Co., 562 F.Supp. 491, 495 (D.Minn.1983); Dick v. Watonwan County, 562 F.Supp. 1083, 1110 (D.Minn.1983); Guinasso v. Pacific First Federal Savings and Loan Ass'n, 100 F.R.D. 264 (D.Or.1983).
Conclusion
For the reasons stated above, the Court DISALLOWS costs in the amount of $2.50 for a docket fee and $1039.75 for expenses of computerized legal research. Plaintiff shall pay Timex Corporation costs totaling $760.20. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597593/ | 818 So.2d 1213 (2002)
APAC-MISSISSIPPI, INC., Appellant,
v.
JHN, INC., Sam Hollenhead and Jeanette Hollenhead, Appellees.
No. 2001-CA-00566-COA.
Court of Appeals of Mississippi.
May 28, 2002.
*1215 Dewitt T. Hicks, Jr., P. Nelson Smith, Columbus, attorneys for appellant.
H. Russell Rogers, Starkville, attorney for appellees.
Before SOUTHWICK, P.J., THOMAS, and IRVING, JJ.
SOUTHWICK, P.J., for the court.
¶ 1. APAC filed suit against JHN, Inc., and BancorpSouth to confirm title in itself to a particular piece of property. Instead, title was confirmed in JHN and its lender, but with APAC having the right to sell such lots from a platted subdivision within the parcel as were necessary to satisfy a default judgment. On appeal, APAC argues that the chancellor erred in finding that the relevant deed through which it claimed the property was only an equitable mortgage, and also erred in reforming the property description. JHN, Inc., and a third-party plaintiff cross-appeal and allege that APAC had committed fraud. We affirm in all respects.
STATEMENT OF FACTS
¶ 2. On June 7, 1999, APAC was granted a default judgment against Hollenhead Construction Services, Inc. in the amount of $191,760.18. The judgment represented amounts owed by Hollenhead for road construction completed by APAC at various sites, including the Spring Valley Estates subdivision.
¶ 3. In July 1999, Scott and Steve Hollenhead approached APAC, on behalf of Hollenhead Construction, to discuss payment of the judgment. A meeting was held between the Hollenheads and officials *1216 for APAC, including in-house counsel Timothy Bixler, controller Mike Bersen, and outside counsel Dewitt T. Hicks. The Hollenheads informed APAC that they were attempting to obtain refinancing for their operations and wished for delay. APAC was not interested and would proceed with executing on Hollenhead Construction's corporate assets. Scott and Steve Hollenhead then proposed that their parents, Sam and Jeanette Hollenhead, would be willing to provide as collateral for new financing some property that they owned. APAC countered by requesting "a deed to the real estate, and we'll hold onto it as payment; and, if you guys are able to get the cash, we'll deed the property back to you." In return for the deed, APAC promised not to execute on corporate assets until September 30, 1999.
¶ 4. A settlement agreement and warranty deed, prepared by APAC counsel Dewitt T. Hicks, were sent to Scott Hollenhead. Scott traveled to Branson, Missouri to deliver the settlement agreement and warranty deed to his parents. Sam and Jeanette Hollenhead had the settlement agreement and warranty deed for approximately two days, then signed both. The warranty deed was recorded by APAC on July 22, 1999. The interpretation and accuracy of the description in the deed is the principal issue on this appeal. The dispute is whether the description actually encompasses any property in addition to the unsold lots in a subdivision, and if the description does, whether that is only because of mutual mistake or even fraud.
¶ 5. JHN and the Hollenheads argue that the deed only applies to the unsold lots. APAC's counsel Bixler later stated that it was his company's intention to take possession of all the property that Sam and Jeanette Hollenhead owned in Webster County. That was about forty acres. Bixler stated that he understood the forty acres to be partially subdivided into individual lots, to encompass a lake, and also to include a piece of property fronting on the road leading to the subdivision. Included in the forty acres was a 1.41 acre parcel upon which stood the personal residence of Sam and Jeanette Hollenhead.
¶ 6. Though APAC later extended the deadline for payment until December 1999, no payment was made. In a letter dated February 1, 2000, APAC's outside counsel, Dewitt T. Hicks, responded to a proposal from Buchanan Meek, counsel for the Hollenhead family. Hicks wrote that APAC would reconvey to Sam and Jeanette Hollenhead all unsold lots in the Spring Valley Estates Subdivision, including their personal residence, for $100,000. This offer was never accepted.
¶ 7. In a deed recorded on March 6, 2000, Sam and Jeanette Hollenhead conveyed by warranty deed the 1.41 acre parcel of property on which was located their personal residence to JHN, Inc. The price was $63,000. The property had appraised at one time as being worth $109,000. This amount retired the balance of $58,000 secured by a deed of trust and provided the Hollenheads with a $5,000 payment. A new loan was provided by BancorpSouth, which received a deed of trust.
¶ 8. On March 31, 2000, APAC filed a complaint against JHN, Inc. and Bancorp-South. APAC sought to have the deed and deed of trust canceled as a cloud upon APAC's title. It also sought damages for slander of title. Bancorp South answered by denying APAC's claims, noting that it had paid off a prior secured loan that had been held by Deposit Guaranty National Bank, and sought confirmation of its deed of trust. JHN answered that the deed from the Hollenheads to APAC was to contain only the thirty unsold lots in the Spring Valley Estates subdivision.
¶ 9. On June 7, 2000, JHN, Inc. filed a third-party complaint against Sam and *1217 Jeanette Hollenhead. JHN stated that the consideration paid was $63,400 plus the discharge of prior accounts due from the Hollenheads for appraisal and real estate services worth $21,734. JHN sought reimbursement for its expenses in defending the title action and, in the event APAC was awarded the property, it sought a judgment in the amount of $85,134. JHN then filed a counter-claim against APAC. JHN alleged that the warranty deed was obtained by APAC "upon representations that it [was] nothing more than a mortgage on the undeveloped lots within Spring Valley Estates Subdivision" and that the lots would be reconveyed to Sam and Jeanette Hollenhead upon repayment of $42,973.57. JHN requested that the deed to APAC be either canceled or reformed into a mortgage covering only the unsold lots in the subdivision.
¶ 10. Sam and Jeanette Hollenhead, acting pro se, filed an answer to both the third-party complaint and counter-claim against APAC. The Hollenheads alleged that the warranty deed was to be a deed of trust to secure the payment of invoices due APAC and that "in error, and without any consideration being given by APAC, our residence and at least one other residence whose property is not located within the Spring Valley Estate subdivision was conveyed to APAC." The Hollenheads claim the warranty deed was obtained by APAC due to fraud.
¶ 11. In January 2001, BancorpSouth was granted summary judgment which gave it a first lien of $57,705.56 on the disputed property. On March 21, 2001, the chancellor entered judgment on the remainder of the claims. Based on mutual mistake of the parties, the deed was reformed to exclude all property other than the thirty unsold subdivision lots. The court found no credible evidence that APAC committed fraud. The chancellor also stated that "the settlement agreement was obviously prepared by an attorney and it is inconceivable to this Court that any intent to go beyond the 30 unsold lots in the Spring Valley Estates subdivision would not have been set forth in this agreement and reference made to the Deposit Guaranty National bank deed of trust." The chancellor also found that the warranty deed was an equitable mortgage. The chancellor denied all other relief.
¶ 12. The appeals of the parties were deflected here. Miss.Code Ann. § 9-4-3 (Supp.2001).
DISCUSSION
1. Mutual Mistake
a. The Proper Evidentiary Standard
¶ 13. The chancellor found that the warranty deed from the Hollenheads to APAC should be reformed as a result of a mutual mistake. While JHN and the Hollenheads agree that the deed should have been reformed, both argue that the chancellor should have found the basis for reformation to be a unilateral mistake on the part of the Hollenheads coupled with fraud on the part of APAC. APAC argues that there was no mistake and that the deed did not require reformation. Although neither side is arguing that there was mutual mistake or even alleged mutual mistake for various reasons, this does not prevent the chancellor from applying the law to the facts as he finds them.
¶ 14. Among the questions that we face is the proper standard of proof sufficient for the chancellor to find mutual mistake. The chancellor found that in order to reform the warranty deed in question, that mutual mistake must be proved by clear and convincing evidence. He cited Abney v. Lewis, 213 Miss. 105, 115, 56 So.2d 48, 51 (1952). Abney has been overruled. Instead, a "petitioner must prove the mutual mistake occurred between the *1218 parties beyond a reasonable doubt." McCoy v. McCoy, 611 So.2d 957, 961 (Miss. 1992). Though highly unusual as a standard in a civil case, the Supreme Court pronouncement was made after due consideration of conflicting precedents. Id. This standard has also been applied in a more recent decision regarding reformation of a deed. Dunn v. Dunn, 786 So.2d 1045, 1049 (Miss.2001).
¶ 15. Neither party addresses this issue. APAC says that the evidence does not prove mutual mistake and relies on the clear and convincing standard. JHN argues that the chancellor should have found fraud, which only requires clear and convincing evidence. Cook v. Children's Med. Group, P.A., 756 So.2d 734, 744 (Miss. 1999).
¶ 16. Nonetheless, we find that the chancellor's analysis of the evidence sufficiently states that he found proof beyond a reasonable doubt. The chancellor held that it was "inconceivable" that the parties intended to convey anything more than the unsold lots. We find no useful distinction between belief "beyond a reasonable doubt" and belief that a contrary conclusion is "inconceivable." We now look to whether the evidence supports the finding of mutual mistake.
b. The Warranty Deed
¶ 17. What property was conveyed by the warranty deed was the issue at trial. The warranty deed contained two separate "intent" clauses. The warranty deed first described the forty-acre parcel that APAC claims. After that description, the deed stated that "Spring Valley Estates Subdivision lies in the forty acres as above described and should be included in said description." This was followed by the recording information for several previously sold lots that were not to be included in the conveyance. Following this list was the statement: "It is the intention of the Grantors herein to describe and there is hereby conveyed all real estate owned by them in Spring Valley Estates Subdivision, whether correctly described herein or not."
¶ 18. If the language employed within a deed is "clear, explicit, harmonious and free from ambiguity, the Court will look solely to the language used in the instrument itself." Knight v. Minter, 749 So.2d 128, 133 (Miss.1999). Examining the two quoted intent clauses above, we do not find clarity. The Hollenheads may have been conveying everything that they owned within the forty-acre parcel except for the previously sold lots, or could only have been conveying the property that they owned in the Spring Valley Estate Subdivision. The Hollenhead residence is not located within the subdivision but is located within the larger forty-acre parcel.
¶ 19. APAC argues that the deed "clearly and unambiguously" is not limited to the unsold lots in the subdivision. We agree that the initial intent clause would not likely override the specific description of the forty acre tract, but the later intent clause creates doubt. In looking at the entire deed, and trying to gather its purpose "from the language employed," we find no certain purpose. Gilich v. Mississippi State Highway Comm'n, 574 So.2d 8, 11 (Miss.1990).
¶ 20. In order to determine meaning, we should first "look solely to the language contained within the `four corners' of the instrument...." Knight, 749 So.2d at 133. Since that was unsuccessful, we then should utilize relevant canons of construction. Id. We find no applicable canon that retrieves meaning here. Finally, we are to examine extrinsic evidence if the intent is still unknown. Id. That is where we now turn.
*1219 ¶ 21. Executed along with the warranty deed was a document entitled "Settlement Agreement." Paragraph two of the agreement stated that APAC would "grant a moratorium on levying execution or otherwise attempting to satisfy the Default Judgment" in exchange for a warranty deed conveying to it "the real estate specified herein below." Paragraph three specifically states that the Hollenheads own thirty lots in the subdivision. It goes on to say that a warranty deed shall be delivered to APAC conveying the thirty lots, subject to a deed of trust held by First American National Bank. There is no mention made of the larger forty-acre parcel nor the deed of trust on the Hollenhead home held at that time by Deposit Guaranty National Bank.
¶ 22. After reading the deed in light of the settlement agreement, we find a definite intention of the parties. This evidence forms the basis for the chancellor's belief that it was "inconceivable" that anything but the unsold lots were to be conveyed.
¶ 23. Thus simply as a matter of interpreting the instrument we conclude that the deed conveyed only the unsold lots. No consideration of mutual mistake was necessary for that conclusion. Nonetheless, were the deed to be interpreted as conveying more than the unsold lots, and in light of the evidence just described, we agree that it supports a finding that beyond a reasonable doubt, the description was the result of a mutual mistake. Neither party at the time of execution, when reading the deed in light of the settlement agreement, was considering conveying more than the unsold lots.
¶ 24. The chancellor did not err in reforming the deed to make clear that it conveyed only the thirty unsold lots located within the Spring Valley Estates Subdivision.
c. Fraud
¶ 25. Having found the deed to have conveyed only the unsold lots, we must now address the cross-appeal argument that the somewhat confusing manner in which the deed was written and APAC's conduct after execution constituted fraud. That argument would support reformation, and also potentially damages. The chancellor found insufficient proof of fraud.
¶ 26. We have already detailed the relevant evidence. There was ambiguity in the deed. We do not find that rejection of the argument that the deed was intended to cover the entire forty acre tract is an acceptance of the argument that APAC's interpreting the deed in that way was fraud. We do not find error in the chancellor's conclusion that it was not clearly and convincingly shown that APAC was through fraud attempting to gain more than was the parties' original contemplation.
2. Equitable Mortgage
¶ 27. The chancellor found the warranty deed was "given to secure payment of the default judgment within the times agreed upon by the parties," and therefore, an equitable mortgage. A debtor-creditor relationship existed between APAC and Hollenhead Construction Services, and the warranty deed was an equitable mortgage meant to secure payment of the default judgment. The chancellor further found that because Hollenhead Construction had not satisfied the default judgment, that APAC was authorized to sell at fair market value as many of the thirty lots as needed to satisfy the judgment. After satisfaction of the default judgment, APAC was to convey any remaining lots to the Hollenheads.
¶ 28. The chancellor cited the following to support his conclusion that this was a mortgage:
*1220 (1) APAC agreed to grant a moratorium on levying execution or otherwise attempting to satisfy the default judgment
(2) APAC agreed not to sell or otherwise exercise any acts of ownership and possession of the real estate conveyed by the warranty deed
(3) Hollenhead [was to] make all reasonable efforts to procure a sale of all or any portion of the real estate conveyed at the current market value and apply all proceeds after the cost of sale toward the default judgment
(4) Acceptance of the deed by APAC was not in satisfaction of the default judgment
(5) If the default judgment was satisfied in full or at some agreed lesser amount, the conveyed real estate was to be reconveyed by APAC to Hollenhead Construction Services and Sam and Jeanette Hollenhead
¶ 29. APAC states in its brief that had it been paid in full that it "would have returned the original deed unrecorded." That overlooks the fact that the deed was recorded only one week after the agreement was signed.
¶ 30. A deed that is absolute in its actual terms "may be found valid and effectual as a mortgage, if it were intended by the parties `to operate as a security for the repayment of money.'" Harris v. Kemp, 451 So.2d 1362, 1364 (Miss.1984). That a deed was intended as a mortgage must be demonstrated by clear and convincing evidence. Harris, 451 So.2d at 1364. "[W]here, as here, the grantor retains possession of the property, parol evidence may be introduced to prove that the deed, absolute on its face, was intended as a mortgage." Id. at 1365, citing Miss.Code Ann. § 89-1-47 (1972). APAC asserts that it changed the locks on the personal residence and that the Hollenheads were not in possession, thus no parol evidence should have been permitted. We do not understand the factual basis for APAC's changing locks on this residence, but we have already held that the instrument affected only the unsold lots on the subdivision and not the Hollenhead residence. There is no evidence that the Hollenheads parted with possession of the thirty unsold lots.
¶ 31. The fact that this deed was only to secure payment is evident from the simultaneously executed settlement agreement. The grantors, the Hollenheads, were not indebted to APAC. Hollenhead Construction has the debt. APAC claims that the warranty deed was given only to secure a moratorium against execution. However, the settlement agreement stated that the Hollenheads would make every effort to sell the property in order to satisfy the judgment and then the remaining property would be reconveyed. The agreement also provided that if the judgment was not paid by a date certain that "all rights of possession and ownership shall fully and without restriction be vested in APAC to deal with the property ... as it deems appropriate."
¶ 32. At the time of the agreement the default judgment totaled $192,000 and the unsold lots were worth approximately $240,000. APAC's counsel Bixler stated at trial that once the debt was paid APAC would reconvey the property to the Hollenheads. This deed was intended, when read in conjunction with the settlement agreement, as a mortgage to secure payment of the default judgment.
¶ 33. Once such a finding is made, "there is an express or implied promise to do whatever is necessary to reinvest title in the grantor upon payment of the debt." Harris, 451 So.2d at 1366. The chancellor granted APAC the authority to sell so many of the thirty lots as was necessary to satisfy the judgment against Hollenhead Construction. The chancellor *1221 also ordered that any property remaining after the satisfaction of the judgment be reconveyed to the Hollenheads. That remedy is not challenged on appeal, just the underlying factual finding of a mortgage. We find no error.
¶ 34. THE JUDGMENT OF THE CHANCERY COURT OF WEBSTER COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED ONE-HALF TO THE APPELLANT, ONE FOURTH TO APPELLEE JHN, INC. AND ONE-FOURTH TO APPELLEES SAM AND JEANETTE HOLLENHEAD.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597606/ | 3 So.3d 20 (2008)
STATE of Louisiana
v.
Melvin LEMON.
No. 08-KA-619.
Court of Appeal of Louisiana, Fifth Circuit.
December 16, 2008.
*22 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Anne Wallis, Appellate Counsel, Vince Paciera, Trial Counsel, Assistant District Attorneys, Gretna, Louisiana, 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., SUSAN M. CHEHARDY, and GREG G. GUIDRY.
GREG G. GUIDRY, Judge.
Defendant, Melvin Lemon, appeals from his guilty plea conviction to possession of cocaine and his sentence as a fourth offender to 35 years at hard labor to be served without benefit of probation or suspension of sentence. For the reasons which follow, we affirm and remand.
On March 21, 2007, the Jefferson Parish District Attorney filed a bill of information charging the Defendant with possession of cocaine, a violation of La. R.S. 40:967 C. The Defendant pled not guilty at his arraignment.
On November 15, 2007, the trial court held a hearing on the Defendant's motions to suppress evidence and statement. On defense counsel's request, the court ordered that the motions remain open pending trial.[1]
*23 At the hearing Sergeant David Short of the Jefferson Parish Sheriffs Office testified that on the afternoon of March 8, 2007, he was working in a high crime area known for drug trafficking. He was standing on Ames Boulevard watching traffic and looking for "violators." At 4:12 p.m., Sergeant Short saw a car with a Louisiana license plate and a Texas state inspection sticker. The officer recognized this as a traffic violation, since a car registered in Louisiana is required to have a current Louisiana brake tag.
Sergeant Short testified that he and Deputy Al West got into their police vehicle and performed a traffic stop. The car the officers stopped had three occupants. Sergeant Short issued a traffic citation to the driver. The vehicle's t-top roof was open, and the officers could see inside the car. Sergeant Short testified that the Defendant, a back seat passenger, had a substance lying at his feet in plain view that appeared consistent with crack cocaine. The officers ordered all of the occupants to get out of the car, and they retrieved the suspicious substance. According to Sergeant Short, the Defendant blurted out, "That's mine. I'll take my lick."
Sergeant Short advised the Defendant of his Miranda[2] rights. The Defendant was transported to the Jefferson Parish Correctional Center. Sergeant Short again advised the Defendant of his rights, and reviewed a rights of arrestee form with him. The Defendant waived his rights and agreed to answer Sergeant Short's questions. The officer typed the Defendant's responses and showed them to him at the conclusion of the interview. The Defendant signed the statement. The written statement shows the Defendant admitted the crack cocaine in the car was his. He had purchased it earlier and had not had an opportunity to smoke it.
Following the hearing, on December 4, 2007, the Defendant withdrew his plea of not guilty and entered a guilty plea under North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). The court then sentenced the Defendant to five years at hard labor.
On December 6, 2007, the State filed a habitual offender bill of information charging the Defendant as a fourth felony offender. The Defendant was arraigned on the habitual offender bill, and he plead not guilty.
The trial court held a habitual offender hearing on April 14, 2008, and found the Defendant to be a fourth offender.[3] On April 28, 2008, the court vacated the Defendant's original sentence and imposed an enhanced sentence of 35 years at hard labor without benefit of probation or suspension of sentence. The Defendant made a timely oral motion for appeal. He also filed a written motion for appeal, which the trial court granted. On appeal, the Defendant assigns two errors.
ASSIGNMENT OF ERROR NUMBER ONE
He argues that the State failed to meet its burden of proof as to one of the predicate convictions alleged in the habitual offender bill of information. Specifically, he argues his 1994 guilty plea to aggravated *24 battery, in case # 370-971, was not proven to be knowingly and voluntarily entered.
The State responds that the Defendant did not challenge the validity of that guilty plea in the district court, and therefore did not preserve the issue for appeal. The State points out that at the hearing on the multiple bill, the Defendant only contested the proof relating to the April 23, 2001, guilty plea for unauthorized entry of an inhabited dwelling, in case # 00-4858.
Upon review, we find that the Defendant did not contest the validity of the 1994 guilty plea to aggravated battery that he refers to by name in brief on appeal. A defendant must make a contemporaneous oral objection or file a written response to a habitual offender bill in order to preserve for appeal the issue of sufficiency of proof of a prior conviction based on a guilty plea. State v. Richmond, 98-1015, p. 7 (La.App. 5 Cir. 3/10/99), 734 So.2d 33, 37. However, we find he did contest the validity of the 2001 plea in district court, and the transcript reference in his appellate brief is to this guilty plea proceeding. Therefore, we will address the validity of that plea since it was the only one preserved for review by timely objection and, arguably, briefed on appeal.
The Defendant testified at the hearing regarding his understanding of his 2001 guilty plea, stating that he declined to provide written agreement in the blanks next to a few of the questions on the waiver of rights form because he did not understand them. But when cross examined, he explained that what he didn't understand was that the guilty plea could be used to support a multiple offender charge.
To prove a defendant is a habitual offender, the State must initially prove the prior felony convictions, and that the defendant is the same person who was convicted of the prior felonies.[4]State v. Shelton, 621 So.2d 769, 779-80 (La.1993); State v. Thomas, 06-654, p. 7 (La.App. 5 Cir. 1/16/07), 951 So.2d 372, 378, writ denied, 07-0464 (La.11/21/07), 967 So.2d 1153. The latter can be established through the use of expert testimony that the defendant's fingerprints match those from the prior convictions. Thomas, 06-654 at 7, 951 So.2d at 378. When the State relies on a prior conviction that is based on a guilty plea to prove the defendant's habitual offender status and the defendant denies the habitual offender bill, the State's burden of proof is governed by State v. Shelton, 621 So.2d 769, 779-80 (La.1993).
Under Shelton, it is initially the State's burden to prove 1) the existence of the prior guilty pleas, and 2) that the defendant was represented by counsel when the pleas were taken. If the State satisfies that burden, the burden shifts to the defendant to produce affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. If the defendant makes such showing, the burden of proving the constitutionality of the plea shifts to the State. This burden is met if the State produces a "perfect" transcript of the guilty plea, i.e., one which reflects a colloquy in which the judge informed the defendant of, and the defendant waived, his right to trial by jury, his privilege against self-incrimination, and his right of confrontation. Id., 621 So.2d 779-780.
If the State introduces anything less than a "perfect" transcript, such as a guilty plea form, a minute entry, an "imperfect" transcript, or any combination *25 thereof, the judge must weigh the evidence submitted by each party to determine whether the State has met its burden of proving the prior guilty plea was "informed and voluntary, and made with an articulated waiver of the three Boykin rights." Shelton, 621 So.2d at 780.
In this case, the State alleged in the habitual offender bill of information that the Defendant had three prior felony convictions: 1) unauthorized entry of an inhabited dwelling (La. R.S. 14:62.3) in 2001 in case number 00-4858 in Jefferson Parish; 2) possession of cocaine (La. R.S. 40:967 C) in 1996 in case number 384-454 in Orleans Parish; and 3) aggravated battery (La. R.S. 14:34) in 1994 in case number 370-971 in Orleans Parish. Evidence of the existence of each guilty plea conviction and the fact that the Defendant was represented by counsel was introduced into evidence without objection.[5]
The State also met its burden of proving identity at the habitual offender hearing. The State introduced a card containing fingerprints taken from Defendant in court that day and a card containing fingerprints taken from Defendant at the time of his arrest for the instant offense. The State also offered the testimony of Deputy Aischa Prudhomme, a latent fingerprint analyst with the Jefferson Parish Sheriffs Office, to the effect that the fingerprints on these cards matched and they matched those introduced with the submitted proof of the three prior guilty plea convictions offered in support of the habitual offender bill of information.
Once the State met its initial burden under Shelton, the burden shifted to the Defendant to establish an infringement of his rights or a procedural irregularity in the taking of the challenged plea. The Defendant testified at the habitual offender regarding his guilty plea to unauthorized entry of an inhabited dwelling in 2001. The Defendant testified that the trial judge went over his rights with him, and he signed the waiver of rights form filed into evidence with the other proof of that conviction. But he testified that he did not understand all of the specified rights. Specifically, he stated that he did not understand that this conviction could be used to enhance a future felony sentence. Defense counsel asked the Defendant about the following questions from page two of the waiver of rights form:
2. Do you understand the nature of the charges against you and the possible penalties? _____
3. (Where applicable) Do you understand the enhanced penalties in the event of a second or subsequent conviction of the same crime? ____
4. (a) Do you understand that the plea of guilty is your decision and that you have the right to plead not guilty or to maintain your plea of not guilty? ____
(b) Do you understand that no one can force you to plead guilty? ____
(c) Has anyone used any force, intimidation, coercion or promise of reward against either you or any member of your family for the purpose of making or forcing you to plead guilty? ____
Although each of the questions is followed by a blank, there is only one handwritten response: a "yes" to question two. Defendant testified that he did not respond to the other questions in that section *26 because he did not understand them.[6] There is a blank for the Defendant's initials following that set of questions, but the Defendant did not enter his initials in the blank.
Defense counsel argued the guilty plea form for the 2001 conviction was "faulty" on its face, since the Defendant did not complete the section regarding whether he was coerced to plead guilty.
The State responded, noting that on cross examination the Defendant clarified that what he did not understand was the fact that the conviction could possibly be used to enhance future felony sentences. The prosecutor argued that this claim by the Defendant was negated by the fact that he had been multiple billed prior to his 2001 guilty plea, as well as following that offense. Due to his familiarity with the criminal justice system, the State argued that the Defendant's testimony that he did not understand that the 2001 conviction could be used to enhance a future felony sentence was self-serving and untrue. The prosecutor argued that the State had proven Defendant to be a fourth felony offender.
The trial court found that the State met its burden of proof that the Defendant had been sufficiently "Boykinized," and he had properly waived his rights before entering the three predicate guilty pleas. The judge noted that the evidence established the Defendant's familiarity with multiple offender proceedings before he entered the 2001 plea, and thus it discredited the Defendant's contention that he did not know the plea could be used in a multiple offender adjudication.
In reviewing the matter, we find that the first page of the guilty plea form lists the three Boykin rights, with the Defendant's acknowledgement that he understood those rights by writing "yes" in the blank that followed them. The form is signed by the Defendant, his attorney, and the trial judge. The Defendant's signature appears at the end of the guilty plea form after the following passage:
BY THE DEFENDANT:
I, as the defendant in this case, acknowledge: (1) that the foregoing has been read to me; (2) that my attorney and the trial judge have explained the nature of the crime to which I am pleading guilty; (3) that the trial judge has explained to me all of my rights and what rights I am waiving or giving up, as listed above, and that I have been given every opportunity by the trial judge to ask questions in open court about anything I do not understand and about all the consequences regarding my plea of guilty. I am completely satisfied with the explanation of my attorney and the trial judge.
I FURTHER ACKNOWLEDGE THAT MY ACT OF PLEADING GUILTY IS A KNOWING, INTELLIGENT, FREE AND VOLUNTARY ACT ON MY PART. I know that no one can force me to plead guilty. I know that by pleading guilty I admit I committed the said crime. I know this plea of guilty is more than a confession. It is also a conviction. Nothing further remains except for the trial judge to give judgment and give me my punishment. I waive all delays for sentencing and acknowledge I am ready for sentencing. (Emphasis in the original.)
The minute entry concerning this plea states that the Defendant was informed by *27 the trial court of his right to a trial by judge or jury, his right to confront his accusers and his right not to incriminate himself and that the Defendant waived those rights. The trial court was not required to advise the Defendant of the penalties for subsequent offenses prior to accepting his guilty plea. State v. Guzman, 99-1753 (La.5/16/00), 769 So.2d 1158. Where the omission does not affect substantial rights of the accused, it does not rise to the level of reversible error. Id. Moreover, the Defendant's testimony, that he did not know the conviction could be used to enhance the penalty for a subsequent offense, as found by the trial judge, lacks credibility. His criminal record, with two habitual offender enhancements, clearly indicates his familiarity with the proceedings and contradicts his testimony. Therefore, we find that despite the Defendant's testimony that he did not understand that the conviction could be used to support a multiple offender charge, the State met its burden of proving the Defendant's 2001 guilty plea was made with a knowing waiver of the three Boykin rights and was informed and voluntary. There was no error in the trial court finding that the State adequately proved that the Defendant was a fourth felony offender.
ASSIGNMENT OF ERROR NUMBER TWO
By this assignment of error the Defendant argues that his 35-year habitual offender sentence is constitutionally excessive because it is disproportionate to the underlying offense of cocaine possession. The State responds that the sentence is well within the statutory limits and does not represent abuse of the trial court's sentencing discretion.
Defendant objected to the sentence below, but did not state specific grounds for his objection. The Defendant also failed to file a motion to reconsider sentence in accordance with La.C.Cr.P. art. 881.1. Thus, he is entitled only to a review for constitutional excessiveness. State v. Warmack, 07-311, p. 7 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 108.
The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. A sentence is considered excessive, even when it is within the applicable statutory range, if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. State v. Wickem, 99-1261, p. 10 (La.App. 5 Cir. 4/12/00), 759 So.2d 961, 968, writ denied, 00-1371 (La.2/16/01), 785 So.2d 839.
In reviewing a sentence for excessiveness, the appellate court must consider the punishment and the crime in light of the harm to society and gauge whether the penalty is so disproportionate as to shock our sense of justice. The trial judge is afforded wide discretion in determining sentence, and the reviewing court will not set aside a sentence for excessiveness absent a clear abuse of that discretion. State v. Brown, 04-230, p. 4 (La. App. 5 Cir. 7/27/04), 880 So.2d 899, 902. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. Id. In reviewing a sentence for abuse of discretion, three factors are generally considered: 1) the nature of the crime, 2) the nature and background of the offender, and 3) the sentence imposed for similar crimes by the same court and other courts. State v. Pearson, 07-332, pp. 15-16 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656.
Defendant's sentencing range as a fourth offender was 20 years to life imprisonment. La.R.S. 15:529.1 A(1)(c)(i). The trial court did not give reasons for sentencing, *28 but the judge did comment, "I don't think that [defendant's] prior offenses are so heinous that he deserves the maximum sentence."
The record shows the Defendant has a history of cocaine offenses and has at least five prior convictions. One of the predicate convictions alleged in the habitual offender bill was for possession of cocaine in 1996. There was also evidence that Defendant had an earlier conviction for possession of cocaine, in district court case number 89-5484.[7] Defendant also had a history of violent offenses. One of the predicate convictions in his habitual offender bill was for aggravated battery.
Defendant's sentence is near the lower end of the sentencing range for a fourth offender and is not outside of the normal range of sentences imposed under similar facts and circumstances. In State v. Williams, 02-1016 (La.App. 5 Cir. 2/25/03), 841 So.2d 936, writ denied, 03-2205 (La.8/20/04), 882 So.2d 571, this Court upheld a 30-year habitual offender sentence on a fourth offender whose underlying conviction was for possession of cocaine. In that case the defendant also had prior felony drug convictions and a conviction for a violent felony. Id., 02-1016 at 16, 841 So.2d at 936.
Based on the foregoing, we find the Defendant's sentence to 35 years at hard labor, under the circumstances presented, is not grossly disproportionate to the offense and does not impose needless and purposeless pain and suffering. We find no merit in the Defendant's contention that the sentence is constitutionally excessive.
ERROR PATENT DISCUSSION
The Defendant requests an error patent review. This Court routinely reviews the record for errors patent in accordance with La.C.Cr.P. art. 920 regardless of whether a defendant makes such a request. State v. Oliveaux, 312 So.2d 337 (La.1975); State v. Weiland, 556 So.2d 175 (La.App. 5 Cir.1990).
There is a discrepancy between the habitual offender commitment and the transcript. The commitment reflects that defendant "pleaded GUILTY" to the habitual offender bill, but in fact a hearing was held wherein the Defendant took issue with the State's proof of his prior convictions. Therefore, the case must be remanded to the trial court to amend the habitual offender commitment to conform to the transcript.
Accordingly, for the foregoing reasons we affirm the Defendant's conviction for possession of cocaine and his sentence as a fourth felony offender to 35 years imprisonment at hard labor and remand the case to district court for amendment of the habitual offender commitment to conform to the transcript.
AFFIRMED AND REMANDED.
NOTES
[1] The record does not show that the trial court ever ruled on Defendant's motions. Defendant waived all pending motions when he pled guilty without raising the issue that the motions had not yet been ruled on. See State v. Fletcher, 02-707 (La.App. 5 Cir. 12/30/02), 836 So.2d 557, 559, writ denied, 03-409 (La. 10/10/03), 855 So.2d 334.
[2] Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[3] The minute entry reflects that the trial court found the Defendant to be a fourth felony offender. Furthermore, although the trial judge does not say the words "fourth" offender, he does state that the three prior offenses as well as the instant offense have been adequately proven, clearly implying that he is finding the Defendant to be a fourth offender. Additionally, at sentencing, reference was made to the Defendant as a "quad offender."
[4] The State must also prove that the prior convictions fall within the ten-year cleansing period prescribed by La. R.S. 15:529.1 C. State v. Guillard, 04-899, p. 13 (La.App. 5 Cir. 4/26/05), 902 So.2d 1061, 1072, writ denied, 05-1381 (La.1/13/06), 920 So.2d 233.
[5] Mention was made of some illegible writing on the bottom of the guilty plea form for the 1996 possession of cocaine conviction. No issues regarding that conviction have been raised in this appeal.
[6] In his brief, defense counsel incorrectly refers to this testimony as pertaining to defendant's 1994 guilty plea to aggravated battery.
[7] See State v. Anderson, 30,060, p. 4 (La.App. 2 Cir. 10/29/97), 702 So.2d 40, 42, in which the Second Circuit held that past records of drug offenses weigh heavily in the decision to uphold sentences imposed in contraband possession cases. Anderson did not involve a habitual offender sentence. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/839245/ | 751 N.W.2d 443 (2008)
Amyruth L. COOPER, by her Next Friend, Sharon L. Strozewski, and Loralee A. COOPER, by her Next Friend, Sharon L. Strozewski, Plaintiffs-Appellants,
v.
AUTO CLUB INSURANCE ASSOCIATION, Defendant-Appellee.
Docket No. 132792. Calendar No. 2.
Supreme Court of Michigan.
Argued January 8, 2008.
Decided June 25, 2008.
*444 Logeman, Iafrate & Pollard, P.C. (by Robert E. Logeman and James A. Iafrate), Ann Arbor, for the plaintiffs.
Schoolmaster, Hom, Killeen, Siefer, Arene & Hoehn (by Gregory Vantongeren) and Zanetti, John & Brown, P.C. (by R. Michael John) (Gross, Nemeth & Silverman, P.L.C., by James G. Gross, of counsel), Detroit, Southfield, Detroit, for the defendant.
Thomas A. Biscup, Shelby Township, for amicus curiae the Michigan Association for Justice.
*445 MARKMAN, J.
At issue is whether plaintiffs' common-law cause of action for fraud is subject to the one-year-back rule of MCL 500.3145(1). Because the one-year-back rule only applies to actions brought under the no-fault act, and because a fraud action is not a no-fault action, i.e., an "action for recovery of personal protection insurance benefits payable under [the no-fault act] for accidental bodily injury," MCL 500.3145(1), but instead is an independent and distinct action for recovery of damages payable under the common law for losses incurred as a result of the insurer's fraudulent conduct, we hold that a common-law cause of action for fraud is not subject to the one-year-back rule. Therefore, we reverse in part the judgment of the Court of Appeals and remand the case to the trial court for further proceedings consistent with this decision.
I. FACTS AND PROCEDURAL HISTORY
In January 1987, plaintiffs Amyruth and Loralee Cooper sustained severe brain injuries in an automobile accident that occurred while they were passengers in a car driven by their mother, Sharon Strozewski. From the time they were discharged from the hospital in October 1987, both sisters have required 24-hour attendant care. By the fall of 1989, Loralee did not need as much nursing care, but still needed attention beyond what a babysitter could provide. Amyruth has required continuous skilled nursing care, which has been provided through an agency paid by defendant, plaintiffs' automobile insurer.
At the time of the accident, Strozewski was working at GTE, earning approximately $50 a day. In the fall of 1989, defendant's claims representative, Jim Hankamp, suggested to Strozewski that she quit her job and stay at home to care for Loralee full-time. Defendant offered to pay Strozewski $50 a day, and she accepted by signing an agreement. In September 1991, the parties agreed to increase the payments to Strozewski to $75 a day. In October 1998, the rate was effectively increased to $6.50 an hour and, after that, it progressively increased up to $10 an hour by October 2000. According to defendant, as of December 26, 2003, defendant had paid more than $5.6 million in personal protection insurance (PIP) benefits under the no-fault act for the girls' care.
Plaintiffs filed this lawsuit in 2003, alleging that defendant had failed to pay all the PIP benefits that were due under the no-fault act because it underpaid Strozewski for the attendant care she had provided to her daughters at home over the years. Defendant filed a motion for partial summary disposition arguing, among other things, that because the amended Revised Judicature Act (RJA), MCL 600.5851(1),[1] states that the minority/insanity tolling provision applies only to actions brought under this act, the saving provision does not apply to no-fault actions to toll the one-year-back rule of MCL 500.3145(1). The trial court denied the motion, and the Court of Appeals denied defendant's application for leave to file an interlocutory appeal. Unpublished order of the Court of Appeals, entered July 1, 2004 (Docket No. *446 254659). Two weeks later, the Court of Appeals issued its opinion in Cameron v. Auto Club Ins. Ass'n, 263 Mich.App. 95, 687 N.W.2d 354 (2004), which held that the minority/insanity provision of MCL 600.5851(1) applies only to actions filed under the RJA and, therefore, it does not toll an action brought under the no-fault act. Defendant filed an application for leave to appeal in this Court, which was denied, 471 Mich. 915, 688 N.W.2d 509 (2004), as was defendant's motion for reconsideration. 471 Mich. 956, 690 N.W.2d 102 (2004).
In August 2004, following the Court of Appeals decision in Cameron, plaintiffs amended their complaint to assert a new cause of action for fraud. Plaintiffs alleged that defendant had fraudulently induced Strozewski to accept an unreasonably low compensation rate for her in-home attendant care services. Specifically, plaintiffs alleged that defendant had committed fraud by telling Strozewski: (1) that if she did not quit her job and accept $50 a day for providing 24-hour attendant care for Loralee, she would be personally responsible for paying for Loralee's nursing care; (2) that she had a parental obligation to provide attendant care for her children, which reduced defendant's legal obligation to pay attendant care benefits, and that if she did not agree to take care of Loralee for $50 a day, Loralee would have to be institutionalized; (3) that the attendant-care rate was not negotiable and that a higher rate was not available even though, in reality, defendant was paying other insureds as much as $7 an hour for providing similar attendant care; (4) that she was required to sign a contract before she could recover continuing no-fault benefits; (5) that case-management expenses were paid at the same rate as attendant-care benefits; and (6) that attendant care could not be paid to family members at the market rate or agency rate, i.e., the rate normally paid by the insurance agency to other caregivers. Plaintiffs allege that, as a result of defendant's fraud, they sustained the following damages: (1) inadequate payments for attendant-care services; (2) loss of payments for case-management expenses, i.e., expenses incurred for the services rendered by a case manager; (3) loss of payments for room and board expenses; and (4) inadequate payments of no-fault benefits.
While the denial of defendant's first motion for partial summary disposition was still on appeal, defendant filed a second motion for partial summary disposition, arguing that Strozewski could not recover in-home attendant-care benefits for services rendered before the filing of the complaint. The trial court denied the motion, and defendant did not file an interlocutory appeal.
Several months later, defendant filed a third motion for partial summary disposition, arguing that, under MCL 500.3145(1), plaintiffs could not recover benefits for any services that were rendered more than one year before the filing of the original complaint. The trial court denied the motion. Defendant filed an interlocutory application for leave to appeal, which was denied by the Court of Appeals. Unpublished order of the Court of Appeals, entered January 12, 2005 (Docket No. 259729). Defendant then filed a second application for leave to appeal in this Court, which was denied. 472 Mich. 858, 691 N.W.2d 457 (2005).
After this Court denied leave to appeal, the parties stipulated the entry of a judgment that resolved their differences over the amounts of damages that plaintiffs would be able to recover over the various periods at issue. This judgment preserved defendant's right to appeal the trial court's adverse decisions with regard to issues that were raised by either party in defendant's *447 three motions for partial summary disposition.
Defendant then filed a claim of appeal. The Court of Appeals affirmed in part, reversed in part, and remanded for entry of an order of partial summary disposition in favor of defendant. Unpublished opinion per curiam of the Court of Appeals, issued November 21, 2006 (Docket No. 261736). The Court of Appeals held that this Court's decision in Cameron v. Auto Club Ins. Ass'n, 476 Mich. 55, 718 N.W.2d 784 (2006), which affirmed the Court of Appeals decision in that case, was dispositive of defendant's claim that plaintiffs may not recover PIP benefits relating to any losses incurred more than one year before plaintiffs filed their original complaint. Moreover, it held that plaintiffs' fraud claim was subject to the one-year-back rule of MCL 500.3145(1) because the claim was nothing more than a no-fault claim couched in fraud terms. We granted plaintiffs' application for leave to appeal. 478 Mich. 861, 731 N.W.2d 406 (2007).
II. STANDARD OF REVIEW
Issues of statutory interpretation and other questions of law are reviewed de novo. Devillers v. Auto Club Ins. Ass'n, 473 Mich. 562, 566-567, 702 N.W.2d 539 (2005). The grant or denial of a motion for summary disposition is also reviewed de novo. McClements v. Ford Motor Co., 473 Mich. 373, 380, 702 N.W.2d 166 (2005).
III. ANALYSIS
A. FRAUD ACTIONS AND ONE-YEAR-BACK RULE
The Michigan no-fault act, MCL 500.3145(1), provides, in relevant part:
An action for recovery of personal protection insurance benefits payable under this chapter for accidental bodily injury may not be commenced later than 1 year after the date of the accident causing the injury unless written notice of injury as provided herein has been given to the insurer within 1 year after the accident or unless the insurer has previously made a payment of personal protection insurance benefits for the injury. If the notice has been given or a payment has been made, the action may be commenced at any time within 1 year after the most recent allowable expense, work loss or survivor's loss has been incurred. However, the claimant may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced. [Emphasis added.]
The one-year-back rule of this provision limits recovery of PIP benefits to those incurred within one year before the date on which the no-fault action was commenced. PIP benefits include "all reasonable charges incurred for reasonably necessary products, services and accommodations for an injured person's care, recovery, or rehabilitation." MCL 500.3107(l)(a).
Plaintiffs argue that by alleging in their amended complaint that defendant fraudulently induced Strozewski to accept an unreasonably low compensation rate for her in-home attendant-care services, plaintiffs brought a common-law fraud claim that is distinct from a no-fault claim for benefits, and that such claim therefore is not subject to the one-year-back rule of MCL 500.3145(1). A fraud action is not subject to the one-year-back rule of MCL 500.3145(1) because the one-year-back rule applies only to actions brought under the no-fault act, and a fraud action is a distinct and independent action brought under the common law. A fraud action is not an "action for recovery of [PIP] benefits payable under [the no-fault act] for accidental bodily injury." Rather, in the context of an insurance contract, a fraud action is an action for recovery of damages payable under the common law for losses incurred *448 as a result of the insurer's fraudulent conduct. There is a distinction between claiming that an insurer has refused to pay no-fault benefits to its insureds and claiming that the insurer has defrauded its insureds. A fraud action is conceptually distinct from a no-fault action because: (1) a fraud action requires an insured to prove several elements that are different from those required in a no-fault action; (2) a fraud action accrues at a different time than a no-fault action; and (3) a fraud action permits an insured to recover a wide range of damages that are not available in a no-fault action.
To assert a no-fault claim, an insured must demonstrate that the insured is entitled to benefits "for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle" without regard to fault, and that the insurer is obligated under an insurance contract to pay those benefits, but failed to do so timely. MCL 500.3105.[2] To assert an actionable fraud claim, on the other hand, an insured must demonstrate:
"(1) That [the insurer] made a material representation; (2) that it was false; (3) that when [the insurer] made it [the insurer] knew that it was false, or made it recklessly, without any knowledge of its truth and as a positive assertion; (4) that [the insurer] made it with the intention that it should be acted upon by [the] plaintiff; (5) that [the] plaintiff acted in reliance upon it; and (6) that [the plaintiff] thereby suffered injury. Each of these facts must be proved with a reasonable degree of certainty, and all of them must be found to exist; the absence of any one of them is fatal to a recovery." [Hi-Way Motor Co. v. Int'l Harvester Co., 398 Mich. 330, 336, 247 N.W.2d 813 (1976), quoting Candler v. Heigho, 208 Mich. 115, 121, 175 N.W. 141(1919).]
A fraud claim is clearly distinct from a no-fault claim. First, a fraud claim requires proof of additional elements, such as deceit, misrepresentation, or concealment of material facts, and the substance of such claim is the insurer's wrongful conduct. Unlike a no-fault claim, a fraud claim does not arise from an insurer's mere omission to perform a contractual or statutory obligation, such as its failure to pay all the PIP benefits to which its insureds are entitled. Rather, it arises from the insurer's breach of its separate and independent duty not to deceive the insureds, which duty is imposed by law as a function of the relationship of the parties.[3] Second, unlike an action for no-fault benefits, which arises when the insurer fails to pay benefits, an action for fraud arises *449 when the fraud is perpetrated. Hearn v. Rickenbacker, 428 Mich. 32, 39, 400 N.W.2d 90 (1987). Finally, under a no-fault cause of action, the insureds can only recover no-fault benefits, whereas under a fraud cause of action, the insureds may recover damages for any loss sustained as a result of the fraudulent conduct,[4] which may include the equivalent of no-fault benefits, reasonable attorney fees, damages for emotional distress, and even exemplary damages. See Phillips v. Butterball Farms Co., Inc. (After Second Remand), 448 Mich. 239, 250-251, 531 N.W.2d 144 (1995); Veselenak v. Smith, 414 Mich. 567, 574, 327 N.W.2d 261 (1982); Phinney v. Perlmutter, 222 Mich.App. 513, 527, 564 N.W.2d 532 (1997); Clemens v. Lesnek, 200 Mich.App. 456, 463-464, 505 N.W.2d 283 (1993).
Therefore, "[a]lthough mere allegations of failure to discharge obligations under [an] insurance contract would not be actionable in tort, where, as here, the breach of separate and independent duties are alleged, [the insureds] should be allowed an opportunity to prove [their] causes of action." Hearn, 428 Mich. at 40, 400 N.W.2d 90 (citation omitted); see also Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 603-604, 374 N.W.2d 905 (1985) (tort actions survive in a contractual setting as long as the tort action is based on a breach of duty that is distinct from the contract); Kewin v. Massachusetts Mut. Life Ins. Co., 409 Mich. 401, 422, 295 N.W.2d 50 (1980) (tort actions may survive when an insurer breaches a duty that existed "independent of and apart from the contractual undertaking"). "[T]ort liability abolished by the no-fault act is only such liability as arises out of the defendant's ownership, maintenance or use of a motor vehicle, not liability which arises out of other conduct. . . ." Citizens Ins. Co. of America v. Tuttle, 411 Mich. 536, 542, 309 N.W.2d 174 (1981); see also Shavers v. Attorney General, 402 Mich. 554, 623, 267 N.W.2d 72 (1978) (the no-fault act only "partially abolish[ed] the common-law remedy in tort for persons injured by negligent motor vehicle tortfeasors. . . ." [emphasis added]); Bak v. Citizens Ins. Co. of America, 199 Mich.App. 730, 737-738, 503 N.W.2d 94 (1993) ("The enactment of the no-fault act did not extinguish common-law doctrines predating that legislation.").
That common-law fraud claims survive even where a self-contained system, such as the no-fault system, exists is further suggested by this Court's decisions in the context of the dramshop act. The dramshop act, MCL 436.1801 et seq., states that it provides "the exclusive remedy for money damages against a licensee arising out of the selling, giving, or furnishing of alcoholic liquor." MCL 436.1801(10). In Manuel v. Weitzman, 386 Mich. 157, 164-165, 191 N.W.2d 474 (1971), overruled in part on other grounds by Brewer v. Payless Stations, Inc., 412 Mich. 673, 316 N.W.2d 702 (1982), this Court held that the dramshop act does not abrogate actions arising out of other unlawful conduct, and that tavern owners remain liable for injuries arising out of breach of other common-law duties.[5] Similarly, the no-fault *450 act, which provides the remedy for injuries arising out of "the ownership, maintenance or use of a motor vehicle,"[6] MCL 500.3105(1), does not abrogate actions arising out of the breach of other common-law duties. Nothing in the no-fault act or other relevant law suggests that insurers are exempt from liability for breaching other common-law duties by, for example, misrepresenting material facts and deceiving their insureds. The fact that the dispute would not have arisen in the absence of the no-fault insurance contract does not mean that the action brought by the insureds is a no-fault action.
Defendant argues, and the Court of Appeals appears to assert, that where the damages sought by the insureds are defined in terms of additional PIP benefits, the insureds' cause of action must necessarily be considered a "no-fault action couched in fraud terms." Cooper v. Auto Club Ins. Ass'n, unpublished opinion per curiam of the Court of Appeals, 2006 WL 3373078, issued November 21, 2006 (Docket No. 261736), at 2. We respectfully disagree. Although the nature of the damages sought may constitute a useful indicator of the precise nature of the claim, this factor alone cannot be viewed as dispositive.
The fact that a lawsuit seeks to recover a loss that was covered by an insurance policy, alone, should not dictate the nature of a plaintiff's claims . . . Although the contract of insurance may be one source of the insurer's obligation to pay the loss, the insurer may also be held liable for tortious conduct that is wholly separable from its purely contractual duties. [Hearn, 428 Mich. at 40-41, 400 N.W.2d 90.]
Where fraudulent conduct results in the loss, or reduced payment, of PIP benefits, plaintiffs are entitled to seek damages for their entire loss, including the equivalent of the no-fault benefits. See Phinney, 222 Mich.App. at 532, 564 N.W.2d 532. It should not be seen as unusual that damages for fraud in a statutory context would be more than randomly related to lost statutory benefits. Simply because the insureds choose to measure their loss from the fraudulent conduct, in whole or in part, on the basis of lost PIP benefits does not transform their claim into a no-fault claim.
Therefore, where an insured's claim arises not out of the insurer's mere failure to pay no-fault benefits, but out of the insurer's fraudulent misrepresentations, which might have ultimately led to payment of reduced no-fault benefits to the insureds, the courts are faced with a fraud claim, as opposed to a no-fault claim. Because fraud claims are independent of and distinct from no-fault claims, the one-year-back rule of the no-fault act simply does not apply.
Consequently, where the insureds state a fraud cause of action, this Court need not resort to its equitable power to prevent the one-year-back rule's application. In Devillers, 473 Mich. at 590-591, 702 N.W.2d 539, this Court stated that, in the context of a no-fault claim, this Court may exercise its equitable power to avoid the application of the one-year-back rule if there are allegations of fraud, mutual mistake, or other unusual circumstances.[7]*451 Because Devillers "concerns those statutory claims brought pursuant to the no-fault act," i.e., no-fault actions, Devillers is not pertinent in cases involving independent fraud actions. West v. Farm Bureau Gen. Ins. Co. of Michigan (On Remand), 272 Mich.App. 58, 65, 723 N.W.2d 589 (2006). Thus, where the insureds state a common-law fraud claim, wholly separate from a no-fault claim, this Court need not consider an equitable exception to the application of the one-year-back rule because the no-fault rules simply do not apply.[8]
B. CAUTIONARY NOTES
While insureds are entitled to pursue common-law fraud claims against insurers and their remedies are not limited by the one-year-back rule of the no-fault act, we are not oblivious to the fact that, in the initial stages of litigation, some insureds may attempt to circumvent the application of the one-year-back rule to defeat insurers' motions for summary disposition. In order to limit such practices, to prevent wasteful or frivolous litigation, and to maintain the integrity of both the no-fault law and the common-law fraud cause of action, trial courts should exercise special care in assessing these types of fraud claims, and we offer the following guidance.
Because fraud must be pleaded with particularity, MCR 2.112(B)(1), and "is not to be lightly presumed, but must be clearly proved," Palmer v. Palmer, 194 Mich. 79, 81, 160 N.W. 404 (1916), "by clear, satisfactory and convincing" evidence, Youngs v. Tuttle Hill Corp., 373 Mich. 145, 147, 128 N.W.2d 472 (1964), trial courts should ensure that these standards are clearly satisfied with regard to all of the elements of a fraud claim. As stated above, the elements of fraud in the insurance context are: (1) that the insurer made a material representation; (2) that it was false; (3) that when the statement was made, the insurer knew that it was false, or the insurer made it recklessly without any knowledge of its truth and as a positive assertion; (4) that the insurer made the statement with the intention that it would be acted upon by the insureds; (5) that the insureds acted in reliance upon the statement; and (6) that the insureds consequently suffered injury. See Hi-Way Motor Co., 398 Mich. at 336, 247 N.W.2d 813.
In particular, courts should carefully consider in this context whether insureds can satisfy the reliance factor. Insureds must "show that any reliance on [the insurer's] representations was reasonable." Foreman v. Foreman, 266 Mich. App. 132, 141-142, 701 N.W.2d 167 (2005). Because fraud cannot be "perpetrated upon one who has full knowledge to the contrary of a representation," Montgomery Ward & Co. v. Williams, 330 Mich. 275, 284, 47 N.W.2d 607 (1951), insureds' claims that they have reasonably relied on misrepresentations that clearly contradict the terms of their insurance policies must fail. One is presumed to have read the terms of his or her insurance policy, see Van Buren v. St. Joseph Co. Village Fire Ins. Co., 28 Mich. 398, 408 (1874); therefore, when the insurer has made a statement that clearly conflicts with the terms of the insurance policy, an insured cannot argue that he or she reasonably relied on that statement without questioning it in *452 light of the provisions of the policy. See also McIntyre v. Lyon, 325 Mich. 167, 174, 37 N.W.2d 903 (1949); Phillips v. Smeekens, 50 Mich.App. 693, 697, 213 N.W.2d 862 (1973). In addition, insureds will ordinarily be unable to establish the reliance element with regard to misrepresentations made during the claims handling and negotiation process, because during these processes the parties are in an obvious adversarial position and generally deal with each other at arm's length. See Mayhew v. Phoenix Ins. Co., 23 Mich. 105 (1871) (Where the insured has the same knowledge or means of knowledge as the insurer, the insurer cannot be regarded as occupying any fiduciary relationship that would entitle the insured to rely on the insurer's representations, and a settlement hastily made with the insurer under such circumstances will not be set aside for fraud. Insureds are bound to inform themselves of their rights before acting, and, if they fail to do so, they themselves are responsible for the loss.); Nieves v. Bell Industries, Inc., 204 Mich.App. 459, 464, 517 N.W.2d 235 (1994) ("There can be no fraud when a person has the means to determine that a representation is not true."). However, when the process involves information and facts that are exclusively or primarily within the insurers' "perceived `expertise' in insurance matters, or facts obtained by the insurer[s] in the course of [their] investigation, and unknown" to the insureds, the insureds can more reasonably argue that they relied on the insurers' misrepresentations. 14 Couch on Insurance 3d § 208:19, p. 208-26; see also Crook v. Ford, 249 Mich. 500, 504-505, 229 N.W. 587 (1930); French v. Ryan, 104 Mich. 625, 630, 62 N.W. 1016 (1895); Tabor v. Michigan Mut. Life Ins. Co., 44 Mich. 324, 331, 6 N.W. 830 (1880).[9]
The courts should also carefully examine whether the insureds have established both that the statements are statements of past or existing fact, rather than future promises or good-faith opinions, Hi-Way Motor Co., 398 Mich. at 337, 247 N.W.2d 813; Danto v. Charles C. Robbins, Inc., 250 Mich. 419, 425, 230 N.W. 188 (1930); Foreman, 266 Mich.App. at 143, 701 N.W.2d 167, and that they are objectively false or misleading, Hord v. Environmental Research Institute of Michigan, 463 Mich. 399, 411, 617 N.W.2d 543 (2000). Further, the insureds must demonstrate that the misrepresentations were made with the intent to defraud, Foreman, 266 Mich.App. at 143, 701 N.W.2d 167, and that the insureds were injured as a consequence. Hi-Way Motor Co., 398 Mich. at 336, 247 N.W.2d 813. The courts must distinguish between misrepresentations of fact, i.e., false statements of past or existing facts, and mere negotiation of benefits, i.e., the mutual discussion and bargaining preceding an agreement to pay PIP benefits.
Finally, as with any other action, if the courts conclude that the fraud claims were frivolous or interposed without an adequate basis or for improper purposes, appropriate *453 sanctions should be considered. See MCR 2.114.
III. CONCLUSION
Because under MCL 500.3145(1) the one-year-back rule applies solely to no-fault actions, and because a fraud action is not a no-fault action, but, rather, constitutes an independent and distinct action for recovery of damages under the common law for losses incurred as a result of the insurer's fraudulent conduct, we hold that a common-law action for fraud is not subject to the one-year-back rule. Therefore, we reverse in part the judgment of the Court of Appeals and remand this case to the trial court for further proceedings consistent with this opinion.
CLIFFORD W. TAYLOR, MAURA D. CORRIGAN and ROBERT P. YOUNG, JR., concur.
MICHAEL F. CAVANAGH, J. I concur in the result only.
WEAVER, J. (concurring).
I concur only in the result reached by the majority opinion. Specifically, because the one-year-back rule applies only to actions brought under the no-fault act, and because a fraud action is not a no-fault action"action for recovery of personal protection insurance benefits payable under [the no-fault act] for accidental bodily injury," MCL 500.3145(1)but, instead, is an independent action for recovery of damages payable under the common law for losses incurred as a result of the insurer's fraudulent conduct, I agree that the common-law cause of action for fraud is not subject to the one-year-back rule.
Therefore, I concur in the majority's decision to reverse in part the judgment of the Court of Appeals and to remand this matter to the trial court for further proceedings consistent with that decision.
MARILYN J. KELLY, J., concurs.
NOTES
[1] MCL 600.5851(1) provides:
Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852.
[2] MCL 500.3105 provides:
(1) Under personal protection insurance an insurer is liable to pay benefits for accidental bodily injury arising out of the ownership, operation, maintenance or use of a motor vehicle as a motor vehicle, subject to the provisions of this chapter.
(2) Personal protection insurance benefits are due under this chapter without regard to fault.
(3) Bodily injury includes death resulting therefrom and damage to or loss of a person's prosthetic devices in connection with the injury.
(4) Bodily injury is accidental as to a person claiming personal protection insurance benefits unless suffered intentionally by the injured person or caused intentionally by the claimant. Even though a person knows that bodily injury is substantially certain to be caused by his act or omission, he does not cause or suffer injury intentionally if he acts or refrains from acting for the purpose of averting injury to property or to any person including himself.
[3] "[T]he relationship between insurers and their insureds is `sufficient to permit fraud to be predicated upon a misrepresentation.'" Hearn v. Rickenbacker, 428 Mich. 32, 39, 400 N.W.2d 90 (1987), quoting Drouillard v. Metropolitan Life Ins. Co., 107 Mich.App. 608, 621, 310 N.W.2d 15 (1981).
[4] "In a fraud and misrepresentation action, the tortfeasor is liable for injuries resulting from his wrongful act, whether foreseeable or not, provided that the damages are the legal and natural consequences of the wrongful act and might reasonably have been anticipated." Phinney v. Perlmutter, 222 Mich.App. 513, 532, 564 N.W.2d 532 (1997).
[5] This Court stated:
We specifically approve the following statement in [De Villez v. Schifano, 23 Mich. App. 72, 77, 178 N.W.2d 147 (1970)]:
"We hold that the dramshop act affords the exclusive remedy for injuries arising out of an unlawful sale, giving away, or furnishing of intoxicants. King v. Partridge, 9 Mich.App. 540, 543, 157 N.W.2d 417 (1968). However, the act does not control and it does not abrogate actions arising out of unlawful or negligent conduct of a tavern owner other than selling, giving away, or furnishing of intoxicants, provided the unlawful or negligent conduct is recognized as a lawful basis for a cause of action in the common law." [Manuel, 386 Mich. at 164-165, 191 N.W.2d 474.]
[6] We note that the question whether the no-fault act provides the exclusive remedy for injuries arising out of "the ownership, maintenance or use of a motor vehicle" is not relevant here because the insureds argue that their injuries arose out of the insurer's fraudulent conduct, not out of "the ownership, maintenance or use of a motor vehicle."
[7] In Devillers, however, this Court concluded that because there was "no allegation of fraud, mutual mistake, or any other `unusual circumstance' . . . there [was] no basis to invoke the Court's equitable power." Devillers, 473 Mich. at 591, 702 N.W.2d 539.
[8] We note that, where a case involves a no-fault claim, this Court may still exercise its equitable power if there has been a determination that genuinely "unusual circumstances" such as fraud or mutual mistake were present. Devillers, supra at 590-591, 702 N.W.2d 539.
[9] In Tabor, the Court held that "[w]hile . . . a person cannot generally be justified in acting solely on the statement of his legal rights by an adverse agent in insurance controversies," relief is warranted if the statements are "so mixed with unconscionable conduct as to stand differently." Id. at 331, 6 N.W. 830. Not only did the insurer misrepresent the applicable law regarding forfeiture of policies and pressure the ill insured to immediately comply with the insurer's demands without allowing him to obtain independent advice, but, critically, the insurer also misrepresented facts that were within the exclusive knowledge of the insurer, such as the actions taken by the insurance commissioner and by some of the insured's neighbors, which directly affected the surrender of the insured's policy. Thus, the plaintiff could recover under her fraud claim. | 01-03-2023 | 03-01-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/240288/ | 236 F.2d 819
15 P.U.R.3d 403
HUMBLE OIL & REFINING COMPANY, Petitioner,v.FEDERAL POWER COMMISSION, Respondent.
No. 15704.
United States Court of Appeals Fifth Circuit.
June 30, 1956.Rehearing Denied Aug. 21, 1956.
Nelson Jones, Carl Illig, Houston, Tex., Bernard J. Caillouet, New Orleans, La., William J. Merrill, Houston, Tex., Bernard A. Foster, Jr., Washington, D.C., Rex G. Baker, Houston, Tex., Wm. H. Holloway, Tyler, Tex., Charles Janvier, New Orleans, La., Ross, Marsh & Foster, Washington, D.C., of counsel, for petitioner.
Willard W. Gatchell, Gen. Counsel for Federal Power Commission, Lambert McAllister, Asst. Gen. Counsel, C. Louis Knight, Atty., Washington, D.C., for respondent.
Before BORAH, RIVES, and BROWN, Circuit Judges.
BORAH, Circuit Judge.
1
This is one of six cases which presents a common question of law concerning the validity of orders of the Federal Power Commission suspending changes in rates for sales of natural gas by the respective petitioners.
2
Petitioner herein has invoked the jurisdiction of this Court under Section 19(b) of the Natural Gas Act to review an order of the Federal Power Commission issued on May 19, 1955, by which the Commission suspended for a period of five months a rate filed by petitioner covering certain of its sales of natural gas to United Gas Pipe Line Company.
3
The facts to the extent that they need be stated are these: By a contract dated February 9, 1954, petitioner agreed to sell natural gas to United for a term of nineteen years from the date of the initial delivery of gas thereunder, and deliveries commenced on June 1, 1954, which was six days prior to the date on which the Supreme Court handed down its decision in Phillips Petroleum Company v. Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035. As we set forth at length in Magnolia Petroleum Company v. Federal Power Commission, 5 Cir., 236 F.2d 785, the Commission thereafter issued its series of 174-Orders in which it promulgated rules and regulations providing for the filing of rate schedules by 'independent producers'1 of natural gas subject to the jurisdiction of the Commission in which schedules were to be set forth the terms and conditions of service and all rates and charges effective on and after June 7, 1954, for the transportation and sale of natural gas in interstate commerce. 'Rate schedule' was defined in the regulations to mean 'the basic contract and all supplements or agreements amendatory thereof, effective and applicable on and after June 7, 1954 * * *' And in respect to periodic increases contained in such basic contracts the regulations provided that: 'The operation of any provision of the rate schedule providing for future or periodic changes in the rate, charge, classification, or service after June 7, 1954, or the operation of any like provision in any initial rate schedule filed after June 7, 1954, shall constitute a change in rate schedule.' These regulations further provided that, with certain exceptions not here material, no change could be made in any such rate schedule without first filing a notice of change in rates not less than thirty nor more than ninety days prior to the effective date thereof pursuant to Section 4(d) of the Natural Gas Act.
4
On September 24, 1954, petitioner filed under protest and with jurisdictional reservations the aforementioned contract of February 9, 1954, as amended, covering its sales of natural gas to United, which when filed was assigned a number and designated a 'Rate Schedule' by the Commission. Under the terms of this contract, and to the extent here pertinent, the prices to be paid for all gas to be delivered to United during the life of the contract were stipulated to be as follows: during the one year period commencing on the date of first deliveries of gas thereunder (June 1, 1954 to June 1, 1955), 12.35 cents per Mcf., and during the period commencing on the expiration of the first one-year period and extending until November 1, 1955, 13,35 cents per Mcf. The contract also provided that 1.15 cents were to be added to each of the above-stated prices to cover a tax reimbursement of one cent per Mcf., and a service charge of .15 cents per Mcf. On April 21, 1955, in compliance with the regulations provided in the 174-Orders, but under like protest, petitioner filed with the Commission a notice to the effect that under and pursuant to the terms of its contract with United, the applicable price to be paid for gas delivered thereunder, effective June 1, 1955, would be 14.5 cents per Mcf. By an order issued May 19, 1955, the Commission ordered that a public hearing be held upon a date to be fixed by the Commission, and suspended the proposed changes in rates and charges 'until November 1, 1955, and until such further time as it is made effective in the manner prescribed by the Natural Gas Act.' The reasons for its action were stated by the Commission as follows: 'The increased rates and charges proposed in the aforesaid filings have not been shown to be justified and may be unjust, unreasonable, unduly discriminatory or preferential, or otherwise unlawful.' And its findings were that: 'It is necessary and proper in the public interest and to aid in the enforcement of the provisions of the Natural Gas Act that the Commission enter upon a hearing concerning the lawfulness of the said proposed changes, and that the above-designated supplement be suspended and the use thereof deferred as hereinafter ordered.' Following the issuance of the order of May 19, petitioner applied to the Commission for a rehearing thereof in which it sought to have the Commission 'affirmatively recognize the validity and effectiveness of all components of the rate set forth in Humble's contract with United Dated February 9, 1955 * * * including particularly the price thereby made effective on and after June 1, 1955, and that the Commission forthwith abrogate without hearing * * * or after such hearing * * * said order issued May 19, 1955.' The Commission, being of opinion that the grounds for rehearing alleged in the application did not present any question of fact or law not fully considered by it prior to the issuance of its May 19 order, and therefore did not warrant a rehearing, denied the application for rehearing by an order issued on June 20, 1955.
5
Following the denial of its application for rehearing, petitioner filed this petition for review together with a motion for stay pending review by this Court, urging in both pleadings that it is aggrieved and is suffering irreparable injury by reason of the fact that the revenues lost by it, alleged to be a net loss of $22,500 per month, cannot be recouped. In its petition for review, it claims that the order is invalid for numerous reasons, the most important of which are substantially as follows: (1) that the prices involved were contract prices and as such constituted the 'initial' rate filed by petitioner which is not subject to suspension under Section 4 of the Natural Gas Act; (2) that the order does not contain 'a statement in writing of its reasons for such suspension' as is required by Section 4(e) of the Act; (3) that the order is arbitrary, capricious, and unduly discriminatory, contrary to the provisions of the Natural Gas Act and to the Commission's announced rate policy; and (4) that the action of the Commission abrogates petitioner's contract and constitutes a confiscation of its property without due process of law, contrary to the provisions of the Fifth Amendment to the Constitution of the United States. The Commission, in turn, filed a motion to dismiss the petition for review and to deny the motion for stay on the grounds that this Court has no jurisdiction under Section 19(b) of the Act to review or to stay the order because it is not a definitive order entered after hearing and completion of the administrative process, and that in any event petitioner has failed to show legally cognizable irreparable injury or that the equities justify the issuance of a stay. Upon consideration of petitioner's motion for stay and the Commission's opposition thereto, this Court on August 25, 1955, issued an order denying the stay.
6
The questions presented by the petition and the motion to dismiss include the reviewability and, if reviewable, the validity of the Commission's order. The question of reviewability necessarily involves a determination of whether we have jurisdiction to review such order under Section 19(b) of the Natural Gas Act. In Magnolia Petroleum Company v. Federal Power Commission, supra, we observed that this statutory review provision of the Act contemplates a review by this Court of definitive orders entered after hearing and upon completion of the administrative process, and what we said there with regard to the conditions necessary for our review of the Commission's action is controlling here.
7
Applying this test of reviewability, we have here a situation where the Commission, exercising its regulatory jurisdiction and acting under one of the sections of the Act which do not require a hearing, has consistent therewith entered an order without a hearing first had. Applicable Section 4(e), in pertinent part, provides: 'Whenever any such new schedule is filed the Commission shall have authority * * * to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the natural-gas company affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect * * *.' Moreover, the order in question is in no proper sense a definitive order. It is a mere procedural step taken at the inception of and not upon the completion of the administrative process. A realistic appraisal of the order and the function it performs demonstrates that it is interlocutory and that its issuance had but one objective in view, to maintain the status quo between seller and purchaser pending the exercise of the Commission's statutory jurisdiction to inquire into the reasonableness of the rate increase.
8
As supportive of its claim that the suspension order here involved is reviewable, petitioner relies upon Atlantic Seaboard Corporation v. Federal Power Commission, 4 Cir., 201 F.2d 568, 572, but we think that case is clearly distinguishable from the case at bar. Consistent with what we have said above, the Court citing Federal Power Commission v . Metropolitan Edison Co., 304 U.S. 375, 58 S.Ct. 963, 82 L.Ed. 1408, there recognized that Section 19(b) gives the Courts of Appeals power to review an order of the Commission upon the petition of a party aggrieved and that mere preliminary or procedural orders or orders which do not finally determine rights of the parties should not be reviewed thereunder. On the facts there presented, however, the Court concluded that the order there sought to be reviewed was not of that sort, but instead was 'sufficiently distinct from the general subject of the litigation and sufficiently final and definitive to justify us in exercising the power of review vested in us by the statute.' Thus, it is apparent that the Court did not undertake in the Atlantic case to review an interlocutory order, such as the one we have here, which is not definitive under the announced test for reviewability under Section 19(b).
9
What is really sought by petitioner is that this Court should halt inquiry at the threshold in order to rule in limine upon the propriety of the Commission's action and whether it should proceed further. It may be desirable that the law should provide for a preliminary judicial review of questions of this kind, but in the absence of such a provision we cannot assume that power. If petitioner is correct in any or all of its several contentions relating to the validity of the order, this interlocutory suspension order may infect with invalidity the final, definitive order of the Commission which will issue after hearing had and findings made upon evidence. In that event, upon judicial review of the definitive order, the interlocutory order will be reviewable insofar as it may have affected the final order. The conclusion we have reached that this Court has no jurisdiction to review the suspension order at this time, renders it both inappropriate and unnecessary to pass upon the contentions that the prices involved constituted 'initial rates', that the Commission failed to state 'reasons' for such suspension as required by the Act, and that the order is contrary to the Natural Gas Act and violates petitioner's rights under the Fifth Amendment to the Constitution of the United States. The petition accordingly will be dismissed for the reason that Section 19(b) of the Act does not confer upon this Court jurisdiction to entertain it and it is so ordered.
10
JOHN R. BROWN, Circuit Judge, dissenting. For dissenting opinion see 236 F.2d 785.
On Petition for Rehearing
11
PER CURIAM.
12
As neither of the judges who concurred in the decision of the court in the above numbered and entitled cause is of opinion that the petition for rehearing should be granted, it is ordered that the said petition be, and the same is hereby, denied.
13
JOHN R. BROWN, Circuit Judge, dissents.
1
The term 'independent producer' was defined in the regulations, 18 C.F.R. § 154.91, as 'any person as defined in the Natural Gas Act who is engaged in the production or gathering of natural gas and who transports natural gas in interstate commerce or sells natural gas in interstate commerce for resale, but who is not primarily engaged in the operation of an interstate pipeline.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/544339/ | 907 F.2d 923
23 Collier Bankr.Cas.2d 608, Bankr. L. Rep. P 73,534In re John R. MANN, aka John Russell Mann, aka Johnny Mann, Debtor.John R. MANN, Plaintiff-Appellant,v.ALEXANDER DAWSON INC., a Nevada Corporation; ADIInvestments, Inc., Defendants-Appellees.John R. MANN, Plaintiff-Appellant,v.ADI INVESTMENTS, INC., Defendant-Appellee.
Nos. 88-6699, 89-55497.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 6, 1990.Decided July 12, 1990.
William J. Currer, Jr., Los Angeles, Cal., for plaintiff-appellant.
Lawrence Allen, Allen & Allen, Woodland Hills, Cal., Joseph Eisenberg, Leslie A. Cohen, Levine & Eisenberg, Los Angeles, Cal., for defendants-appellees.
Appeal from the United States District Court for the Central District of California.
Before CANBY, KOZINSKI and LEAVY, Circuit Judges.
KOZINSKI, Circuit Judge:
1
Today we consider the sad story of John R. Mann, a Chapter 11 debtor in possession who lost his property while pursuing his dreams. He appeals the district court's affirmance of various bankruptcy court decisions that permitted the foreclosure sale of his home and his subsequent eviction.
2
* John Mann is a music man: For more than forty years he has written, arranged and conducted music for a variety of businesses connected with commercials, recording and television. ER III, at 1-2. His long career has yielded many accomplishments, including production of a number of successful records and a hit television series.
3
But Mann had bigger dreams; he wanted to produce a singing competition called the "Great American Choral Festival." The Festival was to be more than just a business venture; it was going to be something special--"like the Olympics of singing." Id. at 5. Mann dreamed of a "friendly singing competition[ ]" open to singing groups from all over the nation, perhaps from all over the world, "bringing [together] all kinds of demographics of people, all kinds of music [and] all kinds of age brackets." Id. at 6, 9-10. And, if all went well, Mann envisioned a network television special. Id. at 10. Yes, indeed, Mann had dreams, Mann had vision; but, like many a budding entrepreneur, Mann had no money.
4
To finance the Festival, Mann sought out large corporate sponsors that might pay for the privilege of being associated with this event. At first he was successful, attracting industry giants like Hilton Hotels and Greyhound. Id. at 6. But for reasons unclear from the record, these sponsors turned sour on the idea, and Mann was forced to seek alternative financing. After an unsuccessful attempt to get Avon to sponsor the Festival, Mann decided to put up the necessary funds himself by mortgaging his home. That brought Mann to ADI Investments, Inc (ADI).
5
On February 17, 1983, Mann and ADI executed a "Loan Agreement" under which ADI was to lend Mann up to $1,350,000 for a term of three years at an interest rate equal to the average prime rate at Bank of America.1 The loan was secured by a promissory note and deed of trust on three contiguous parcels of land Mann owned in Chatsworth, California: Two parcels contained a total of eleven and a half acres of unimproved land, while the third included Mann's residence and an additional six and a half acres. Mann used part of the loan proceeds to pay off other encumbrances, and used the balance to finance the Festival. Id. at 24-26.2
6
As often happens in such circumstances, the Festival was not the great event Mann had dreamed it would be; indeed, it flopped. On the maturity date of the loan, April 1, 1986, Mann did not possess sufficient funds to make the required balloon payment. ER IA, at 41-42. Mann refused ADI's offer to defer the due date of the balloon payment on condition that the interest rate on the loan be raised to twelve percent. Id. at 42. Thus, on May 9, 1986, ADI recorded a notice of default and scheduled a foreclosure sale for September 10, 1986. Opinion (Sept. 2, 1988) at 4. Two days before the sale was to have taken place, Mann filed a voluntary petition under Chapter 11 of the Bankruptcy Code, which had the effect of automatically staying the sale. See 11 U.S.C. Sec. 362(a).
7
On October 21, 1987, after a trial, the bankruptcy court lifted the stay and permitted ADI to proceed with the sale of the property. In so doing, the court rejected Mann's claim that the loan agreement was, in fact, the purchase of an equity interest in the Festival, for which ADI had assumed the risk that the Festival would fail. The court also rejected Mann's claims of fraud, undue influence and interference with his equitable right of redemption.
8
Mann appealed the bankruptcy court's judgment. Interestingly, he did not appeal the lifting of the automatic stay. See Notice of Appeal (Oct. 30, 1987);3 nor did he seek a stay of the foreclosure sale pending appeal. Although Mann convinced the bankruptcy court to extend the stay twice in the hope of finding a buyer, the property remained unsold. On December 10, 1987, at midnight, the stay expired for the last time. ADI purchased the property the next day with a credit bid of $1,500,050. Approximately nine months later, the district court affirmed the bankruptcy court's October 21, 1987, judgment in its entirety. See Opinion (Sept. 2, 1988) & Order (Oct. 19, 1988).
9
But Mann did not give up his home easily. While his appeal was still pending in the district court, he refused to leave the Chatsworth property, contending that the foreclosure sale was unlawful because, inter alia, it violated the automatic stay. In an attempt to resolve this matter, ADI returned to the bankruptcy court--not once, but twice--obtaining orders making it clear that the stay had expired and ADI had possessed the right to foreclose. See Order (Jan. 6, 1988); Order (April 15, 1988). Free from the automatic stay, ADI successfully prosecuted an unlawful detainer action in state court. However, because the state court judgment referred only to "John Mann" and not "John Mann, debtor in possession," Mann claimed that the judgment could not be enforced against him without violating the automatic stay. Rather than contest this issue, ADI returned to the bankruptcy court a third time for a modified order for relief from stay. The court granted ADI's request, ordering:
10
that it is unnecessary as far as this Court is concerned for John R. Mann to be named as "Debtor in Possession" in the Superior Court Unlawful Detainer action and/or judgment entered in connection therewith.
11
Order (Sept. 1, 1988). This order was affirmed by the district court. See Opinion (Mar. 30, 1989).
II
12
Mann appeals the district court's orders of September 2, 1988, and October 19, 1988, affirming the bankruptcy court's determination that the transaction between Mann and ADI was a bona fide loan transaction and that ADI could foreclose its deed of trust to recover money owed it. Mann also appeals the district court's March 30, 1989, affirmance of the bankruptcy court's clarification of its order lifting the automatic stay, permitting ADI to enforce its unlawful detainer judgment against Mann. Before we consider these contentions, we must determine the appropriate standard of review.
13
A. Mann contends that the district court erred in reviewing the bankruptcy court's findings of fact in the foreclosure action under the clear error standard. According to Mann, the district court should have reviewed the bankruptcy court's findings of fact de novo, because the foreclosure action was not a "core" proceeding under 28 U.S.C. Sec. 157(b)(2). See Rosner v. Worcester (In re Worcester), 811 F.2d 1224, 1229 n. 5 (9th Cir.1987) (noting in dicta that "proceedings relating to the foreclosure sale's validity ... are not 'core' proceedings"). Likewise, Mann contends that we should give no deference to the bankruptcy court's findings.
14
We will assume without deciding that this was not a core proceeding. That does not mean, however, that the bankruptcy court's fact finding is entitled to little or no deference. In a related non-core proceeding such as this,4 the bankruptcy judge generally must prepare proposed findings of fact and conclusions of law for the district court, who must then review the bankruptcy court's proposals de novo. 28 U.S.C. Sec. 157(c)(1). However, when all parties consent to the bankruptcy court's jurisdiction in a related non-core proceeding, the district court reviews the bankruptcy court's findings of fact for clear error. See id. Sec. 157(c)(2); Daniels-Head & Assocs. v. William M. Mercer, Inc. (In re Daniels-Head & Assocs.), 819 F.2d 914, 918 (9th Cir.1987); DuVoisin v. Foster (In re Southern Indus. Banking Corp.), 809 F.2d 329, 331 (6th Cir.1987).
15
Here, Mann chose to file this adversary proceeding in the bankruptcy court, and he never objected to the court's jurisdiction prior to the time it rendered judgment against him. Through this conduct, he consented to the court's jurisdiction. See Daniels-Head, 819 F.2d at 918-19; DuVoisin, 809 F.2d at 331; see generally, White v. McGinnis, 903 F.2d 699 (9th Cir.1990) (en banc). The district court therefore properly reviewed the bankruptcy court's factual findings for clear error, as will we.
16
B. Under 11 U.S.C. Sec. 363(m), an appeal of a bankruptcy court's ruling on a foreclosure action generally cannot affect the rights of a good faith purchaser of the foreclosed property, unless the debtor stays the foreclosure sale pending an appeal. See Onouli-Kona Land Co. v. Estate of Richards (In re Onouli-Kona Land Co.), 846 F.2d 1170, 1171-73 (9th Cir.1988); Algeran, Inc. v. Advance Ross Corp., 759 F.2d 1421, 1423-24 (9th Cir.1985). Accordingly, the debtor's failure to obtain a stay normally renders the appeal moot. Algeran, 759 F.2d at 1423. This is true even when the purchaser knows of the pendency of the appeal or, as in this case, is a party to the appeal. See id. at 1424.
17
There are, however, two situations in which failure to obtain a stay will not render an appeal moot: where real property is sold to a creditor subject to the right of redemption, see Phoenix Bond & Indem. Co. v. Shamblin (In re Shamblin), 890 F.2d 123, 125 n. 1 (9th Cir.1989); Onouli-Kona Land, 846 F.2d at 1172-73; and where state law would otherwise permit the transaction to be set aside. See Rosner, 811 F.2d at 1228. We consider whether Mann's case fits into either of these wrinkles to the mootness rule.
18
1. In order to cure a default under a deed of trust, the trustor must pay the entire amount then due the beneficiary within the statutory period of redemption. Anderson v. Heart Fed. Sav., 208 Cal.App.3d 202, 256 Cal.Rptr. 180, 185-86 (1989). In California, the period for redemption runs from the time the foreclosure sale is noticed until five business days before the sale is scheduled to take place, but may never be less than three months. See Cal.Civ.Code Secs. 2924c(b)(1) & (e); Smith v. Allen, 68 Cal.2d 93, 436 P.2d 65, 65 Cal.Rptr. 153, 155 (1968).
19
ADI noticed the sale on May 9, 1986, and scheduled it for September 10, 1986. Mann did not cure the default. Instead, he filed his Chapter 11 petition on September 8, 1986, just two days prior to the scheduled sale date. Generally, the filing of bankruptcy will stay all proceedings relating to a foreclosure sale, including the running of a statutory or common law period of redemption. See 11 U.S.C. Sec. 362(a); Harsh Inv. Corp. v. Bialac (In re Bialac), 712 F.2d 426, 430-32 (9th Cir.1983) (right to redeem property of the debtor's estate under 11 U.S.C. Sec. 541 and thus covered by the automatic stay); see also Shamblin, 890 F.2d at 125 (foreclosure sales in violation of the automatic stay are void). Thus, Mann's bankruptcy filing automatically stayed the foreclosure sales.
20
Mann's bankruptcy filing, however, did not stay the running of the statutory period for Mann to redeem, as Mann filed when there were less than five business days left before the scheduled sale date. By that time, the redemption period had already expired. See Cal.Civ.Code Sec. 2924c(e). The automatic stay does not protect property interests that ceased to be in the debtor's estate prior to the commencement of the bankruptcy; see 11 U.S.C. Secs. 362(a)(3), 541(a) (automatic stay applies to "property of the estate," which includes all of the debtor's legal and equitable interests in property as of the commencement of the bankruptcy); In re Cole, 88 B.R. 763, 767 (Bankr.E.D.Va.1988); nor can it be used to revive such interests. Because Mann neither cured the default nor filed for Chapter 11 protection during the statutory redemption period, he forfeited his right of redemption.5
21
2. While mere inadequacy of price, standing alone, will not justify setting aside a trustee's sale, a sale may be vacated under California law upon a showing of "gross inadequacy of price coupled with even slight unfairness or irregularity." Whitman v. Transtate Title Co., 165 Cal.App.3d 312, 211 Cal.Rptr. 582, 589 (1985). The district court rejected Mann's claim that the approximately $1.5 million received for the property here was grossly inadequate, see Order (Oct. 19, 1988) at 3, and we see nothing in the record that would place that finding in doubt. The bankruptcy court allowed the debtor more than fourteen months to try to sell the property prior to the foreclosure sale, yet Mann was unable to find a buyer at any price. Id. That Mann found a buyer willing to pay more for the property eight months after the foreclosure sale does not indicate a gross inadequacy in the price.
22
Nor is there any evidence of irregularity or unfairness surrounding the sale to ADI. Mann's contention that it was improper to sell the land as a whole is meritless; California Civil Code section 2924g(b) provides that "[w]hen the property consists of several known lots or parcels they shall be sold separately unless the deed of trust or mortgage provides otherwise." Here the deed of trust provides that the trustee may sell the property "at the time and place listed by it in [the] notice of sale, either as a whole or in separate parcels." ER II, at 17.
23
Likewise, Mann's contention that the sale could not have occurred until twelve days after the automatic stay expired is meritless. Mann claims that Cal.Civil Code Sec. 2924g(d)6 mandated a seven-day waiting period following the expiration of the stay, and that the bankruptcy court's order itself required an additional five-day delay. However, while the bankruptcy court had in an earlier order imposed a five-day delay in the sale, see Judgment After Trial and Order Thereon (Oct. 21, 1987) at 4, the December 8, 1987, order specifically permitted ADI to conduct its foreclosure sale "on or after December 11, 1987," one day after the stay expired. See Order Extending Stay (Dec. 8, 1987) at 2. In addition, section 2924g(d) permits the court to shorten the statutory seven-day waiting period, and the court clearly did so in its order by permitting the sale to go forward immediately following the expiration of the stay.
24
Because there is no basis for setting aside the foreclosure sale, that portion of Mann's appeal relating to the loan transaction between Mann and ADI and the foreclosure sale is moot. Regardless of how we resolve Mann's other claims concerning the validity of the loan transaction and the sale, there is no way he can recover his property.
25
C. Mann also appeals the district court's affirmance of two orders entered by the bankruptcy court that clarified the bankruptcy court's order terminating the automatic stay, entered on October 21, 1987. As noted above, ADI requested that the court issue these orders so that it could proceed in state court with its unlawful detainer action against Mann.7 Mann first contends that the bankruptcy court violated Fed.R.Civ.P. 60(a), applicable to the bankruptcy courts through Bankr.R. 9024, by failing to obtain a leave from the district court before modifying the order.8 However, because Mann did not timely appeal the lifting of the automatic stay, see Order Clarifying Prior Orders Terminating the Automatic Stay and Awarding Sanctions (Sept. 1, 1988) at 2, the bankruptcy court was not required to seek the district court's permission.
26
Mann further contends, also without merit, that the bankruptcy court's September 1, 1988, order interfered with an ongoing state court unlawful detainer action. The order, however, merely clarified the fact that the automatic stay had been lifted in regard to the foreclosure property since October 21, 1987, and that ADI could continue to enforce its interests in the property, including pursuit of the unlawful detainer action in state court. The lifting of the automatic stay was well within the province of the bankruptcy court, 11 U.S.C. Sec. 362(d), and did not interfere with the state court proceedings.
27
D. ADI contends that, as the prevailing party, it is entitled to attorneys' fees pursuant to the promissory note. The note provides that Mann must pay "reasonable attorney fees and costs incurred in the collection of this note or any part hereof without suit, or in the event of suit such additional sum as attorney fees as the Court may adjudge reasonable." ER II at 15. This appeal is part of ADI's efforts to collect the money Mann owed it under the agreement. We therefore remand to the bankruptcy court to determine what attorneys' fees ADI reasonably incurred in responding to this appeal.
28
ADI also requests sanctions against Mann and his attorney "for their bad faith prosecution of this sham and moot Appeal," Brief of Appellees in No. 89-55497 at 21, and for "excessive bulk" in Mann's excerpts of record. Although most of Mann's arguments are weak, we do not find them frivolous. And, while there are some extraneous materials in Mann's excerpts, we do not believe they unduly burdened us or appellees. We therefore deny ADI's request for sanctions.
III
29
The decisions of the district court are affirmed in their entirety. This matter is remanded to the bankruptcy court for further proceedings regarding ADI's attorneys' fees.
1
A day after the parties signed the loan agreement, ADI acquired a twenty-five percent equity interest in the Festival for ten dollars. At the time, however, the Festival was in a negative capital position and its value was uncertain
2
As additional consideration for the loan, ADI received a promise of ten percent of any profit Mann might earn upon development of the Chatsworth property. ER II, at 5. Mann never developed the property
3
Mann did appeal two orders--dated January 6, 1988, and April 15, 1988--that clarified the October 21, 1987, lifting of the stay. See Notice of Appeal (Jan. 15, 1988); Notice of Appeal (Apr. 18, 1988). The appeal of these orders was too late, however, to affect the validity of the relief from the stay granted the previous October. See Bankr.R. 8002(a) (ten-day rule for appeal from the bankruptcy court)
4
Bankruptcy courts may hear two categories of proceedings: core proceedings as defined in 28 U.S.C. Sec. 157(b)(2), and non-core proceedings that are "otherwise related to a case under title 11." Id. Sec. 157(c)(1). The latter category is very broad, DuVoisin v. Foster (In re Southern Indus. Banking Corp.), 809 F.2d 329, 331 (6th Cir.1987), including nearly every matter directly or indirectly related to the bankruptcy. But see Kelley v. Nodine (In re Salem Mortgage Co.), 783 F.2d 626, 634 (6th Cir.1986) (28 U.S.C. Sec. 157(c)(1) does not include proceedings involving transactions or events with only "an extremely tenuous connection" to the bankruptcy)
Here, the proceedings concerning the mortgage and foreclosure sale of Mann's property clearly were "related" to his bankruptcy as that term is used in section 157(c)(1). The property was "property of the estate" under 11 U.S.C. Sec. 541(a), it secured an obligation owed by Mann, and the foreclosure sale could not have occurred without the bankruptcy court's permission. See id. Sec. 362(a). Thus, there clearly was more than a "tenuous connection" between the proceedings and Mann's bankruptcy.
5
Mann also contends that ADI interfered with his right of redemption. However, Mann admitted that ADI did nothing to prevent him from meeting his financial obligations or from redeeming his property. See Opinion (Sept. 6, 1988) at 8. Thus, we find no basis for concluding that Mann's right of redemption had been impaired
6
Cal.Civil Code Sec. 2924g(d) provides in relevant part:
[T]he sale shall be conducted no sooner than seven days after the ... expiration or termination of the injunction, restraining order, or stay (which required postponement of the sale), whether by entry of an order by a court of competent jurisdiction, operation of law, or otherwise, unless the injunction, restraining order, or subsequent order expressly directs the conduct of the sale within that seven-day period.
7
Unlike Mann's claims relating to the validity of the loan transaction and the foreclosure sale, Mann's claims that the bankruptcy court erred in issuing its clarifying orders are not moot; they do not directly relate to the foreclosure sale, but rather to the bankruptcy court's orders issued to enable ADI to proceed with its unlawful detainer action in state court. That Mann failed to obtain a stay on the sale pending appeal does not affect his ability to obtain appellate relief on these issues
8
Fed.R.Civ.P. 60(a) provides:
Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1136500/ | 692 So.2d 1236 (1997)
STATE of Louisiana
v.
Brian FEFIE.
No. 96-KA-605.
Court of Appeal of Louisiana, Fifth Circuit.
March 25, 1997.
*1237 Jack M. Capella, District Attorney, Vincent Paceria, Leigh Anne Wall, Assistant District Attorneys, Gretna, for plaintiff-appellee.
Linda Davis-Short, 24th Judicial District, Indigent Defender Board, Gretna, for defendant-appellant.
Before GAUDIN, GRISBAUM and WICKER, JJ.
GAUDIN, Judge.
Brian Fefie was convicted by a Jefferson Parish jury of attempted distribution of cocaine and sentenced to 10 years at hard labor as a multiple offender. On appeal, he assigns these trial court errors:
(1) the trial judge erred in denying his (Fefie's) motion asking the state to reveal the name of the confidential informer,
(2) the trial judge improperly allowed evidence of other crimes,
(3) the trial judge did not tell the defendant of his right to a trial and to remain silent at the multiple offender hearing,
(4) the trial judge failed to set aside Fefie's prior sentence before sentencing him as a multiple offender, and
(5) Fefie was not advised of the prescriptive period for seeking post conviction relief.
Also, appellant asks this Court to search for errors patent.
We find no merit in (1) and (2), above; consequently, Fefie's conviction is affirmed. There were problems with the sentencing procedure, however. We remand for resentencing. The only errors patent we found were in regard to the sentencing.
ASSIGNMENT NO. 1
Fefie contends that the confidential informer (hereinafter called "C.I.") was more than a mere tipster. The C.I. pointed Fefie out to the undercover officer who was there to make a purchase. The C.I. made an introduction and was present during the transaction, wherein the undercover officer paid $1,000.00 to Fefie for an amount of crack cocaine; however, the C.I. did not play a crucial role in the sale. He did not participate in either the exchange of money or contraband and said nothing to either the undercover officer or Fefie after introducing them to each other.
Fefie was not immediately arrested because a narcotics investigation was ongoing.
As a general rule, the state is permitted to withhold the identity of an informer. See State v. James, 396 So.2d 1281 (La.1981); State v. Quetant, 466 So.2d 567 (La.App. 5 Cir.1985); and State v. Jones, 587 So.2d 787 (La.App. 3 Cir.1991), writs denied at 590 So.2d 78 (La.1991).
This privilege protects the public interest and also law enforcement by encouraging persons to supply information to the police without fear of reprisal. Only when a defendant's right to prepare a defense is prejudiced should the informer be identified. See State v. James, supra. To gain disclosure, an accused must demonstrate exceptional circumstances. See also State v. Davis, 411 So.2d 434 (La.1982).
Fefie argues that he was unable to present an entrapment defense because, according to his brief, "... he did not know the name of the confidential informant so he could not know what was said to him to convince him to proceed with the transaction..." and "... he was unable to confront the confidential informant in any manner." Also, Fefie contends that without knowing who the C.I. was he (Fefie) "... was unable to contradict the testimony of the detectives ..."
These are not exceptional circumstances. Fefie could have testified about what the *1238 C.I. said and his trial attorney cross-examined the detective at length about the C.I. Fefie took the witness stand only to say, under oath and with the jury excused, that he understood his right to testify but that he was waiving this right.
At trial on January 5 and 6, 1994, the state presented the testimony of a forensic analytical chemist employed by the Drug Enforcement Administration and also the testimony of two police officers, Reginald Jacque and Lon Boudreaux. Jacque is a member of the New Orleans Police Department's narcotics unit while Boudreaux is a City of Gretna officer; both were assigned to the New Orleans Drug Enforcement Task Force.
After the C.I. introduced Jacque to Fefie, the C.I. said or did nothing. The facts and circumstances presented here are fairly common to almost all cases involving the testimony of confidential informants.
Fefie's right to prepare and submit an entrapment defense was not prejudicial; at the very least, exceptional circumstances sufficient to upset the privilege shielding confidential informants were not shown.
ASSIGNMENT NO. 2
In this assignment of error, Fefie argues that at numerous times during the testimony, the trial judge allowed police officers to testify that they knew Fefie from prior investigations, thus constituting indirect reference to other crimes. Fefie cited four examples.
When detective Jacque was testifying, he said that "... the subject (Fefie) was a little apprehensiveI later learnedabout doing deals with people he didn't know." Defense counsel objected because of hearsay, and the trial judge admonished the jury to disregard the witness' remark. Defense counsel did not request further relief.
When detective Boudreaux was testifying, he said that he had "... known (Fefie) through previous investigations." A reference by a police officer to prior contact with a defendant is not a reference to other crimes committed by him. See State v. Washington, 430 So.2d 641 (La.1983); and State v. Hobdy, 494 So.2d 1321 (La.App. 2 Cir.1986), writs denied at 502 So.2d 110 (La. 1987). In any event, Fefie's defense counsel did not ask for an admonition.
Boudreaux also testified that when the investigation of Fefie was instituted, he (Boudreaux) didn't have to check on who Fefie was because "... I knew the person existed." This testimony was elicited during cross-examination. Defense counsel neither objected to this testimony nor asked for an admonition. The fact that a policeman has "known" a person for a number of years does not imply that that person has committed other crimes. See State v. Green, 409 So.2d 563 (La.1982).
Lastly, Fefie complains about Boudreaux saying that the C.I. knew that the police were "... interested in doing an investigation on Mr. Fefie..." As in the previous instance, this testimony came out on cross-examination and was not objected to.
This assignment of error is without merit.
ASSIGNMENTS 3, 4 AND 5
These assignments of error relate to the sentencing procedure. It does not appear, from the record, that Fefie was adequately advised of his rights prior to stipulating to the multiple offender bill of information. The record also does not indicate that Fefie's original sentence was vacated before sentence was imposed pursuant to the multiple offender bill.
We remand only for resentencing.
CONVICTION AFFIRMED; REMANDED FOR RESENTENCING. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601641/ | 869 So.2d 1040 (2003)
Frank Adam SEIGFRIED, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2002-KA-01488-COA.
Court of Appeals of Mississippi.
October 21, 2003.
Rehearing Denied February 3, 2004.
Certiorari Denied April 8, 2004.
*1041 Jim Davis, Columbia, attorney for appellant.
Office of the Attorney General by John R. Henry, attorney for appellee.
Before McMILLIN, C.J., BRIDGES, THOMAS and LEE, JJ.
*1042 LEE, J., for the Court.
PROCEDURAL HISTORY
¶ 1. On May 7, 2001, Frank Adam Seigfried was indicted by a Harrison County grand jury on the charge of sexual battery without consent. After a jury trial in August 2002, Seigfried was convicted on the charge and sentenced to serve twenty years in prison. His motion for new trial or in the alternative a judgment notwithstanding the verdict was denied. He appeals to this Court arguing that the verdict was against the overwhelming weight of the evidence, that the court erred in denying his requested jury instructions, that the court erred in allowing a video receipt into evidence, and that the cumulative effect of errors deprived him of a fair trial. Having reviewed each issue, we find no merit and affirm.
FACTS
¶ 2. On the evening of November 10, 2000, fourteen-year-old J.M., sixteen-year-old B.V.,[1] and B.V.'s forty-nine year-old friend, Frank Adam Seigfried, got together with plans to do yard work at Seigfried's home, then have a sleepover. The three went to a store, Seigfried bought whiskey, then they went to Seigfried's home and drank the liquor. Later, Seigfried and the boys went to a video rental store and rented three movies, including two pornographic movies which Seigfried selected. Once back at Seigfried's home, the three drank more whiskey and watched the movies. Seigfried talked about "gay stuff" and bragged on the number of sexual encounters he had, which made the boys uncomfortable.
¶ 3. The boys left Seigfried's home and went to a casino to play video games for a few hours before returning to Seigfried's home. When the boys returned, Seigfried was in bed, and they went to another room where the television was located to sleep for the night. J.M. was on the floor, and B.V. was on the couch. Later, Seigfried entered the room, laid down next to J.M. and began stroking him. He unzipped J.M.'s pants and performed an act of fellatio on him. No consent was asked for or given. J.M. testified that he did not ask Seigfried to stop because, "I felt very weird, and felt like I was going to die, because I had a lot of things went through my head." J.M. testified that Seigfried next went to B.V., but J.M. did not look to see what happened between them because he was in shock and spent the remainder of the night crying.
¶ 4. The following morning, the three went to a casino for breakfast. Afterwards, the boys told B.V.'s sister what had happened, then told the police the same day.
DISCUSSION
I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?
¶ 5. Seigfried first argues that the verdict was against the overwhelming weight of the evidence and that he is entitled to a new trial. We look to our standard of review:
"In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial." Only in those cases where the *1043 verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will this Court disturb it on appeal.... Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury.
Brady v. State, 722 So.2d 151 (¶ 19) (Miss. Ct.App.1998) (citations omitted).
¶ 6. Seigfried moved for a directed verdict at the close of the State's evidence, arguing that J.M.'s testimony was uncorroborated and contradictory to prior statements he had made, and the State had failed to prove that the act was done without consent. The judge found a directed verdict was not in order since sufficient evidence was presented to allow the jury to decide the case. After the verdict was announced, Seigfried filed a motion for a new trial or in the alternative a judgment notwithstanding the verdict. Therein, he raised the same issues brought in his motion for directed verdict and argued the court erred in denying certain jury instructions, among other things. After a hearing, the motion was denied.
¶ 7. Seigfried's main argument in this issue concerns whether the State proved J.M. failed to consent. Seigfried's indictment lists Section 97-3-95(1)(c) as the charging statute. Under part (c) of section (1), Seigfried is guilty of sexual battery if he sexually penetrates, "[a] child at least fourteen (14) but under sixteen (16) years of age, if the person is thirty-six (36) or more months older than the child...." Miss.Code Ann. § 97-3-95(1)(c) (Rev. 2000). The language of the indictment, however, charges that Seigfried, "did wilfully, purposely, unlawfully and feloniously commit Sexual Battery upon J.M., without the consent of the said J.M., by engaging in the act of sexual penetration, to wit: by performing fellatio on the said J.M. ...." This language is reflective of section (1)(a) of the statute, not (1)(c). Section (1)(a) fails to mention age but simply states that a person is guilty of sexual battery if he engages in sexual penetration with another person without his or her consent. The State proceeded at trial to prosecute Seigfried on section (1)(a) which includes the consent element.
¶ 8. Seigfried argues that the State failed to prove that J.M. failed to consent and cites the following facts in support of his argument: both boys felt free to come and go from Seigfried's home as evidenced by their trek to the casino arcade; J.M. testified that he did not say no to Seigfried's advances, nor did he try to stop him; J.M. did not act like a fearful or intimidated child, since he openly drank liquor with Seigfried; and no evidence was presented to show that Seigfried threatened J.M. The State rebuts that, although J.M. testified that he acquiesced to Seigfried's actions out of fear, such acquiescence is not consent. Plus, J.M.'s testimony was corroborated by the testimony of his friend, B.V., by J.M.'s act of crying after the event and by J.M.'s reporting of the incident to the police the day after it happened; therefore, the State claims the case was sufficient to submit to the jury.
¶ 9. A rape victim's uncorroborated testimony alone is sufficient where it is consistent with the circumstances. McKnight v. State, 738 So.2d 312(¶ 10) (Miss.Ct.App.1999). Although we recognize that this is a case of sexual battery and not rape, here, J.M.'s testimony was corroborated by B.V., plus it was not discredited nor contradicted. Whether or not J.M. consented was for the jury to determine based on evidence presented to them. Failure to resist a sexual advance out of perceived fear of bodily harm has been shown to negate allegations that such inaction constituted consent. See Hull v. State, 687 So.2d 708, 723 (Miss.1996).
*1044 ¶ 10. The jury was told how J.M. cried after the fact, how he felt intimidated into submission, and how he was under the influence of alcohol during the episode. Although J.M. failed to show that Seigfried threatened him or assaulted him in any way, save the act at issue, the jury was able to view this evidence and the demeanor of the witnesses in determining whether or not J.M.'s actions constituted consent. Accordingly, we will not disturb the verdict.
II. DID THE COURT ERR IN REFUSING AND GRANTING CERTAIN JURY INSTRUCTIONS?
¶ 11. Seigfried argues that the court erred in refusing certain of his requested jury instructions and in granting one of the State's instructions which misstated the law.
In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found.... The main query is whether (1) the jury instruction contains a correct statement of the law and (2) whether the instruction is warranted by the evidence.
Sanchez v. State, 792 So.2d 286 (¶¶ 6-7) (Miss.Ct.App.2001).
a. Instruction D-7
¶ 12. Seigfried first argues that the court erred in refusing his requested instruction D-7 which stated:
The Court instructs the Jury that consent is a defense to a Sexual Battery charge. Consent may be manifested by signs, actions, or facts, or by inaction or silence, from which arises an inference that the consent has been given. It exists where a person by his line of conduct has shown a disposition to permit another person to do a certain thing without raising objection thereto.
The State has the burden to prove that [J.M.] did not consent to the Defendant's acts on November 11, 2000. If the State has failed to prove beyond a reasonable doubt that [J.M.] did not consent to the Defendant's acts of November 11, 2000, then you must return a verdict of not guilty.
¶ 13. Seigfried argued to the trial court that in refusing to give this instruction, the judge effectively took away his ability to defend himself since this instruction reflected the major theory of his case, which was that J.M. consented. The State referred the judge to McKnight v. State, 738 So.2d 312 (Miss.Ct.App.1999). In McKnight, the judge refused to grant the exact same instruction as Seigfried's requested D-7. We affirmed the refusal and quoted the following rules:
[A]n instruction which instructs the jury on the law, according to the facts, is sufficient, and a duplicate instruction in different words, requested by the defendant, is not required. Also, a court is not required to instruct the jury over and over on a point of law, even though some variations are used in different instructions. If the jury is fairly instructed by other instructions, the refusal of similar instructions is not reversible error.
McKnight, 738 So.2d at 319 (¶ 24) (citations omitted). In the present case, the judge commented that the phrase "without consent" is easily grasped, and the jury could certainly grasp the definition of the phrase. Also, the judge noted that in light of McKnight, the instruction was not needed.
¶ 14. Seigfried makes much of the fact that during deliberations the jury sent a note to the judge which read, "in regard *1045 to a minor what is concent [sic]." The judge sent a note back to the jury which responded, "You have received all of the evidence and have been instructed as to the law. Please resume your deliberations." After sentencing, the issue of the jury note came up again. The judge noted the following with regard to instruction D-7 and the jury's note:
Well, that instruction has nothing to do with the inquiry from the jury. That instruction simply gave some examples of what could or could not bewhat may or may not be consent. That instruction had nothing to do with a minor. And this note strictly states "In regard to a minor, what is consent?"
The way the case was indicted, it was indicted as if it was a sexual battery charge againstwith the victim being an adult. And it's the Court's opinion that all that did was place a greateror an additional element that the State had to prove, lack of consent. And so I don't think that instruction was necessary or needed.
¶ 15. Seigfried was not indicted for sexual battery against a minor, but on a general charge; thus, the jury's confusion was misplaced. Wherever the judge's confusion lay with regard to the State's need to prove consent or lack thereof, the issue of consent was covered in instruction S-1 which was given and read:
The Court instructs the Jury that the Defendant, FRANK ADAM SEIGFRIED, is charged in an indictment with the crime of Sexual Battery.
If you find from the evidence in this case beyond a reasonable doubt that:
1. On or about November 11, 2000, in the Second Judicial District of Harrison County, Mississippi,
2. The Defendant, FRANK ADAM SEIGFRIED, did willfully, purposely, unlawfully and feloniously commit Sexual Battery upon J.M., without the consent of the said J.M.,
3. By engaging in the act of sexual penetration, to wit: by performing fellatio upon the said J.M.,
then you shall find the Defendant, FRANK ADAM SEIGFRIED, Guilty of Sexual Battery.
If the State has failed to prove any one or more of these elements beyond a reasonable doubt, then you shall find the Defendant Not Guilty of Sexual Battery.
¶ 16. As stated earlier, so long as the instructions fairly announce the law, duplicate instructions on the same point are not needed. Instruction S-1 noted above reflected the statutory language, and the judge found that the jury could "easily grasp" the basic meaning of consent; thus, any additional instruction was not warranted.
¶ 17. The matter of the victim's status as a minor was not an issue, since the State proceeded through the trial on the premise that he was an adult. We find the judge's response to the jury's question to be without error. Also, we find no fault in the judge's denial of instruction D-7, in light of McKnight and in light of the fact that the issue of consent was addressed in instruction S-1, which was given.
b. Instruction D-4
¶ 18. Seigfried also requested Instruction D-4 which instructed on the lesser-included offense of assault. We look to the definition of what constitutes a lesser-included offense:
Whether applied for the benefit of the State or defense, in order to authorize such instruction the more serious offense must include all the elements of the lesser offense, that is, it is impossible to commit the greater offense without at the same time committing the *1046 lesser included offense. Also, there must be some evidence to support the lesser included offense.
Trigg v. State, 759 So.2d 448 (¶ 8) (Miss.Ct. App.2000).
¶ 19. Seigfried's requested instruction described three possible verdicts which could be reached including guilt of sexual battery, guilt of simple assault, or not guilty. The instruction then described elements of each offense. Seigfried argued to the judge that the State failed to prove that J.M. did not consent, and without such proof he could, at most, be guilty of simple assault; thus, the instruction was needed. In refusing this instruction, the court stated that, "in this case, the only testimony has been one specific act that I don't think leads to any interpretation other than whether or not the act occurred, or whether it did or did not occur, and then thereforeand subsequently, whether or not it was with or without consent." Thus, the judge found no evidentiary basis for the instruction on assault, as required by Trigg.
¶ 20. Further, in Trigg, this Court addressed whether simple assault could be a lesser-included offense of sexual battery:
It seems clear that the more serious offense of sexual battery does not include all of the elements of simple assault. In fact, they are quite dissimilar in that one could conduct a sexual battery against a person and not commit simple assault because the element of "bodily injury" is missing from the sexual battery statute. Therefore, simple assault does not seem to qualify as a lesser-included instruction of sexual battery.
Id. at (¶ 9). No bodily injury was shown here, nor was any other evidence submitted to support the jury's finding of simple assault rather than sexual battery. We find the trial court did not err in refusing instruction D-4.
III. DID THE TRIAL COURT ERR IN ADMITTING A RECEIPT FROM A VIDEO STORE?
¶ 21. Seigfried complains that the trial court erred in allowing the State to introduce into evidence a receipt from a video store where he allegedly rented three videotapesthe movie, "The Patriot," and two pornographic movies.
Our standard of review regarding whether the trial court committed error in the admission of particular evidence is well settled. The trial judge has considerable discretion in determining the admissibility of evidence. We will not reverse the trial court's decision merely because of an erroneous evidentiary ruling. Rather, the appellant must demonstrate that he was effectively denied a substantial right by the evidentiary ruling before a reversal is required. There must be a showing that the trial judge abused his discretion and that "the admission or exclusion of evidence ... results in prejudice and harm or adversely affects a substantial right of a party."
Kidd v. State, 793 So.2d 675 (¶ 27) (Miss.Ct. App.2001) (citations omitted). Seigfried claims the receipt which corroborated J.M.'s testimony was not properly authenticated and, thus, was inadmissible.
¶ 22. In his argument, Seigfried questions the manner in which the receipt was obtained. Investigator Earl Grimes of the Biloxi Police Department went to the video store where Seigfried had allegedly rented videotapes. He presented a subpoena duces tecum to the store manager and was given a pile of receipts from Seigfried's account to examine. In the pile, Officer Grimes found a receipt dated November 10, 2000, for "The Patriot" and for two pornographic videos, which both J.M. and *1047 B.V. testified were the three videos rented by Seigfried.[2]
¶ 23. On appeal to this Court, Seigfried argues that the receipt was inadmissible without a custodian of records from the video store testifying as to the authenticity of the receipt. The trial judge ruled the receipt admissible based on Officer Grimes's testimony that he obtained the receipt after presenting a properly executed subpoena duces tecum from the justice court. Additionally, the judge found sufficient indicia of trustworthiness, citing to Mississippi Rule of Evidence 902(11)(a)'s concluding sentence which states with regard to self-authentication of records of regularly conducted activities, "Such records are not self-authenticating if the sources of information or the method or circumstances of preparation indicate lack of trustworthiness."
¶ 24. Rule 901(a) of the Mississippi Rules of Evidence states, "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." We note the previously stated standard of review concerning the trial court's considerable discretion in admitting evidence. Having reviewed the circumstances under which the receipt was obtained, Officer Grimes's testimony concerning the same, and the judge's ruling as dictated in the record, we find the judge did not abuse his discretion in admitting the evidence. This issue is without merit.
IV. DID THE CUMULATIVE EFFECT OF ERRORS DEPRIVE THE APPELLANT OF A FAIR TRIAL?
¶ 25. Seigfried finally argues that the cumulative effect of errors he raises on appeal deprived him of a fair trial. Having found no error with other issues he raises on appeal, we find this issue to be without merit.
¶ 26. THE JUDGMENT OF THE SECOND JUDICIAL DISTRICT OF THE HARRISON COUNTY CIRCUIT COURT OF CONVICTION OF SEXUAL BATTERY WITHOUT CONSENT AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
NOTES
[1] The boys were minors at the time of the incident, and we use initials to protect their identities.
[2] Officer Grimes testified that the receipt for the three movies was dated November 11, 2000, and no receipt was found in the pile from November 10, which was the date the boys were with Seigfried. However, in our review of this receipt, we note the officer's apparent confusion in that the actual receipt states at the bottom, "TODAY IS Friday 11/10/2000 6:54 p.m.," but the due date for return of the movies is listed beside their titles as Saturday, November 11, 2000. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601930/ | 361 F.Supp. 356 (1973)
Edna HOWERTON, next friend of James Arthur Howerton, et al., Plaintiffs,
v.
MISSISSIPPI COUNTY, ARKANSAS, et al., Defendants.
George HOOVER, Jr., on Behalf of himself and all other Persons Similarly Situated, Plaintiffs,
v.
MISSISSIPPI COUNTY, ARKANSAS, et al., Defendants.
Nos. J-71-C-54, J-71-C-71.
United States District Court, E. D. Arkansas, Jonesboro Division.
May 11, 1973.
*357 Julian Tepper, W. Anthony Fitch, Stanley Herr, Washington, D. C., Thomas B. Tinnon, Mountain Home, Ark., John T. Lavey, Little Rock, Ark., Bart G. Mullis, Pine Bluff, Ark., Oscar Fendler, Blytheville, Ark., Eudox Patterson, Hot Springs, Ark., and Richard S. Arnold, Texarkana, Ark., for plaintiffs.
Graham Sudbury, Gerald Pearson, Pros. Atty., Second Judicial District, Blytheville, Ark., for defendants.
MEMORANDUM OPINION
EISELE, District Judge.
This case arises from two distinct complaints that the Court ordered consolidated for disposition. The complaints contain similar factual allegations, legal contentions, and prayers for relief; moreover, defendants in both cases are identical. The complaints are based on the alleged experiences of three inmates of the Mississippi County Penal Farm. In addition to their individual claims, plaintiffs raise class claims on behalf of all similarly situated. Named as defendants are: Mississippi County; A. A. "Shug" Banks, Mississippi County Judge; Dan Blodgett, former Superintendent of the Penal Farm; and James Bobbitt, present Superintendent of the Penal Farm. The objects of the suit are a declaratory judgment, preliminary and permanent injunctions, and "other appropriate relief" on the grounds that conditions and practices in the institution constitute "cruel and unusual punishment" contrary to command of the Eighth Amendment of the United States Constitution. Jurisdiction is invoked under 28 U.S.C. §§ 1343(3), 2201 (1970). The suit is in equity pursuant to the provisions of 42 U.S.C. § 1983 (1970). Plaintiffs allege deprivations under color of state law of rights, privileges and immunities secured by the Eighth, Thirteenth and Fourteenth Amendments to the Constitution.
The complaint alleges, inter alia, that inmates work with inadequate tools, without safety instructions, and with *358 co-workers inexperienced and unfit for labor; are poorly clothed, inadequately fed and given little medical care; are living under unsanitary conditions with inadequate sanitary plumbing, showers, or kitchen facilities; and are subject to assaults by fellow inmates who actually "run" the penal farm.
Plaintiffs attack Ark.Stat.Ann. § 46-502 et seq. (1947), which permits the compelling of misdemeanants to work on public projects and the contracting by one county or municipality with another to supervise, maintain, and work prisoners. Plaintiffs allege that defendant institution not only routinely forces those sentenced for misdemeanor violations by Mississippi County courts to work on public projects but also contracts with other governmental units outside of said county to house and work the latter's misdemeanor convicts. Plaintiffs allege: "This is in simplest terms a contract for involuntary servitude of inmates who are not sentenced by courts in Mississippi County. This results in out-of-county judges and sheriffs conveying to Mississippi County their poorest and most criminal inmates for this County Penal Farm to keep and labor, all to the danger of lives and liberties of Mississippi County inmates."
Shortly after the filing of this suit on September 29, 1971, defendants filed a motion for dismissal on the basis that the plaintiffs lacked standing to raise the issues surrounding the constitutionality of the penal farm since none were incarcerated therein at the time the suit was filed.[1] The Court concluded, however, (and so informed counsel in a letter of March 16, 1972) that after consolidation at least one of the plaintiffs had standing and that the suit was properly a class action on behalf of present and future inmates of the institution.
The Court understands that plaintiffs have received complete cooperation from the defendants. It has also been evident throughout the proceeding that the defendants sincerely desire to conform their facilities, operations, and procedures to constitutional standards.
After conferences with the Court on December 21, 1971, and July 20, 1972, the latter conference being combined with a visit by the Court to the challenged institution, the parties determined that the case could be submitted to the Court to be determined upon the pleadings, the on-site inspection, and stipulations filed by the parties.
By stipulation the parties have agreed to certain conditions of operation and maintenance of the facility that they believe will meet constitutional standards. The parties have also reduced, by stipulation, the remaining issues concerning the constitutionality of: (1) "working" misdemeanants; and (2) of accepting convicts from other governmental units (to be maintained and "worked" by the Mississippi County facility) to questions of law. Before dealing with these disputed questions, however, the Court must determine whether the conditions agreed to by the parties meet constitutional standards, it being remembered that this is a class action in which the interests of non-named members of the class must be carefully protected by the Court.
Penal Farm History, Facilities and Operation
The Mississippi County Penal Farm was created some forty years ago. For approximately 39 of those years it was operated as a farm with inmates performing *359 the necessary farm operations. The original barracks burned in 1960 and were reconstructed of reinforced concrete. They are now considered fireproof. Basically, the structure is in the shape of a cross with four wings directed toward the principal points on the compass. The east, south, and west wings are cell-block wings. Each of these wings is approximately 100 feet in length and about 30 feet wide. There are windows on each side of the long sides of the wings providing cross ventilation. The wings converge in a central lobby area. Eating, kitchen and office areas are located in the north wing. At the extreme north end of this wing is a smaller westward directed wing used for the housing of female inmates. Males are housed principally in the south and west wings without regard to race. Racial segregation at the institution was discontinued many years ago.
Each of the three main wings has shower facilities, two commodes, a lavatory, and urinals. The small wing has equivalent facilities. The building is heated by circulating hot water; three exhaust fans are used in conjunction with certain window arrangements during summer months to increase cross ventilation. The lobby area houses a "store" or supply center where inmates may obtain certain items of a sundry nature, including tobacco products and candy. Immediately north of the lobby area is the eating or dining quarters consisting of long wooden tables with benches where the inmates may be seated for their meals away from the cell blocks.
The east wing, which formerly housed "trusties", is used as an area where the inmates may visit their families or friends during certain hours. Visitors are permitted to enter the aisle along the north side of the east wing and inmates who have visitors are transferred from their regular cell block for the visitation period. Visitors and inmates are permitted to communicate freely; a wire mesh screen is in place along the cell bars to prevent the passing of articles to the inmates.
For many years inmates worked in what is commonly known as the "long line" in row crop operations on the county farm lands. The inmates engaged in the planting, cultivating, and harvesting of cotton, soybeans and other crops. Prior to the filing of this suit, a Quorum Court committee, appointed by defendant County Judge A. A. "Shug" Banks, recommended the discontinuance of farming operations with the use of convict or inmate labor, and the County Court has followed this recommendation. Inmates are now used only on county maintenance crews. While working on projects such as bridge repair or ditch cleaning, the inmates are under the supervision of employees of the County Road Department, who in effect act as guards on the job sites.
As of the time of the filing of this suit, there was no established policy regarding discipline within the institution. In the basement of the barracks building is a solitary confinement cell. However, its use was discontinued prior to the institution of this action. Corporal punishment has not been officially sanctioned during the administration of the present County Judge.
If corporal punishment has been administered, it has been directly contrary to the instructions and orders of the County Judge. Guards and other farm personnel have been instructed for many years that firearms are not to be used except for the purpose of self-defense. Indeed, policy forbids the firing upon even escaping inmates. The escape rate for the farm is probably higher than that of felony institutions. However, a high escape rate is one of the problems inherent in the maintenance of a misdemeanor institution.
The farm receives inmates from several courts in Mississippi County, including the Circuit Courts for the Osceola and Chickasawba Districts of the County, Municipal Courts at Osceola and Blytheville, and, infrequently, Mayor's or City Courts within the County. The farm, however, does not indiscriminately accept inmates, even if committed by a *360 Mississippi County Court. Since 1971 the farm administration has followed the recommendation of the Quorum Court committee and refused to accept as inmates persons under eighteen years of age.
The Mississippi County Penal Farm serves not only Mississippi County but also numerous counties and communities throughout the state. Originally misdemeanants were sent to the institution to "work out" their fines and the cost of their prosecution. Mississippi County reimbursed the committing governmental unit. Over a period of time beginning in 1961, the practice of reimbursement has been discontinued. As presently operated neither party to the commitment contract assumes any financial obligations to the other. Mississippi County has the facilities to house and work misdemeanants; the other committing counties and cities do not. The contracting governmental units derive the benefit of having local offenders incarcerated for their offenses and Mississippi County provides the means and facilities for doing so.
There are presently employed at the farm seven "free world" employees. The staff is now considered adequate; hence, the use of trusties in any capacity has been discontinued and defendants have agreed that the practice will not be reinstated.
Since the pendency of this case population and operations of the facilities have been curtailed significantly by the defendants.[2] Indeed, the Court is not so much considering the adequacy of an ongoing penal farm, as the constitutionality of numerous proposals to be implemented in a reactivated penal facility.
Constitutionality of Agreed Practices and Conditions
In the initial stipulation filed in this action the parties stated:
"It is the desire of all parties hereto that the Mississippi County Penal Farm . . . be operated within minimum Federal Constitutional Requirements with due regard to the care and treatment of inmates confined therein by County officers and employees who may operate and control such facility and with commitment (sic) duty on the part of inmates to observe all reasonable work and disciplinary requirements of the supervising and custodial officers and employees within the framework of Federal Constitutional Requirements.
"The parties hereto stipulate and agree that the defendants have taken certain corrective measures in good faith to improve conditions at the Penal Farm and that prior to the institution of this action, certain corrective steps were already underway . . ..
"Plaintiffs and defendants are in accord that further improvements in the operation of the Penal Farm are to be undertaken if said Penal Farm is to be operated fully and in compliance with minimum Federal Constitutional Provisions."
Specific provisions of the stipulation require defendants to submit an application to the Law Enforcement Administration of the United States Department of Justice for planning funds for the Mississippi County correctional facilities and to explore methods and means of securing funds from other federal and state sources to improve the facility.
Pending the achievement of the above-stated goals, the defendants have *361 agreed to operate the present facilities under the following restrictions:[3]
(a) Defendants will limit the institution's inmate population to forty except under temporary emergency conditions.
(b) No female child under the age of 18 and no male child under the age of 17 shall be accepted or confined at the Penal Farm under any circumstances.
(c) Male inmates and female inmates will not be kept in the same enclosure at the county farm. They will be kept separate and apart as has been the practice.
(d) Every effort will be made to improve sanitation at the county farm and to keep all facilities as sanitary as possible. The County Health Officer will be directed to make monthly inspections of the penal farm and to submit a written report to the County Court as to the compliance with this stipulation. Deficiencies noted in this report will be remedied and the County Court will be so notified in writing.[4] Extermination programs undertaken by commercial establishments as well as by inmates will be continued to eliminate from the premises harmful insects and rodents.
(e) Defendants will supply to the inmates changes of clothing satisfactory for the climate and maintain laundry facilities adequate to keep inmate clothing in a hygienic state.
(f) Defendants will provide three well-balanced and nutritious meals per day when the inmates are employed at labor and two such meals per day when inmates are not so employed. Defendants will not limit any inmate to a bread and water or other substandard diet for any reason.
(g) Defendants will institute and maintain a reasonable classification system to separate prisoners in the following manner:
1. Prisoners with histories relating to the excessive use or misuse of alcoholic beverages will be kept separate and apart from other inmates for such periods of time as deemed proper.
2. No classification or distinction among inmates will be made according to race, color or national origin.
3. Any inmate whose conduct or actions appear to supervisory personnel to be detrimental to or to affect the health, safety or well-being of other inmates may be kept separate and apart from other inmates and such separation shall carry no presumption of punishment but may be exercised for the proper control, health, safety and well-being of inmates.
4. Any prisoner with a contagious disease will be separated from other inmates as soon as such condition is determined pending medical treatment.
*362 (h) All inmates will receive prompt medical attention administered in a reasonable manner under reasonable conditions.[5]
(i) Defendants will provide adequate and hygienic bed clothing and provide sufficient soaps and cleaning materials to allow inmates to keep their bodies and environment in a clean and hygienic state.
(j) Reasonable supplies of writing materials for inmates will be made available.
(k) Defendants will not engage in any unreasonable practices concerning mail censorship.
1. Mail incoming from or outgoing to any court of record, state or federal, will not be opened.
2. Mail that indicates on the envelope that it comes from or is directed to any attorney will be considered to be privileged and remain unopened.
(l) Defendants will allow reasonable rights of visitation to inmates.
(m) Defendants will deliver weekly to the office of the Mississippi County Clerk at the Mississippi County Courthouse in Osceola, Arkansas, and make available therein as a matter of public information a list of all inmates who have been received by the Mississippi County Penal Farm within the immediately preceding week, together with appropriate information as to the committing court, the offense or offenses for which the inmate was convicted, the report of judgment as to fine, costs and imprisonment sentence, if any, and the age, sex and race or color of each defendant as provided to the County Farm Superintendent.
(n) The news media will not be barred from the institution. Due to the nature of the institution, however, officials may institute reasonable controls regarding visitation by newsmen and other persons.
(o) Religious services are and will be held each week at the penal farm. Attendance will be voluntary. Religious freedom is and will be encouraged at the institution and no inmate's freedom to worship in the religion of his choice will be hampered or interfered with by the institution.
(p) Guards and custodial personnel at the County Penal Farm will be required to undergo training or educational courses as approved by the Arkansas State Police or other appropriate agencies. Temporary or interim exceptions will be made pending full training and/or under emergency conditions.
(q) Disciplinary rules, a copy of which has been filed with the Court, will be distributed to each inmate as he arrives at the institution. The rules contain a statement of potential offenses and potential penalties and an outline of procedures to be followed by institution officials before disciplinary measures are taken. Those procedures include notice to the offending inmate of the nature of the charge lodged against him, an opportunity for the inmate to appear before an impartial panel to tell his version of the facts out of which the charge arises and to question witnesses before the panel. The final decision of the panel and the basis therefor will *363 be reduced to writing for the inmate's inspection.[6]
In reviewing the stipulations of the parties regarding current practices and future undertakings, the Court is guided by the analysis of Chief Judge Henley in the several opinions written concerning conditions and practices in the Arkansas state correctional facilities at Tucker and at Cummins.[7] In that series of opinions particular conditions and practices were found to be constitutionally repugnant: corporal punishment, Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968); confinement of inmates in isolation cells that are overcrowded and unsanitary, Holt v. Sarver, 300 F.Supp. 825 (E.D.Ark.1969); failure to use ordinary care to protect the lives of inmates, Id.; the delegation of substantial portions of institution management to "trusties", Holt v. Sarver, 300 F.Supp. 362 (E.D.Ark.1970), aff'd., 442 F.2d 304 (8th Cir. 1971); and the segregation of inmates within the institution according to race, Id. Concerning Eighth Amendment abridgments Judge Henley has stated:
"It appears to the Court, however, that the concept of `cruel and unusual punishment' is not limited to instances in which a particular inmate is subjected to a punishment directed at him as an individual. In the Court's estimation confinement itself within a given institution may amount to a cruel and unusual punishment prohibited by the Constitution where the confinement is characterized by conditions and practices so bad as to be shocking to the conscience of reasonable civilized people even though a particular inmate may never personally be subject to any disciplinary action."
Holt v. Sarver, 309 F.Supp. at 372-373. Extrapolating from the particular practices previously found to be unconstitutional and applying the general standards regarding cruel and unusual punishment, the Court must conclude that the operation and maintenance of the Mississippi County Penal Farm in good faith compliance with the agreement referred to above will meet constitutional standards.
Intergovernmental Custody Contracts and Compulsory Labor
The remaining questions to be resolved by the Court are: (1) Whether the "working" of misdemeanants without compensation on public projects is contrary to constitutional principles, and (2) whether the contracting between government units to incarcerate and work convicts from foreign political subdivisions (within the State of Arkansas but outside of Mississippi County) as provided by Section 46-504 of Ark.Stat. Ann. (1947) offends the Constitution.
Plaintiffs maintain that a person convicted of a misdemeanor cannot be compelled to work, but must be given a choice. In addition, contend plaintiffs, if an inmate chooses to perform work for the county, he must be compensated at the rate of the prevailing minimum wage. Otherwise, argue plaintiffs, incarceration in the county penal farm would run afoul of constitutional proscriptions of involuntary servitude and cruel and unusual punishment. As a corollary to these contentions, plaintiffs pray that Section 46-504 be declared unconstitutional because, they contend, it *364 allows one political subdivision to contract with another to "work" misdemeanants. Defendants respond by asserting that the working of misdemeanants without compensation is constitutional and that the contracting between political units under Section 46-504 is permissible.
The simple "working" of inmates on county work crews as a part of their sentence should be distinguished from the working of inmates to pay fines and costs. Defendants concede that former practice was to use inmate labor to "work off" fines and costs chargeable to the misdemeanant. Contracts with other political subdivisions were also on this basis. Defendants have stipulated to the unconstitutionality of these past practices under Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), and presently refuse to accept misdemeanants, whether committed locally or by a foreign political subdivision, who are to be incarcerated solely for failure to pay fines or costs.
The "working" of inmates committed to a term of incarceration independent of any abridgment of the principle stated in Tate v. Short, however, is a distinct question. The Thirteenth Amendment to the Constitution provides: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction". [Emphasis added]. Courts have long held that reasonable work requirements may be imposed on one convicted of a crime, whether misdemeanor or felony, without running afoul of the Thirteenth or Eighth Amendments. See, e. g., Butler v. Perry, 240 U.S. 328, 36 S.Ct. 258, 60 L.Ed. 672 (1916); Draper v. Rhay, 315 F.2d 193 (9th Cir.), cert. denied, 375 U.S. 915, 84 S.Ct. 214, 11 L.Ed.2d 153 (1963); Holt v. Sarver, 309 F.Supp. at 369-372; Wilson v. Kelly, 294 F.Supp. 1005, 1012 (N. D.Ga.1968). In the present case, where work is conducted in a reasonable manner under public authority,[8] the Court finds no constitutional deprivation. Furthermore, no court has imposed the requirement that, as a condition precedent to the imposition of a compulsory work program, a state must agree to compensate inmates. Indeed, the Eighth Circuit has expressly stated that any scheme or program of prisoner compensation exists only by the grace of the state. Sigler v. Lowrie, 404 F.2d 659, 661 (8th Cir. 1969).
In a letter supplementary to their trial brief, plaintiffs raise a second argument concerning the unconstitutionality of the working of inmates. Relying on Ward v. Village of Monroe, 409 U.S. 57, 93 S.Ct. 80, 34 L.Ed.2d 267 (1972), and Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927), plaintiffs argue that the working of inmates for profit by the county presents an unconstitutional conflict of interest *365 apparently because the chief executive officer of the county, with wide-ranging administrative responsibilities, is also charged with administration of the county penal farm. The Court believes Ward and Tumey do not reach so far as plaintiffs contend. Those cases were bottomed on denials of procedural due process. The judicial official's financial interest in the outcome abridged petitioner's right to a hearing before an impartial hearing officer. Here the County "Judge", for all pertinent purposes, is an administrative, not a judicial, officer and has no say in the conviction and sentencing process.
Plaintiffs also challenge, independent of the compulsory labor issue, the practice of receiving under custodial contracts persons sentenced by foreign political units. Within this challenge falls Section 46-504.[9] Plaintiffs argue that the true purpose of Section 46-504 "is not only to provide a place for counties with inadequate facilities, to incarcerate their county and city prisoners, but also that the convicting county or city shall be assured of payment of its fines and costs."
Plaintiffs' Trial Brief at 16.
Hence the apparent basis for plaintiffs' challenge to the statute is that Tate v. Short abridgments are produced by the scheme. The Court understands how this was a possibility under past practice, but fails to appreciate the constitutional ramifications of the contractual scheme in the light of defendants' undertaking to accept only those misdemeanants sentenced to terms of incarceration.
The Court notes that modern theories of allocation of resources for penal institutions contemplate the possible creation of regional centers for misdemeanant incarceration.[10] The questioned statute provides one means for implementing the contemplated reform and, properly followed, raises no serious constitutional problems.
A decree will this day be entered in accordance with this memorandum opinion.
FINAL DECREE
In conformity with the Court's findings of fact and conclusions of law set forth in the Memorandum Opinion filed this day, it is hereby ordered, adjudged and decreed that:
1. Plaintiffs' prayer for declaratory and injunctive relief is denied;
2. Plaintiffs' claims challenging the constitutionality of Arkansas Statutes Annotated § 46-502 et seq. (1947) are dismissed with prejudice;
3. Plaintiffs be awarded their costs.
NOTES
[1] In the initial suit, Howerton v. Mississippi County, J-71-C-54 (E.D.Ark., filed Sept. 29, 1971), plaintiffs are next friends of James Arthur Howerton and the administrator of the estate of Nathan Smith, Jr. Neither of the real parties of interest were incarcerated in the penal farm at the time suit was filed. George Hoover, Jr., plaintiff in Hoover v. Mississippi County, J-71-C-71 (E.D.Ark., filed Nov. 12, 1971), was an inmate at the time the suit was filed; hence, his standing was sufficient after consolidation to support the class action that is stated in each complaint.
[2] Prior to, and immediately following, the filing of these suits defendants made significant voluntary changes in the operation of the penal farm. Although self-initiated good faith efforts on the part of defendants have mooted many of the allegations in the original pleadings, the marked improvement in the operation of facilities and the stipulations as to future use and future practice were brought about, at least in part, by the efforts of plaintiffs and their attorneys. Therefore, the Final Decree entered pursuant to this Memorandum Opinion will award to plaintiffs their costs arising from this litigation.
[3] The restrictions, policies, and undertakings which follow are abstracts and summaries from the stipulations between the parties entered into on December 6, 1971, December 21, 1971, and May 4, 1972. The parties have also from time to time supplemented their stipulations by letter to the Court and by verbal statements, in conference with the Court and opposing counsel. The enumeration of the restrictions and undertakings is not intended to suggest that each is, or that all are, necessary to establish the constitutionality of the facility or its operation. They simply reflect the voluntary agreements of the parties.
[4] In this regard the Court must note that the toilet facilities, including lavatories, showers and commodes, at the institution, at the time of the Court's visual inspection on July 20, 1972, were generally unclean and appeared unsanitary. The Court understands the stipulation to require defendants to work with health authorities to maintain the farm's toilet facilities in a reasonable state of cleanliness and repair.
[5] The Court must remark that present medical facilities at the institution are probably inadequate for the custody of the chronically or seriously ill.
[6] The methods by which inmates are and will be disciplined is not disclosed by the stipulations. The Court must assume defendants propose to employ standard methods such as denial of privileges and, in extreme and legally appropriate circumstances, isolation. Defendants did point out to the Court at the inspection tour of the facility a structure, then under construction, that would serve as a disciplinary cell. At that time the Court questioned the adequacy of the lighting and ventilation in the structure. It now assumes those defects have been remedied.
[7] We are not here applying the more stringent requirements applicable to the conditions of pre-trial incarceration. See Hamilton v. Love, 328 F.Supp. 1182 (E. D.Ark.1971).
[8] Arkansas law limits the type of enterprise in which convict labor may be employed:
"Any person who may be convicted of a misdemeanor or petty offense by any court in this State, and who shall be committed to jail to serve a sentence imposed by any court of competent jurisdiction . . . may be required to discharge such sentence . . . by manual labor in any workhouse, farm, street, road, bridge, or other public work . . . provided that such workhouse, farm, road, street, bridge, or other public work shall be owned, operated, or conducted by the State of Arkansas, any county thereof, or a city or incorporated town within the State of Arkansas."
Ark.Stat.Ann. § 46-502 (1947).
Early in the course of this litigation defendants maintained that inmates of the penal farm could be employed in quasi-public projects such as improvement districts. Although the Court has grave reservations about the practice, not only under the terms of the quoted statute but also under constitutional principle, it does not have to face the issue since counsel for defendant stated to the Court in conference with counsel for the plaintiffs on July 20, 1972, that defendants would confine convict work assignments to public projects.
[9] Although plaintiffs level an unequivocal challenge to the constitutionality of a state statute and request injunctive relief, neither party has requested a three-judge court under 28 U.S.C. § 2281 (1970). The Court determined early in the proceeding that it was not required to impanel a three-judge court under the teaching of Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152 (1933), that in a case where the challenge to the statute is insubstantial a single judge court may dismiss the contention for want of a substantial federal question.
[10] See Omnibus Crime Control Act of 1970 § 6(a), 42 U.S.C. § 3750b(6) (1970). One purpose of the Act is to establish a new program for the construction, acquisition, and renovation of correctional facilities and programs. Provisions of the Act set out criteria by which state applications for grants under the Act are to be evaluated. Concerning the above-cited subsection the Senate Report on the Act states:
"Subsection (6) requires the State plan to provide, where feasible and desirable, for the sharing of correctional institutions and facilities on a regional basis. . . . It would not be feasible, nor can the Nation afford, to replace all of the existing unsatisfactory jails with correctional centers. In most States, it is possible for several counties, or for combinations of counties and cities, to use a central facility. This provision is intended to encourage such regionalized arrangements where possible."
S.Rep.No.91-1253, 91st Cong., 2d Sess., 1970 U.S.Code Cong. & Admin.News 5804, 5829. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597614/ | 3 So.3d 319 (2009)
BOSBY
v.
STATE.
No. 1D08-5010.
District Court of Appeal of Florida, First District.
February 10, 2009.
Decision without published opinion. Belated App. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587260/ | 25 P.3d 60 (2001)
96 Hawai`i 1
CHILD SUPPORT ENFORCEMENT AGENCY, State of Hawai`i, Respondent/Petitioner-Appellee,
v.
Jane ROE, Petitioner/Respondent-Appellant. and
John Doe, Defendant.
No. 22278.
Supreme Court of Hawai`i.
June 5, 2001.
*62 Marrionnette L.S. Andrews, for petitioner/respondent-appellant Jane Roe, on the writ.
MOON, C.J., LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.
Amended Opinion of the Court by ACOBA, J.
We granted the application for a writ of certiorari of Petitioner/Respondent-Appellant Jane Roe (Mother)[1] on February 26, 2001, to review the January 23, 2001 memorandum opinion by the Intermediate Court of Appeals (the ICA), Child Support Enforcement Agency v. Roe, No. 22278, 95 Hawai`i 244, 20 P.3d 677 (Haw.Ct.App. Jan. 23, 2001) (mem.) [hereinafter "the ICA's opinion"], which affirmed the November 27, 1998 decision and order of the family court of the first circuit (the court) and its January 25, 1999 order denying Mother's motion for reconsideration.[2]
We reverse the ICA's opinion in part as to its affirmance of: (1) the court's findings regarding Mother's past child care expenses, past child support obligation of Defendant John Doe (Father), and Father's ownership of certain real property; (2) the court's failure to address the question of sanctions against Father for his failure to obey a court order requiring him to provide information concerning his real estate holdings; and (3) the court's denial of Mother's motion for reconsideration. We affirm the ICA's opinion in part as to its conclusion that no further hearing was necessary for one of Father's properties.
We vacate the aforesaid decision and orders of the court as to the amount of past and current child support obligations of Father, the amount of his debt to the State of Hawai`i Department of Human Services (DHS), and the income to be imputed from his ownership of certain real property. We remand those issues and instruct on remand that the court also address the question of sanctions. In all other respects, we affirm the November 27, 1998 decision and order.
I.
Child was born to Mother and Father on June 22, 1993. Mother filed a petition for paternity against Father on February 11, 1994 in FC-P No. 94-0161. The petition prayed for adjudication of paternity, custody, past and present child support in the amount of $220 per month, and medical insurance coverage for Child. Father, in his March 17, 1994 answer, agreed that he was Child's father. Accordingly, Child's paternity was undisputed.
On April 8, 1994, a pretrial/trial hearing was held in FC-P No. 94-0161. At the hearing, Mother's counsel stated that Father had agreed "to put [Child] on his health and dental insurance" and to pay child support according to the Child Support Guidelines (CSG),[3] but counsel would "re-calculate the *63 figures . . . contained in [the] petition . . . [because Mother made] more money." The court confirmed the agreement with Father. It noted that Father was "paying child support already." Father also agreed to the award of Child's legal and physical custody to Mother and to visitation schedules described by Mother's counsel. Accordingly, custody and visitation were undisputed.
At the end of the hearing, Mother's counsel indicated that he would prepare a written judgment within ten days, pursuant to the agreement. Although the proceedings were transcribed, Mother's counsel failed to prepare a judgment and the court never entered a judgment in FC-P No. 94-0161. There is no evidence in the record that a recalculation was performed according to the CSG. Nonetheless, Mother apparently retained custody of Child and according to Mother, Father paid $200 per month beginning in January or February 1994, $375 per month starting in January or February 1995, $434.50 in June or July 1997, and $250 for the following month.[4] Father then discontinued making payments to Mother.
When asked whether he recalled how the amount of child support was determined, Father responded, "I think [Mother]'s attorney told me to pay her two hundred dollars a month so we agreed to that." Asked whether he knew "if the child support family formula was used to make up the recommended amount[,]" Father testified, "I don't think it was. [Mother's counsel] just told me to paypay [Mother] two hundred dollars a month." Nothing in the record indicates that Mother otherwise attempted to enforce Father's child support payments.
II.
A.
On February 6, 1998, Respondent/Petitioner Appellee Child Support Enforcement Agency of the State of Hawai`i (CSEA) filed a petition for paternity under HRS chapters 584[5] and 576D[6] against Mother and Father in FC-P No. 98-0121. In the petition, CSEA requested in pertinent part that the court (1) establish paternity, (2) grant custody to Mother and reasonable visitation rights to Father, and (3) order Father (a) to pay expenses of Mother's pregnancy and Child's birth, (b) to provide medical insurance coverage for Child, (c) to pay child support from the time of birth or the filing of CSEA's petition, whichever was deemed appropriate, until Child reached eighteen years of age, and (d) to reimburse DHS for welfare assistance provided to Mother.
The court held a hearing on CSEA's petition on February 27, 1998. At the hearing, Father acknowledged, as he had before, that he was Child's father. Father also testified that he worked at a sundries business owned by his parents, lived with his girlfriend in a *64 house owned by his parents on property located in Hau`ula at 54-060 Kamehameha Highway (the Hau`ula property),[7] and paid $250 per month in rent. According to Father, the house had been previously rented at $1,000 per month for three months. Based on this information, the court determined that the fair market rent for the house should be at least $600 a month and imputed $350 per month to Father as additional income.
When CSEA asked Father if he owned any properties, he replied that he did not, but that he was on the titles to some of his parents' properties. Father declared that he would have to ask his parents about the number of such properties.
Mother, a college student at the time, testified that she had been paying $350 per month for child care expenses, but that the amount would increase to $425 per month on the Monday after the hearing. CSEA requested the court to calculate child support payments based on the CSG[8] and the information given by Mother and Father, and to hold a further hearing to verify Father's financial information.
The court ordered Father to pay $650 per month in child support beginning April 1, 1998 and to secure medical insurance for Child. The court noted that the child support ordered was modifiable and reserved the issue of past child support pending further financial information to be provided by Father.
CSEA requested both Mother and Father to provide financial information:
[CSEA's COUNSEL]: . . . [B]y May 21[, 1998,] both parties supply to [CSEA] an asset and debt statement. . . .
. . . .
That father provide to us all-we ask for taxes, going back to date of birth of [Child] and . . . a listing of properties, . . . the location of the properties as well as who else is on the title and the way the title is held.
THE COURT: Very well.
So, [Father], what you need to do is your parents need to pull out their deeds. If you're not on, you're not on. You're on, how are you on?
[CSEA's COUNSEL]: We would like this going back to 1997, [Y]our Honor.
THE COURT: Sure.
[CSEA's COUNSEL]: We would like to see if they have made any past changes.
THE COURT: And anyany property that you [may] be on[,] you may be contingently named, but you don't own anything until they die.
If it is then you justjust tell us how you hold the property.
[FATHER]: Can I just tell them to take my name off all the property that I'm on?
THE COURT: They can always do that. Your parents can do whatever they want.
[CSEA's COUNSEL]: But if (indiscernible, [CSEA's counsel] runs words together) . . . .
THE COURT: But if you're on they want to know if you're on now.
(Emphases added.)
As to Father's visitation rights, Mother stated that she preferred the schedule recommended by an expert[9] over a "Type A" schedule.[10] Father agreed. This schedule differed from what was agreed to in FC-P. No. 94-0161.
*65 B.
Before the end of the hearing, CSEA explained to the court that Mother and Father had been involved in the paternity suit previously filed by Mother in FC-P No. 94-0161 and that the parties were "in agreement that FC-P No. 94-0161 can be dismissed." The court responded, "We'll dismiss it and put everything in this case. Rather than have two cases we'll just have one case." (Emphasis added.) The court filed an order of dismissal without prejudice of FC-P No. 94-0161 on March 4, 1998, stating that the "action is dismissed without prejudice because[ ] a paternity action was commenced in FC-P No. 98-0121 involving the same parties and subject and child."
On March 4, 1998, the court also filed a judgment with respect to the February 27, 1998 hearing, which in pertinent part temporarily ordered Father to pay $650 per month for child support and reserved the issue of past child support. In the judgment, the court reiterated the obligation to provide financial information:
X . . . . Mother and Father shall submit the following:
X Income and Expense [and] Asset and Debt Statements by May 21, 1998.
. . . .
X Further Orders: Father shall provide by May 21, 1998 the following: (1) list of all propert[ies] that Father's name appears on the title. The list shall include the present value of the propert[ies], the location of the propert[ies], number of people on the title[s,] and how title[s are] held. The list shall include all propert[ies] held in the years 1993, 1996-1998 [and] (2) tax returns filed since 1993.
(Emphases added.) We note that the value of Father's properties may have been relevant under the CSG, which provided that "[w]here a parent has inadequate income to meet his/her support obligation but owns assets, he/she may be required to convert all or some portion of said assets to cash for payment of support." 1994 Guidelines, General Provisions Regarding Income (citing Cleveland v. Cleveland, 1 Haw.App. 187, 616 P.2d 1014 (1980)).
III.
On April 22, 1998, Father filed a motion and affidavit for relief after order or decree, requesting the court to modify the March 4, 1998 judgment by granting Father Type A visitation and by reducing his monthly child support payments from $650 to $300. Father also filed an income and expense statement and an asset and debt statement. The latter indicated that Father owned the following real properties:
6. Real Property
Date of
Address Fee or Lease Title (H,[11] W, J) Acquisition
Kaa[a]wa[12] Fee H
Hauula Fee H & Parents 1990
Current
Cost Gross Value Total Debt Owed
? ?
? -0-
The court ordered the parties to appear on May 28, 1998 for Father's motion for relief.
As ordered, Father's counsel turned over Father's tax returns to CSEA and Mother, but only immediately before the hearing started on May 28, 1998. At the hearing, Father's counsel related that Father held a one-fifth interest in the Ka`a`awa property and an undivided one-third interest in the Hau`ula property. However, Mother's counsel disputed this statement, noting that her title search revealed Father owned a one-half *66 share in the Hau`ula property. CSEA complained that the deadline for providing financial documents was May 21, 1998, that until the hearing it had received "nothing," that Father's conduct led "to the impression that. . . he will only . . . admit to what properties we can find[,]" and that the parties were "not getting this information ahead of time as ordered by the [c]ourt." The court responded that because "the statement by [F]ather [was] under oath[,] . . . he's held to it subject to contempt or perjury that he owns nothing else."
Mother's counsel then informed the court that a cursory title search had revealed that on May 5, 1998, Father transferred property located in Kalihi to his brother. This property had not been listed on Father's asset and debt statement. Father's counsel stated that "[he]'d be happy to respond." The court moved on to the visitation issue without allowing Father's counsel to explain.
After discussing the visitation issue, the court set the trial for August 24, 1998. Father's counsel noted that he wanted to avoid a trial and that he would explain the question of the Kalihi property "very quickly," but the court responded that "for you to convince me to limine that issue may be a bit unfair at this point."
Mother's counsel also advised that "because [Father]'s making us do all this extra work, [Y]our Honor, I'm gonna propose that they pay my attorney's fees[.]" The court did not respond to this statement, but stated, "`Cause this Kalihi property, [Mother's counsel] brought that stuff out. That looks pretty rotten. I'm sure [Father's counsel] has a good explanation for it. And if it is, then we need to hear it."
CSEA requested an absolute deadline for Father to submit his real property information "subject to fees and costs." The court agreed and set the deadline for the exchange of documents for July 2, 1998.
As to Father's visitation rights, the court noted its inclination to order the Type A schedule to Father eventually and reserved that matter for the August 24, 1998 hearing.
On June 2, 1998, the court filed an order relating to visitation and the trial date. The court ordered, inter alia, that "Father shall provide the property list as ordered by the judgment filed March 4, 1998. The list shall be turned over to the other parties by July 2, 1998." (Emphases added.)
In response to the June 2, 1998 order, Father apparently submitted an updated list which stated as follows:
Real Properties Held By [Father]
1. 322 Kalihi St., Honolulu, Hawai`i
A) Acquired: 11/5/97
B) Current value: to be provided
C) Names on title: [Father's brother]
D) Title held: Tenant in Severalty
2. 54-060 Kam Hwy., Hauula, Hawai`i
A) Acquired: 10/11/90
B) Current value: $565,300
C) Names on title: [Father's father]
[Father's mother]
[Father]
D) Title held: Tenants in Common
3. 51-580 Kam Hwy., Kaaawa, Hawai`i
A) Acquired: 8/22/97
B) Current value: $15,300
C) Names on title: [Father and 5 others]
D) Title held: Tenants in Common
IV.
At the August 24, 1998 trial, CSEA explained to the court that "[FC-P No. 94-0161] was dismissed because CSEA filed its petition therefore, we had two petitions concurrently appearing. Therefore, it was agreed by the parties that for simplicity sake that basically the '94 case would be dismissed because the CSEA case would then cover all issues."[13]
Mother testified that she was unemployed, being a full-time student. Mother's Exhibit No. 18 indicated that for child care expenses, *67 she had paid $4,158 in 1995, $4,654 in 1996, $4,158 in 1997, and $3,025 for eight months in 1998. Mother declared that Child would be enrolled at a community day care center beginning September 1998. A pamphlet for after-school services at the center quoted a monthly fee of $66. Mother reported that she began to receive $650 per month in July 1998 from "CSEA."
Father testified that he was listed as an owner of the Hau`ula property, no one paid rent on the store located there, and, thus, he did not receive any income from the property.
As to the Ka`a`awa property located at 51-580 Kamahameha Highway, Father reported that he was one of the owners, that the "front" house was rented for $1,000 per month, and that if he receives "a check for nine hundred dollars from the realtors[,] . . . the realtor[s] take[ ] ten percent[, a]nd [he] write[s] a check back to [his] dad for a thousand dollars." Father did not explain why he wrote a check to his father for $1,000 instead of $900.
Mother's counsel asked Father if there was another piece of real property in Ka`a`awa "located at 51-594 Kamehameha Highway." This question was based on an August 25, 1997 promissory note in which Father had agreed to pay his parents $159,000 "upon the sale by [Father] . . . of [his] 1/5th interest in that [property]." Father responded, "I don't know. Maybe there was a type [sic] error. I'm not sure."
As to the Kalihi property, Father testified that he did not believe he had ever owned that property. Although his name was on the title for two months, he related that he did not pay anything for it.
Because the court had another trial scheduled, it ordered all parties to submit written closing arguments by September 16, 1998. As to visitation rights, the court ordered that effective November 1, 1998, Father would have visitation rights based on the Type A schedule and, until then, Father's visitation was set for certain hours on every other Sunday.
On September 15, 1998, CSEA and Father filed their closing arguments. In its closing argument, CSEA contended that Father owed DHS $7,106[14] in past child support[15] but did not take any position on Father's past child support owing to Mother. CSEA also related that "[b]ecause paternity and child support issues were not fully resolved, FC-P No. 98-0121 was filed on 02/06/98 which incorporated FC-P No. 94-0161."
Father argued, inter alia, that CSEA's request for reimbursement to DHS should be denied because DHS's public assistance was paid both to Child and Mother but CSEA could not establish how much was paid for Child.
In her September 16, 1998 closing argument, Mother requested that the court (1) enter a temporary judgment against Father in the amount of $32,440 for his past child support obligation from June 22, 1993 to August 1998[16] (the amount due after credit for Father's and DHS's payments) and in the amount of $690 per month in child support beginning September 1, 1998, (2) order a further hearing for determination of Father's real estate interests and income, and (3) *68 award attorney's fees and costs resulting from Father's failure to submit documents ordered by the court.
V.
On November 27, 1998, the court issued a written decision and order. That decision and order ruled in pertinent part that: (1) Father owed Mother $16,783 in past child support from Child's birth to August 1997 and from June 1998 to August 1998, attributing $66 as Child's monthly expenses from 1995 to August 1998; (2) additional income to Father for the Ka`a`awa property be imputed at $180 per month rather than the $900 monthly rent received;[17] (3) Father reimburse "CSEA"[18] $5,763 for past child support from September 1997 to July 1998;[19] and (4) Father pay $655 per month in child support until Child reached the age of eighteen or graduated from high school. The decision and order did not address the possible existence of property located at 51-594 Kamehameha Highway and Mother's request for an award of attorney's fees and costs.
Mother filed a motion for reconsideration of the October 29, 1998 minute order on November 18, 1998, urging the court to consider actual child care expenses in determining past child support and to ascertain Father's interests in the Hau`ula, Kalihi, and Ka`a`awa properties and the possible property at 51-594 Kamehameha Highway. Mother also reiterated her demand for attorney's fees and costs, for the first time referring to Hawai`i Family Court Rules (HFCR) Rules 34 and 37. Father did not file a motion for reconsideration.
VI.
On December 18, 1998, Father filed a notice of appeal which was dismissed as premature. On January 25, 1999, the court denied Mother's November 18, 1998 motion for reconsideration. On February 11, 1999, Mother filed a notice of appeal. On April 1, 1999, Father filed a second notice of appeal, which was subsequently dismissed as untimely.
VII.
Mother raised the following points on appeal: (1) the court erred in finding that Mother had paid $66 per month for child care expenses in 1995,[20] 1996, 1997, and the first eight months of 1998, rather than the actual child care expenses she incurred; (2) the court erred in finding that Father received $180 instead of $900 per month as rental income from the Ka`a`awa property; (3) the court erred in failing to use Mother's actual child care expenses and Father's actual rental income in determining past and present child support; (4) the court abused its discretion in failing to determine Father's interests in the Hau`ula, Ka`a`awa, and Kalihi properties and the possible property at 51-594 Kamehameha Highway; (5) the court abused its discretion in failing to decide the question of sanctions; and (6) the court abused its discretion in denying her motion for reconsideration.
In its answering brief, CSEA asked that the November 27, 1998 decision and order as to Child's paternity and child support Father owed to DHS be affirmed. CSEA did not take any position on custody, visitation, and any debt owing between Mother and Father.[21]*69 CSEA agreed with Mother that the Ka`a`awa $900 per month rent should be included as part of Father's income[22] and Father's present child support obligation adjusted accordingly.
VIII.
In its memorandum opinion, the ICA concluded that: (1) the court's $66 findings regarding Mother's child care expenses were erroneous, but correcting the error "would add to Mother's windfall," ICA's opinion at 33, in light of Father's past support payments and what it viewed as the court's unauthorized award of past child support, see id. at 29-33; (2) the finding establishing Father's portion of the Ka`a`awa rental income at $180 per month was not clearly erroneous because it was proportional to Father's one-fifth ownership in the property, see ICA's opinion at 34; (3) a future hearing to determine Father's property interests and corresponding child support adjustment was not necessary because the parties had had three separate hearings in which to do so, see ICA's opinion at 35; (4) Mother's sanction request need not be considered because (a) Mother never filed a written motion therefor, see ICA's opinion at 36; (b) the time allowed for trial ran out, see id.; and (c) Father did submit a list of his real properties, see ICA's opinion at 37; and (5) based on the foregoing, the court properly denied Mother's motion for reconsideration. See id.
IX.
In her application, Mother contends that (1) the ICA erred in sustaining the court's $66 figure to calculate past child support; (2) a further hearing is necessary because Father did not fully inform Mother and CSEA as to his actual real estate interests; and (3) the record warrants sanctions against Father and his counsel.
X.
As Mother points out, a judgment was never entered in FC-P No. 94-0161. The record indicates that Mother's counsel represented to the court that he would prepare a judgment but never did so. HFCR Rule 58(a) provided that the trial court "may" direct any party, through his or her attorney, to prepare an appropriate decree or order in accordance with the decision and that the decree or order be "submit[ted] . . . to the court for its approval."[23] The present version of HFCR Rule 58(a) mandates the prevailing party, unless otherwise ordered by the court, to prepare an order or judgment in accordance with the courts' decision.[24] Paternity, *70 custody, visitation rights, and medical insurance coverage had been agreed to on April 4, 1994 in FC-P No. 94-0161, and the parties had apparently adhered to some aspects of that agreement. The failure in 1994 to timely enter a judgment suspended the legal determination of paternity of Child and related matters for nearly four years. Moreover, claims already agreed to in 1994 were required to be relitigated in 1998.[25] Since a trial court ultimately signs the judgment, it is responsible for ensuring that its orders and judgments are entered. To protect the rights of the parties appearing before it and to prevent gaps in the record, trial courts should monitor orders and judgments which become outstanding because of counsel's failure to prepare them.
Of course, the trial courts may impose appropriate sanctions on counsel for having failed to prepare orders or judgments as directed by the court or as required. See State v. Gonsales, 91 Hawai`i 446, 449-50, 984 P.2d 1272, 1275-76 (App.1999) (per curiam) (holding that where counsel fails to comply with a court's directive to prepare written findings and conclusions as agreed to, appropriate sanctions should be imposed). Subsection (b) of HFCR Rule 89, adopted for "expedition of court business[,]" would authorize such sanctions and provides that "[a]n attorney who, without good cause, fails to submit documents in a timely manner in accordance with these rules, or who fails to adhere to these rules or applicable statutes, may be subject to such sanction as the court deems appropriate."
XI.
We believe the ICA erred in the instances discussed infra in applying the standards of review that follow. "The trial court's findings of fact are reviewed under the clearly erroneous standard[.]" Gump v. Wal-Mart Stores, Inc., 93 Hawai`i 417, 420, 5 P.3d 407, 410 (2000) (citing Brown v. Thompson, 91 Hawai`i 1, 8, 979 P.2d 586, 593, cert. denied, 528 U.S. 1010, 120 S. Ct. 511, 145 L. Ed. 2d 395 (1999)). "A [finding of fact] . . . is clearly erroneous when (1) the record lacks substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made." In re Water Use Permit Applications, 94 Hawai`i 97, 119, 9 P.3d 409, 431 (2000) (citing Leslie v. Estate of Tavares, 91 Hawai`i 394, 399, 984 P.2d 1220, 1225 (1999)). "`[S]ubstantial evidence' [is] credible evidence which is of sufficient quality and probative value to enable a person of reasonable caution to support a conclusion." Id. (internal quotation marks and citations omitted). "[A] trial court's conclusions of law [are reviewed] de novo, under the right/wrong standard of review." State v. Ah Loo, 94 Hawai`i 207, 209, 10 P.3d 728, 730 (2000) (citing Leslie, 91 Hawai`i at 399, 984 P.2d at 1225 (citations omitted)).
XII.
Preliminarily, we note that at the August 24, 1998 hearing, Father argued that Mother should not be entitled to past child support in FC-P No. 98-0121, because CSEA, and not she, had initiated the petition. CSEA's petition in FC-P No. 98-0121 did request child support from Child's birth. The court pointed out that Father failed to object to this claim prior to the trial. We conclude that Father had ample notice from CSEA's petition that Child's support "from [Child's] birth" was an issue in the case and *71 thus he was not prejudiced.[26]See In re Doe, 91 Hawai`i 166, 178, 981 P.2d 723, 735 (App. 1999) (rejecting a father's contention that neither harm nor threatened harm to a child was properly alleged in a child protective proceeding inasmuch as father failed to point to any prejudice to him and had ample notice of the purported harm to the child).
XIII.
In rejecting Mother's actual-child-care-expenses contention, the ICA posited that if Mother's counsel had prepared an order or judgment in FC-P No. 94-0161 and "Father's $200 monthly child support obligation had been established by court order, HRS § 576E-14 [(Supp.2000)] would have prohibited [a] retroactive modification of Father's obligation." ICA's opinion at 32-33. The ICA relied on the following language in HRS § 576E-14(b): "Only payments accruing subsequent to service of the request on all parties may be modified, and only upon a showing of a substantial and material change of circumstances." We must agree with Mother that HRS § 576E-14 is inapplicable.
HRS chapter 576E establishes an administrative adjudicative process for child support enforcement. See Hse. Stand. Comm. Rep. No. 227-88, in 1988 House Journal, at 931 (stating that HRS chapter 576E was enacted "to add a new chapter to [HRS] to provide for an administrative process"); Sen. Stand.Comm.Rep. No. 2553, in 1988 Senate Journal, at 1080 (stating that the "process [would] . . . relieve the Family court of a substantial portion of its child support workload"). HRS § 576E-3 (Supp.2000) gives "the attorney general, through the [CSEA], concurrent jurisdiction with the court" to enforce child support obligations. Administrative hearings in contested cases are conducted before hearing officers in accordance with HRS chapter 576E, and when otherwise applicable, HRS chapter 91. See HRS § 576E-9 (Supp.2000). Hearing officers have the authority to enter various orders concerning child support enforcement, see HRS § 576E-10 (Supp.2000), and such orders must be filed with the clerks of the circuit court. See HRS § 576E-12 (Supp. 2000). A party aggrieved by a final administrative decision and order "is entitled to judicial review under chapter 91" and can appeal to the family court. HRS § 576E-9.
HRS § 576E-14 provides for "[m]odification, suspension, or termination of court and administrative orders." HRS § 576E-14(a) allows "[t]he responsible parent, [CSEA], or the person having custody of the dependent child" to file "a request for suspension, termination, or modification of the child support provisions of a Hawaii court or administrative order with [CSEA]." (Emphasis added.) HRS § 576E-14(b) indicates that modification of court and administrative orders pertains "[o]nly [to] payments accruing subsequent to service of the request" referred to in subsection (a) and "only upon a showing of a substantial and material change of circumstances." Thus, HRS § 576E-14(b) does not apply to this case because (1) no request for modification of an existing order was filed with the CSEA and (2) any request would have had to have been with respect to a pre-existing court or agency order, neither of which existed in this case.
XIV.
Also, according to the ICA, because Father's appeals were dismissed, *72 Mother's child support award should remain undisturbed.
Since Mother was awarded a retroactive increase in child support[ ] [by the court]. . . and Father's appeals from the family court's Decision and Order were previously dismissed by the Hawai`i Supreme Court as untimely, Mother, in essence, will enjoy a windfall as to the amount of past child support payments that Father is obligated to pay her.
ICA's opinion at 33 (emphases added). The fact that Father's appeals were dismissed did not ipso facto render the court's decision a "windfall" to Mother. An appellant must still "overcome [a] presumption of correctness" that attaches to a lower court's appealed position. Costa v. Sunn, 5 Haw.App. 419, 430, 697 P.2d 43, 51, cert. denied, 67 Haw. 685, 744 P.2d 781 (1985). Hence, the lack of an opposing brief does not necessarily mean the appellant will prevail because, ordinarily, the appellant would still have "the burden of showing that the [court's] findings of fact are clearly erroneous or the conclusions of law are incorrect" in the decision appealed. Hawkins v. Peterson, 474 N.W.2d 90, 92 (S.D.1991). No "windfall" can be derived from the absence of Father's opposition on appeal; the court's decision must still be reviewed for correctness as to its findings and conclusions.
XV.
The record indicates that Mother paid for child care expenses of much more than the $66 per month[27] from 1995 to August 1998 found by the court.[28] The findings as to these expenses then were clearly erroneous. We observe that monthly child care expense is a component in the CSG calculation of child support. See 1994 Guidelines. A change in the child care expense figure will affect the total monthly child support obligation. See id. On remand, the court must determine Mother's actual monthly child care expense for the subject period, recalculate the child support obligation, and deduct payments Father had made from that amount.
XVI.
As to a further hearing on Father's real estate interests, Mother does not specifically dispute the court's findings with regard to the Hau`ula and Kalihi properties. Thus, the findings with respect to the Hau`ula property were not clearly erroneous and a further hearing as to that property is unnecessary. However, the court imputed additional income for every month for the Kalihi property, despite the fact that Father's ownership interest terminated after four months. While imputation for some period of time would appear reasonable in light of the court's finding that Father's transfer was "suspect," it may be unreasonable to require it for an indefinite period of time. In any event, Father should be allowed to present evidence on this issue at the hearings on remand.
As to Mother's contention that Father's imputed income from the Ka`a`awa property should have been $900 per month instead of $180 per month, we conclude that a further hearing is necessary. The fact that Father wrote a monthly check for $1,000 to his father after receiving the Ka`a`awa rental income of $900 is inherently inexplicable. A further hearing is necessary to establish more facts to support that amount or, if the facts warrant, to revise it.
Similarly, the court also should have determined whether property allegedly located at 51-594 Kamehameha Highway was in fact additional property owned by Father. Father could not explain the discrepancy between the two Ka`a`awa addresses. The court may have relied on Father's testimony that "51-594" was a typographical error, but it made no finding to that effect. On the other hand, the August 25, 1997 promissory note in evidence refers unambiguously to *73 property at "51-594 Kamehameha Highway, Kaa[a]wa, Hawaii[.]" (Emphasis added.)
The resolution of the three foregoing questions may impact Father's past and present child support obligations. The court's order to reimburse DHS was also based on the amount of child support owed by Father. On remand Father's child support obligation may change. If that occurs, the court must decide whether Father's reimbursement to DHS is to be adjusted in light of any change in his child support obligation. See HRS § 346-37.1(b) (Supp.2000).[29]
XVII.
In her motion for reconsideration and opening brief, Mother contends that Father failed to comply with HFCR Rule 34 and thus should be sanctioned under HFCR Rule 37(a)(3) and (4). But HFCR Rule 34 concerns, inter alia, a request for production of documents. HFCR Rule 37(a)(3) and (4), which governs a motion for compelling discovery, is not applicable because Mother never served a request for documents on Father or moved to compel discovery.
However, nothing in the language of HFCR Rule 37(b) precludes the court itself from sanctioning Father. HFCR Rule 37(b)(2) provides in pertinent part that
[i]f a party . . . fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
. . . .
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising that party or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(Emphasis added.) Because HFCR Rule 37(b) refers to "an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35" (emphasis added), the violation of a discovery order not issued pursuant to HFCR Rule 37(a) can be a basis for HFCR Rule 37(b) sanctions. Thus, HFCR Rule 37(b)(2) gives family courts discretion to sanction a party "fail[ing] to obey an order to provide or permit discovery." Of course, Mother herself could have filed a written motion seeking assessment of sanctions under HFCR Rule 37(b)(2), and generally a party seeking such sanctions should do so.[30]
Hawai`i Rules of Civil Procedure (HRCP) Rule 37(b) is identical to HFCR Rule 37(b). As a result, we may construe HFCR Rule 37 in a manner similar to our interpretation of HRCP Rule 37(b). See Criss v. Kunisada, 89 Hawai`i 17, 23, 968 P.2d 184, 190 (App. 1998) (applying interpretations of HRCP Rule 68 to HFCR Rule 68 on the basis that the two rules are similar). "Insofar as HRCP Rule 37(b) provides for sanctions for failure `to obey an order to provide or prevent discovery,' the provision is inapplicable. . . where no such order was ever entered." Fujimoto v. Au, 95 Hawai`i 116, 165, 19 P.3d *74 699, 748, reconsideration denied, 95 Hawai`i 116, 19 P.3d 699 (2001) (citations omitted). In other words, "sanctions under [HRCP] Rule 37(b) do not apply unless a prior court order for discovery has been violated." Stender v. Vincent, 92 Hawai`i 355, 362 n. 6, 992 P.2d 50, 57 n. 6 (2000) (citing Glover v. Grace Pac. Corp., 86 Hawai`i 154, 163, 948 P.2d 575, 584 (App.1997) (holding that "to justify sanctions under HRCP Rule 37(b), there generally must be a violation of a prior court order") (citations omitted)), and Richardson v. Sport Shinko (Waikiki Corp.), 76 Hawai`i 494, 507, 880 P.2d 169, 182 (1994)). In Richardson, this court indicated that imposition of discovery sanctions were not warranted in the absence of a formal written discovery request and even if such a request had been made, the plaintiffs should have moved to compel compliance with that request, or shown that such a motion would have been futile. See id.
However, in an expansion on the Richardson holding, this court has recently held that "when a court unequivocally and prospectively notifies a party of a discovery requirement that the court expects that party to obey, the notification may, under appropriate circumstances, be treated as the functional equivalent of an order compelling discovery, even if the court has not expressly designated it as such." Fujimoto, 95 Hawai`i at 166, 19 P.3d at 749. Here, there was a violation of a prior court order that was the functional equivalent of an order compelling discovery.
In the March 4, 1998 judgment, the court ordered Father to provide a "list of all propert[ies and, with respect thereto,] . . . the present value . . . , the location . . . , [the] number of people on the title and how title is held . . . [for] the years 1993, 1996-1998." As stated supra, despite the order, Father's April 22, 1998 asset and debt statement listed the Ka`a`awa property and the Hau`ula property, but did not contain the value of those properties, and did not list the Kalihi property even though Father owned it before the May 5, 1998 transfer.[31] The record suggests that Father's ownership of the Kalihi property may not have been disclosed if Mother's counsel had not informed the court of Father's transfer of the Kalihi property.
On June 2, 1998, the court again ordered Father in writing to "provide the property list as ordered in the judgment filed March 4, 1998 . . . by July 31, 1998." Father finally complied with the June 2, 1998 order, submitting a revised statement concerning the properties. See supra at 7, 25 P.3d at 66. Based on the foregoing, we conclude that Father failed to comply with the court's order contained in the March 4, 1998 judgment and that Father's failure to comply potentially subjected him to sanctions under HFCR Rule 37(b)(2). See Fujimoto, supra.
Mother orally raised the matter of sanctions at trial, in her written closing argument, and in her written motion for reconsideration. If the court had determined not to impose sanctions, it should have explained in its decision and order why such an award would be unjust.[32] Therefore, we instruct on remand that the court consider Mother's request for attorney's fees and costs.
XVIII.
As to DHS's award, Father asserted in his closing argument that public assistance was paid to both Mother and Child, and Child's portion of such benefits was not established. CSEA maintained that DHS provided AFDC benefits and food stamps to Mother for Child's benefit. In its November 27, 1998 decision and order, the court found that "Mother received cash welfare (AFDC), food stamps, and medical insurance on [Child]'s behalf for the period September 9, 1997 through May 31, 1998" (emphasis added) and that "[d]uring that period, a total of $4,725.00 in AFDC benefits and $2,831.00 in *75 food stamps were paid to Mother for the benefit of [Child]." (Emphasis added.) Since Mother would not have received such public assistance if not for Child, see HRS § 346-37.1(a) (Supp.2000),[33] the court's findings do not appear to be clearly erroneous.
XIX.
Based on the foregoing discussion, we affirm the ICA's opinion in part as to its conclusion on the Hau`ula property, but reverse as to (1) Mother's past child care expenses, (2) Father's past child support, (3) Father's ownership of the Kalihi and Ka`a`awa properties and possible property at 51-594 Kamehameha Highway, and (4) the question of sanctions against Father. Based on the foregoing, the ICA's opinion regarding Mother's motion for reconsideration must also be reversed. We vacate the court's (1) November 27, 1998 decision as to (a) the amount of Father's past and current child support obligations, (b) the amount of his debt to DHS, and (c) the income to be imputed from the ownership of the aforementioned properties, and (2) January 25, 1999 order denying reconsideration. We remand the case for disposition consistent with this opinion.
NOTES
[1] For the purpose of preserving confidentiality, Petitioner/Respondent-Appellant Jane Roe is referred to as "Mother," the subject child is referred to as "Child" and Defendant John Doe is referred to as "Father."
[2] Family court judge Darryl Y.C. Choy was the presiding judge on pretrial matters, per diem family court judge Loralyn Cramer presided over the trial, and circuit court judge Daniel T. Kochi decided the motion for reconsideration.
[3] "Hawai`i law invests the family court with authority to establish child support guidelines" under Hawai`i Revised Statutes (HRS) § 576D-7(a) (Supp.2000). Child Support Enforcement Agency v. Doe, 92 Hawai`i 276, 279-80, 990 P.2d 1158, 1161-62 (App.1999). HRS § 571-52.5 (1993) provides that "[w]hen the court establishes or modifies the amount of child support required to be paid by a parent, the court shall use the guidelines established under section 576D 7, except when exceptional circumstances warrant departure." The CSG in effect were the March 15, 1991 guidelines. The 1991 guidelines were later amended on November 1, 1994 and on November 1, 1998. See id. at 281, 990 P.2d at 1163.
[4] The changes in monthly child support payment apparently reflect Father's payment for one-half of Child's pre-school tuition from January or February 1995 to June or July 1997.
[5] HRS chapter 584 is entitled "Uniform Parentage Act." HRS § 584-6 (1993) provides in pertinent part as follows:
Determination of father and child relationship; who may bring action; when action may be brought; process, warrant, bond, etc. (a). . . [T]he child support enforcement agency[ ] may bring an action for the purpose of declaring the existence or nonexistence of the father and child relationship within the following time periods:
. . . .
(2) If the child has not become the subject of an adoption proceeding, within three years after the child reaches the age of majority . . . .
. . . .
(b) When an action is brought under this section, process shall issue in the form of a summons and an order directed to the alleged or presumed father, the mother[,] or both, requiring each to appear and to show cause why the action should not be brought.
[6] HRS chapter 576D is entitled "Child Support Enforcement."
[7] The Hau`ula property consists of four lots: the lot with the sundries store, the lot with the house Father lived in, the lot with a "broken down house which nobody occupies," and the lot with a storage shack.
[8] The CSG in effect were the November 1, 1994 guidelines. The 1994 guidelines were amended on November 1, 1998, which became effective on January 1, 1999. See Doe, 92 Hawai`i at 281, 990 P.2d at 1163.
[9] Under the schedule recommended by the expert, Father would be entitled to visitation on the second and fourth Sundays of each month from 10 am to 2 pm.
[10] The Type A schedule, which is used in "cases where parents' skills and circumstances are nearly equal," provides that a child will spend alternate weekends with each parent.
[11] "H" refers to Father.
[12] While some of Father's documents state "Kaawa," the correct spelling of that word is "Ka`a`awa."
[13] Mother's counsel stated that "[FC-P No. 94-0161] was dismissed the last time and so it had to be refiled." This statement is inaccurate because CSEA filed FC-P No. 98-0121 on February 6, 1998 before the court "dismissed" FC-P No. 94-0161 on March 4, 1998.
[14] The amount stated as owing to DHS was not consistent.
[15] The total owed to DHS consisted of $4,275 in Aid to Families with Dependent Children (AFDC) benefits and $2,831 in food stamps, which DHS provided Child from September 9, 1997 to May 31, 1998.
AFDC is a program "established by Title IV of the Social Security Act, 42 U.S.C. §§ 601-613, and designed to provide financial assistance to needy dependent children and the parents or relatives who live with and care for them[.] . . . It is financed in large measure by the [f]ederal [g]overnment on a matching-fund basis[.]" Cudal v. Sunn, 69 Haw. 336, 340, 742 P.2d 352, 355 (1987) (internal quotation marks and citations omitted).
[16] For past child support, Mother requested $540 per month in 1993, $520 per month in 1994, $700 per month in 1995, $680 per month in 1996, $700 per month for the first five months in 1997 and $750 for June 1997, $960 per month for the last six months of 1997, and $1,050 per month for the first eight months in 1998. From the total amount allegedly owed, Mother deducted Father's child support payments of $2,400 per year for 1994, 1995, and 1996, $1,450 for 1997, and $3,555 per year CSEA paid for 1997 and 1998.
[17] In Finding No. 12, the court imputed an additional $1,300 as Father's income. While the court does not specifically indicate so, we assume that this imputed income is for the Hau`ula and Kalihi properties.
[18] While the court and the parties at times referred to "CSEA," the amount due was owed to DHS.
[19] The court used Father's monthly child support obligation for that period to calculate the amount Father owed DHS for reimbursement.
[20] Mother contends that the court erred in finding that she paid a total of $66 for child care expenses in 1995. While the court's Finding No. 19 states that "Mother paid $66.00 in child care expenses for [Child] in the year 1995[,]" Finding No. 22 states that "Mother's child care expenses remained at $66.00 per month for the year 1996." (Emphasis added). Furthermore, the numbers for child support obligations for 1995 suggest that the court calculated child support based on child care expenses of $66 per month. While the court could have been more accurate in describing its finding, the record suggests that the court found Mother paid $66 per month instead of a total of $66 for child care expenses in 1995.
[21] While CSEA requested a deadline for Father's submission of his real property information "subject to fees and costs[,]" it did not request attorney's fees and costs in closing argument or on appeal.
[22] CSEA admits that it had argued for $180 per month at the trial.
[23] HFCR Rule 58(a) (1982) provided as follows:
PREPARATION AND SIGNING OF DECREES AND ORDERS. (a) Preparation of Decree and Order. Upon the entry or announcement of a decision of the court in any contested matter, the court may direct any party through his [or her] attorney to prepare an appropriate decree or order in accordance with the decision. In the event one party so directed fails to prepare such a decree or order and present the same to an opposing party or parties . . . if he[, she,] or they are not represented by an attorney for approval as to form within 10 days, any other party through his [or her] attorney may prepare such decree or order and submit the same to all other parties for approval as to form. Upon approving the decree or order as to form, the attorney for the party or the party approving the same shall forthwith submit the decree or order to the court for its approval.
. . .
(Emphases added.)
[24] HFCR Rule 58 (2000) provides as follows:
(a) Preparations of Judgments and Other Orders. Within 10 days after entry or announcement of the decision of the court, the prevailing party, unless otherwise ordered by the court, shall prepare a judgment or order in accordance with the decision and secure thereon the approval as to form of the opposing counsel or party (if pro se) and deliver to the court the original and necessary copies, or if not so approved, serve a copy thereof upon each party who has appeared in the action and deliver the original and copies to the court. Any party objecting to a proposed judgment or order shall, within 5 days after receipt, serve upon all parties and deliver to the court that party's proposed judgment or order, and in such event, the court shall proceed to settle the judgment or order.
(Emphases added.)
[25] None of the parties moved for entry of a judgment nunc pro tunc in FC-P No. 94-0161.
"The Latin Phrase, `nunc pro tunc' is merely descriptive of the inherent power of a court to make its records speak the truth, i.e., to record that which . . . actually [occurred]," but was erroneously omitted or recorded. Simmons v. Atlantic Coast Line RR Co., 235 F. Supp. 325, 330 (E.D.S.C.1964). Hawai`i courts have the inherent power to amend [their] records to correspond to the actual facts, i.e., correct a clerical error. See e.g., City and County of Honolulu v. Caetano, 30 Haw. 1 (1927); Wong v. Wong, 79 Hawai`i 26, 29, 897 P.2d 953, 956 (1995).
Korsak v. Hawai`i Permanente Medical Group, 94 Hawai`i 297, 304 n. 5, 12 P.3d 1238, 1245 n. 5 (2000).
[26] We note that in his September 15, 1998 closing argument, Father also contended as follows:
[Father]'s position would . . . be that [Mother] is not entitled to child support contributions up to the time of filing of this [p]etition in 1998 by reason of laches and the reluctance of the [f]amily [c]ourt to award back child support if the party had not helped themselves [sic] by coming to court and taking matters to a completion of litigation.
In its November 27, 1998 decision and order, the court "ordered," following its findings, that "[u]pon all the foregoing circumstances, Father may not rely on the defense of laches." However, the court did not designate which findings it relied on and they are not evident to us. We observe, however, that Father adduced no evidence as to laches in his examination of Mother. Father did not elaborate on these contentions any further and did not, as previously noted, file a motion for reconsideration of the court's decision and order. Neither Mother nor CSEA raised this issue on appeal and the ICA did not discuss this issue in its opinion. Under the circumstances, there is no basis to discuss it further.
[27] The record suggests that the court mistakenly applied child care expenses beginning in September 1998, i.e., $66 per month, to child care expenses incurred prior to that date.
[28] Mother's contention for recalculation based on actual child care expenses has no effect on past child support from Child's birth to December 1994 because Child began preschool in January 1995.
[29] HRS § 346-37.1(b) provides as follows:
(b) If there is no existing court order, the debt [owed to DHS] may be established by agreement ofthe parties or by order of the family court wherein the following criteria shall be considered:
(1) All earnings, income, and resources of the absent parent or parents including real or personal property;
(2) The earnings potential, reasonable necessities, and borrowing ability of the absent parent or parents;
(3) The needs of the child for whom the support is sought;
(4) The amount of assistance which would be paid to the child under the full standard of need as established by the department; and
(5) The existence of other dependents.
These criteria shall be applied so as to ensure, at a minimum, that the child for whom support is sought benefits from the income and resources of the absent parent or parents on an equitable basis in comparison with any other minor child of the absent parent.
(Emphases added.)
[30] In concluding that the court did not need to address the sanction issue, the ICA relied on the fact that "Mother never filed a written motion requesting sanctions against Father." ICA's opinion at 35.
[31] Contrary to the ICA's reference to Father's submission of a list, the list was incomplete. As pointed out by Mother, if the April 22, 1998 asset and debt statement had constituted compliance with the March 4, 1998 judgment, the court would not have ordered Father to provide the list on June 2, 1998.
[32] We note that the ICA sustained the court's failure to rule on the sanction request because the court had another trial scheduled and thus "`time had run out[.]'" ICA's opinion at 35. This cannot be a basis for denying or ignoring a request for sanctions.
[33] HRS § 346-37.1(a) provides in pertinent part as follows:
Payment of public assistance for child constitutes debt to department by natural or adoptive parents. (a) Any payment of public assistance money made to or for the benefit of any dependent child or children creates a debt due and owing to [DHS] by the natural or adoptive parent or parents who are responsible for support of such children in an amount equal to the amount of public assistance money so paid or as established pursuant to subsection (b) . . . .
(Emphasis added.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597637/ | 158 N.W.2d 717 (1968)
STATE of Iowa, Appellee,
v.
Vicki Ann MYERS, Appellant.
No. 52980.
Supreme Court of Iowa.
May 7, 1968.
*718 I. Joel Pasternak, Des Moines, for appellant.
Richard C. Turner, Atty. Gen., William A. Claerhout, Asst. Atty. Gen., and Ray A. Fenton, County Atty., of Des Moines, for appellee.
LARSON, Justice.
The defendant, Vicki Ann Myers, was charged with the crime of robbery with aggravation contrary to sections 711.1 and *719 711.2 of the 1966 Code of Iowa, by aiding and abetting Lloyd Richards in the robbery of James O. Martindale, attendant at the Erickson Holiday Service Station in Des Moines, Polk County, Iowa, the said Richards being armed with a dangerous weapon, with intent, if resisted, to kill or maim Martindale.
Pursuant to a plea of not guilty, trial was had before a jury, which returned a verdict of guilty, and when her motion for a new trial was overruled, judgment was entered committing her to the Women's Reformatory for a period of twenty-five years. She appeals. We affirm.
Appellant asserts the sole question raised on this appeal is the sufficiency of the evidence to warrant submission of the case to the jury or to support a guilty conviction. She lists as error the trial court's refusal to grant her motion for a directed verdict and her motion for a new trial, and lists seven brief points or propositions upon which she relies for reversal. Generally, we agree with these propositions, but disagree with her application of them to the facts disclosed by the evidence herein.
I. In considering the sufficiency of the evidence, we accept the version most favorable to the State. State v. Allnutt, Iowa, 156 N.W.2d 266, 267, and citations; State v. Allnutt, Iowa, 158 N.W.2d 715, decided May 7, 1968. We then turn to the evidence of the State as disclosed by the record.
James O. Martindale was on duty as a service station attendant at Second and Washington Avenues in Des Moines at about 4:45 A.M. on October 1, 1967, when one Lloyd Richards came into the station and asked to use the telephone. When the cash register was opened, Martindale said, Richards pulled out a hammer, threatened him with it, and robbed him of $113 or $114 in currency, but took no change. Richards then ran eastward down Washington Avenue out of sight, and Martindale called the police. This service station is about four blocks north of University Avenue, and at that time Martindale observed no vehicles in the area.
Officer Bruce A. Klingaman, of the Des Moines Police Department, testified he was on patrol near Second Avenue and Keo when he received a radio report of the robbery. He drove north on Second Avenue and, as he crested the hill beyond the Des Moines Freeway, he observed a white over black station wagon coming off Ohio Street southbound with its lights out. It made a left turn east onto University and turned on its lights. As he pursued this vehicle, Officer Klingaman advised the dispatcher he would make an attempt to stop it. Without losing sight of it, he saw it turn south on Pennsylvania Avenue, and he then turned on his red stop light. He could see that the driver was a female and the passenger in the seat beside her was a male. He saw the latter duck down in a forward motion before the car was brought to a full stop. The officer said he approached the vehicle on the driver's side, but before he reached the door the defendant driver got out of the car and started to walk toward him. In response to his request for her driver's license, she asked him, "What are you stopping me for?" In response to his question of where she came from, she told him she had just come from the City Drug Store and, prior to that, had been to a party at 10th and Center Streets.
The officer then directed his attention to the passenger. As he approached that door he pulled out his gun and demanded that the man get out. As he was getting out, the officer noticed a piece of brown cloth sticking out under the car seat. The passenger was then searched and placed under arrest. At that time other officers arrived to assist him, and the passenger, identified as Lloyd Richards, was advised of his constitutional rights and placed in a police car.
The officers then turned their attention to Miss Myers, the operator of the station wagon, and after she was advised of her *720 rights she was asked if she would allow them to "look through her vehicle." She declined and was told a search warrant would be obtained, and she was placed in another police car. Officer Klingaman and Sergeant Harlan then looked through the windshield of the station wagon Miss Myers had been driving and could see a shirt and a handle on the car floor sticking out from under the front seat. Miss Myers was again asked if they could look "through her car" and she again refused.
The vehicle was then impounded and taken to the police garage. After obtaining a search warrant and searching the vehicle, Officer Klingaman testified he found a brown sport shirt with tan and black imitation suede stripes on the front, a claw hammer with a brown handle and a black metal head, both under the front seat on the passenger's side. Under the floor mat on the passenger's side he also found $113.00 in bills. These items were properly preserved and marked for evidence.
The radio description of the robber received by the officer stated he was a C.M. A. (apparently a colored male adult) in his late twenties wearing a brown sport shirt. It also appeared the officer was present when the station attendant later identified the hammer and the brown shirt or jacket as those possessed by the robber at the time of the robbery.
Two other police officers, who responded to Officer Klingaman's request for help testified for the State. They stated defendant was advised of her constitutional rights, that she refused to tell them anything except that she had been to a boot-legger's on 10th Street. One of them also looked into the car Miss Myers had been driving and saw what appeared to be a brown cloth and a hammer handle sticking out from under the seat.
Pursuant to an application by defendant, Lloyd Richards, an inmate of the State Penitentiary at Fort Madison, was brought to Des Moines for this trial but did not testify. However, it was stipulated by defendant's counsel that Richards had been indicted for the crime of robbery with aggravation of this service station and that he entered a plea of guilty to that charge and was sentenced to a term of years in the penitentiary at Fort Madison, Iowa. Both parties then rested.
Defendant filed a motion for a directed verdict on the grounds that the State failed to prove that the defendant did aid or abet Lloyd Richards in the commission of the crime of robbery with aggravation, under our recent decision in State v. Daves, 259 Iowa 584, 144 N.W.2d 879, that it failed to prove defendant assented to the act or approved of the robbery, that it failed to show by circumstantial or direct evidence that she had knowledge that Richards was going to commit the crime of robbery with aggravation, and that there was no evidence which would raise a fair inference of guilt. It was overruled. Defendant introduced no evidence and the cause was submitted to the jury on or about December 15, 1967.
II. Certain applicable general propositions are well established in this jurisdiction. To aid and abet means to assent to an act or to lend countenance or approval either by active participation in it or by some other manner encouraging it. State v. Daves, supra, 259 Iowa 584, 144 N.W.2d 879, 881; State v. Fonza, 254 Iowa 630, 118 N.W.2d 548; State v. Smith, 248 Iowa 603, 608, 81 N.W.2d 657, 660. The guilt of a person charged with aiding and abetting must be determined upon the facts which show his part in the crime. State v. Daves, supra, and citations.
Knowledge or intent is an essential element in aiding and abetting. State v. Daves, supra; State v. Kneedy, 232 Iowa 21, 28, 3 N.W.2d 611, 615; State v. McCarty, 210 Iowa 173, 177, 230 N.W. 379, 381. This is seldom capable of direct proof, but we have often held it may be inferred from the proven surrounding circumstances. State v. Kneedy, supra; *721 State v. Van, 232 Iowa 34, 2 N.W.2d 748, and citations; State v. Miller, 259 Iowa 188, 142 N.W.2d 394.
Participation in criminal intent may be inferred from one's presence in and near the scene of the crime, and his conduct before or after the offense is committed. State v. Myers, 253 Iowa 271, 111 N.W.2d 660; State v. Miller, supra; 22 C.J. S. Criminal Law §§ 87, 88; 21 Am.Jur.2d, Criminal Law, §§ 122, 123; Wharton's Criminal Law, Vol. 1, 12th Ed., §§ 246, 256, 258.
Any evidence, circumstantial or direct, must be sufficient to raise a fair inference of guilt and, of course, must generate something more than suspicion or speculation. State v. Myers, supra; State v. Daves, supra. Where evidence of guilt is wholly circumstantial, it must be inconsistent with any other reasonable hypothesis of innocence. State v. Miller, supra; State v. Daves, supra; State v. Sigman, 220 Iowa 146, 149, 261 N.W. 538, 539.
III. Appellant correctly contends that under this charge the State was required to establish that the defendant either directly committed the act constituting robbery with aggravation or that she knowingly aided and abetted the commission of the act. State v. Daves, supra, 259 Iowa 584, 144 N.W.2d 879; State v. Mabbitt, 257 Iowa 1063, 135 N.W.2d 525; State v. Myers, supra, 253 Iowa 271, 111 N.W.2d 660; State v. Kneedy, supra, 232 Iowa 21, 3 N.W.2d 611. Since there was no claim defendant committed the act of robbery, that act being done by Lloyd Richards, the question before us is whether there was substantial evidence to support a finding that she aided and abetted Richards in the commission of the crime. Apparently, we have not passed upon the sufficiency of a combination of circumstances such as are presented by this appeal. However, the elements involved have received exhaustive consideration in the above-mentioned cases and need no further discussion herein.
IV. There is little dispute in the material facts, although appellant contends the State failed to adequately establish the time of this alleged crime. She relies upon a claimed variance revealed by the testimony of Officer Klingaman and the station attendant, James Martindale. The former stated the radio report of the robbery was made at approximately 4:34 A.M., and the latter said the robbery occurred "at about a quarter to five in the morning." It is true the State must establish beyond reasonable doubt the time and place of an alleged crime, but we do not find in this testimony any fatal defect in that proof. The actual time of this robbery was sufficiently established and the place clearly identified.
V. Appellant's principal contention is that the evidence produced surrounding her detention and apprehension was not sufficient circumstantial evidence to generate a jury question as to her participation, encouragement or countenance and approval of the crime of robbery with aggravation. She maintains it was not sufficient to prove the necessary element of knowledge. We cannot agree. Perhaps some of the circumstances revealed, standing alone, would not be sufficient, but when taken together, the following circumstances are sufficient, i. e., the officer's observation of her operation of an automobile without lights at that time, about seven blocks south and east of the station robbed, in which a person matching the description of the robber was a passenger, and the discovery of the fruits of the robbery, the instrumentalities used, and other physical evidence connected with the robbery, secreted under the floor mat and front seat of the vehicle operated and controlled by her.
This is not like the Daves case, strongly relied upon by appellant, for here it is defendant, not the robber, who was found in possession and control of the stolen money and the instrumentalities used in the robbery. The jury here could find that she knew of the commission of the crime and *722 was in the act of aiding the actual robber's effort to secrete the physical evidence and escape apprehension.
The judgment of the trial court must be affirmed.
Affirmed.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597641/ | 158 N.W.2d 863 (1968)
Frederick W. KINGDON, Petitioner and Appellant,
v.
Mathilda S. SYBRANT, Respondent and Appellant, and
Lotus Irene Korner, Contestant and Respondent.
Civ. No. 8459.
Supreme Court of North Dakota.
April 26, 1968.
*865 Johnson, Milloy & Eckert, Wahpeton, for appellants.
Lewis & Bullis, Wahpeton, for contestant and respondent.
PAULSON, Judge.
This case is before us on an appeal from the district court in a will contest action. The testator's will had been upheld in the county court of Richland County, North Dakota, and the contestant appealed to the district court. The appeal was tried before a jury, which found the will invalid because of a lack of testamentary capacity on the part of the deceased, Fred W. Kingdon. The proponents of the will are Frederick W. Kingdon and his sister Mathilda S. Sybrandt. The contestant is Lotus Irene Korner, the legal daughter of the decedent by his first wife. Following the verdict, the proponents moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, both of which motions were denied. It is from the denial of these motions that proponents appeal.
The testator had married his first wife, Jessie Corkill Kingdon, in 1893, and the contestant was born in 1896. The decedent was, at this time, operating several businesses in the town of Cullom, Illinois, including a hardware and an implement business. The decedent left Cullom and moved to North Dakota in 1922 and commenced the farming operations which were continued by him for the balance of his working years. On February 22, 1924, his first wife, Jessie Corkill Kingdon, secured a divorce from the decedent on the ground of desertion. The decedent married his second wife, Marie Reinhard Kingdon (the mother of the proponents), on July 9, 1924. The decedent continued to operate his business properties in Cullom until approximately 1946, and the contestant worked in her father's business in Cullom from 1919 to the early 1940's. The decedent's second wife, Marie, died on March 31, 1964, and the will in question was executed on April 1, 1964. By this will the contestant, Lotus Irene Korner, was left the sum of $1,000, and the balance of the estate was to be divided between the proponents of the will, *866 the two children born of decedent's marriage to Marie Reinhard Kingdon.
The decedent's attorney testified that the decedent had told him (the attorney) on at least two occasions that the contestant, Lotus Irene Korner, was not a child of his body. The decedent had further stated that, in fact, the contestant was the child of his first wife and Sig Boeman, a livery stable operator who had resided in Cullom, Illinois, at the time of the events in question. He further stated that in later years it was common talk that his wife and Sig Boeman were having an affair and he also stated that the doctor who had delivered the contestant had told the decedent that while contestant's mother was on the delivery table she had stated: "Sig, you shouldn't have done it." The decedent also made a statement to a Mr. Julius Larson to the effect that the contestant was not the daughter of his body. The contestant offered evidence through numerous deposition witnesses to the effect that there was no scandal in the community of Cullom concerning a relationship between Jessie Corkill Kingdon and Sig Boeman. The proponents' evidence of an opposite nature was ruled inadmissible by the trial court, with the exception that one witness, John A. Barner, was allowed to testify that Jessie Corkill Kingdon's reputation for morals in the community was not all that it should have been.
At the time these proceedings were commenced, the contestant was 70 years of age and had two grown children, who were self-supporting. The proponent Frederick W. Kingdon was 39 years old and had four children, aged 17, 15, 12, and 5. The proponent Mathilda S. Sybrant was 37 years old and had five sons, aged 14, 12, 9, 8, and 2.
The original answer of the contestant alleged that the will was invalid because the testator lacked mental capacity due to an insane delusion, and because the will was procured by undue influence. The undue-influence count was dismissed by the court and there was no cross-appeal from that dismissal; therefore, the question will not be considered by us. Auer v. Frank, 227 Cal. App. 2d 396, 38 Cal. Rptr. 684, 8 A.L.R. 3d 1108 (1964); Reuland v. Independent Dist. of White Lake, 64 S.D. 621, 269 N.W. 484 (1936); In re Congdon's Estate, 74 S.D. 306, 51 N.W.2d 877 (1952); 5 C.J.S. Appeal and Error § 1300, pp. 209-211. The dismissal of the claim of undue influence occurred during the trial. Because we grant a new trial for reasons hereinafter set forth and do not pass upon the correctness of the trial court's ruling, the new trial shall be held on all the issues, including the issue of undue influence.
Several of the principles which will be initially employed in the decision in this case will be set forth here. First, there is a presumption that a testator was sane at the time of the execution of his will, until the contrary appears by competent proof. Edwardson v. Gerwien, 41 N. D. 506, 171 N.W. 101 (1919); Stormon v. Weiss, 65 N.W.2d 475 (N.D.1954). Second, where one is contesting proof of a will on the basis that the testator was suffering from an insane delusion, it is not sufficient to introduce evidence which tends to prove that the testator was possessed of such a delusion, but there should be further proof by the contestant that such delusion has no foundation in fact or in probability, in order to show that the delusion is wholly a product of the imagination. Edwardson v. Gerwien, supra. Third, the question of whether a testator is laboring under an insane delusion which materially affects the will is generally a question of fact. Winn v. Dolezal, 355 P.2d 859 (Okla.1960); In re Felgar's Estate, 207 Okla. 310, 249 P.2d 455 (1952). Fourth, to defeat a will on the ground that the testator lacked testamentary capacity because of an insane delusion, it is not sufficient to establish that the testator was the victim of such a delusion but the evidence must go further and establish that the will itself was the product of that delusion, and that the testator devised his property in a way which, except for that delusion, he would not have done. In re Williams' Estate, 207 Okl. 209, 249 P. *867 2d 94 (1952); In re Wheeling's Estate, 198 Okla. 81, 175 P.2d 317 (1946); In re Mason's Estate, 185 Okla. 278, 91 P.2d 657 (1939).
We will first consider the proponents' appeal from the denial of the motion for judgment notwithstanding the verdict. Where such a motion has been denied, the evidence must be considered in a light most favorable to the party in whose favor the verdict was rendered [Bell v. Cardinal Drilling Company, 85 N.W.2d 246 (N.D.1957); Lund v. Knoff, 85 N.W.2d 676, 67 A.L.R. 2d 1110 (N.D.1957)], and such motion should not be granted unless the moving party was entitled to judgment as a matter of law. Chicago, M. St. P. & P. RR. Co. v. Johnston's Fuel Liners, Inc., 130 N.W.2d 154 (N.D.1964). On an appeal from a judgment notwithstanding the verdict, the only grounds which will be considered will be those which were assigned on the motion for a directed verdict. Hanson v. Fledderman, 111 N.W.2d 401 (N.D.1961).
We have carefully examined the evidence in this case, and the court's rulings pertinent to such motion for directed verdict, and have concluded that the proponents would not have been entitled to a directed verdict at the close of the trial. Therefore, the trial court did not err in denying proponents' motion for judgment notwithstanding the verdict.
A review of the transcript does not indicate that the court made any statement to the opposing counsel at the time of the delivery of the instructions wherein the court asked for exceptions to be noted and the period of time to be allowed counsel to note such exceptions, either by written objections or by inserting such objections in the record. The judgment roll discloses that the court submitted written instructions to counsel, since certain written objections were presented. However, the record does not disclose that the court required counsel to take exceptions pursuant to Rule 51(c), North Dakota Rules of Civil Procedure. Therefore, counsel did not waive rights to the taking of exceptions to the instructions, as set forth in Rule 51 (c), N.D.R.Civ.P.
We will next consider the contention that the trial court erred in not granting the proponents' motion for a new trial. For reasons which will be stated in the following paragraphs, we agree with this contention.
Portions of the trial court's instructions to the jury read:
"I further instruct you that there is a presumption of chastity as to every person, and that chastity must be overcome by believable evidence.
"I further instruct you that the law of the State of North Dakota provides that any child born in wedlock is legitimate, and that such a presumption must be overcome by believable evidence."
We conclude that both of these instructions, jointly and severally, were inherently prejudicial to the proponents' case, as the question of the fact of the chastity of Jessie Corkill Kingdon was not an issue in this case, nor was the actual fact of the legitimacy of Lotus Irene Korner an issue. The issues in this case were the beliefs of the decedent, Fred W. Kingdon, concerning the chastity of Jessie Corkill Kingdon and the legitimacy of Lotus Irene Korner. The instructions quoted place the burden upon the proponets of proving that, in fact, Jessie Corkill Kingdon was unfaithful, and, therefore, that Lotus Irene Korner was illegitimate. Such burden the proponents should not bear and are not required to bear. It is no part of the proponents' defense of the will that either chastity or legitimacy did not exist as a matter of fact. The above instructions cannot help but put the proponents in the position of having to overcome the presumption of chastity and the presumption of legitimacy in order for the jury to uphold the will.
*868 The trial court, in its instructions to the jury, further stated:
"I further instruct you that the fact that the testator Fred W. Kingdon at the time he made a will in 1959 or before that time or subsequent thereto recited to others that Lotus Irene Korner was not a daughter of his body, was competent for the purpose of proving that he then believed such to be the facts, but on the other hand such statements to such effect made by the testator are wholly valueless for the purpose of proving that such an incident that he recited occurred which did not make the contestant Lotus Irene Korner a child of his body."
This instruction, if standing alone, would probably not be prejudicial error, but in light of the previously discussed instructions it again tends to put the burden of proving the legitimacy of Lotus Irene Korner on the proponents of the will. Such a burden, we again point out, is not upon the proponents as the factual question of the legitimacy of Lotus Irene Korner is not in issue in this case, and a decision upholding the will could not, in any event, affect the status of Lotus Irene Korner as legitimate or illegitimate.
The proponents claim that the trial court erred in failing to overrule objections to the admissibility of evidence concerning the existence of rumors of illicit relationship between Jessie Corkill Kingdon and Sig Boeman. This testimony was offered by the proponents, both through deposition witnesses and live witnesses. In perusing the record, it becomes apparent that the reason for sustaining objections to the admission of rumor evidence which was relied upon by the trial court was that such evidence is not reliable proof of the chastity of Jessie Corkill Kingdon. The trial court obviously concluded that there was a proper method to prove reputation for chastity and the introduction of rumor evidence was not such a method.
The theory of the hearsay rule is that when a human utterance is offered as evidence of the truth asserted in it, the credit of the assertor becomes the basis of the inference, and therefore the assertion can be received only when made upon the stand and subject to the test of cross-examination. In re Earle's Petition, 355 Mich. 596, 95 N.W.2d 833 (1959).
However, where it becomes relevant to show that a certain statement or declaration was made, regardless of the truth or falsity of the statement or declaration itself, such proof is not hearsay and should be admitted. It is evidence of what is sometimes called a verbal or operative fact. Keller v. Wonn, 140 W.Va. 860, 87 S.E.2d 453 (1955). See also Russell v. Geis, 59 Cal. Rptr. 569 (Cal.App.2d 1967). The primary question to be determined in this case is whether the decedent, Fred W. Kingdon, had any evidential basis that the contestant, Lotus Irene Korner, was not a child of his body. The existence of rumors as to an affair between Jessie Corkill Kingdon and Sig Boeman would be relevant insofar as the presence of such rumors could have affected the decedent's belief and given substance thereto. Since the basis of the contestant's case was the absence of such rumors, which established that the decedent had no basis for his belief, it is only just that the proponents could offer any evidence of the existence of such rumors in favor of their case. Thus, the trial court's reasoning in excluding testimony of this sort is not tenable, because the proponents were in no way attempting to prove that such an affair was an actual fact, or that Lotus Irene Korner was actually illegitimate. They were attempting to prove that such rumors existed and that, therefore, such rumors could form the basis for the belief of the testator that Lotus Irene Korner was not his child.
The proponents also claim that the court erred in sustaining several objections to the testimony of one of the subscribing witnesses to the will, before finally allowing said subscribing witness to testify as to the mental competency of the decedent. *869 Although we feel that this refusal to allow the subscribing witness to testify as to the decedent's competency when first asked was not prejudicial error in itself, we wish to indicate that a subscribing witness to a will may give his opinion as to the mental capacity of the testator without stating the facts upon which it is based or otherwise establishing his qualifications to judge the testator's mental capacity. Stormon v. Weiss, 65 N.W.2d 475 (N.D. 1954); In re Hanson's Estate, 87 Utah 580, 52 P.2d 1103 (1935).
The proponents claim that the court erred in not including an instruction to the effect that a testator may reasonably take into consideration the relative financial standing of his children and may logically discriminate in favor of those less favorably situated financially, as against those comparatively better off. The trial court in its memorandum decision pointed out that the reason for the denial of this instruction was that the three children here involved were proved to be relative financial equals. The trial court reached its conclusion in part by taking judicial notice of the value of the North Dakota land held by the proponents. While we question the propriety of taking judicial notice of the value of land, we wish to further point out that there are other factors to be considered in determining relative financial equality. The court did not seem to take into account the relative ages of the parties, nor the status of the dependents of the parties. These factors are important in determining relative financial standing, regardless of the equality of actual assets. We believe that the state of the evidence in this case warranted submitting the question to the jury in the form of an instruction as requested by the proponents.
We conclude that the cumulative errors as indicated above denied the proponents-appellants the substance of a fair trial and, therefore, we grant the motion for a new trial. The proponents, as grounds for a new trial, have urged other alleged errors which are commingled with the errors previously discussed. Since a new trial must be granted because of the errors in the trial heretofore considered, and there is no reasonable probability of any of the issues raised by these specifications of error arising upon such new trial, they will not be considered.
The order denying the motion for judgment notwithstanding the verdict is affirmed. The order denying the motion for a new trial is reversed and a new trial is granted.
TEIGEN, C.J., and STRUTZ, KNUDSON and ERICKSTAD, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597900/ | 818 So. 2d 352 (2002)
Raymond Joseph GREER a/k/a Raymond Joseph Greer, Sr., Appellant,
v.
STATE of Mississippi, Appellee.
No. 2000-KA-01388-COA.
Court of Appeals of Mississippi.
February 26, 2002.
Rehearing Denied June 4, 2002.
*354 Robert H. Koon, Gulfport, Attorney for Appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, Attorney for Appellee.
Before SOUTHWICK, P.J., LEE, and CHANDLER, JJ.
LEE, J., for the Court.
¶ 1. Raymond Joseph Greer, Sr. was convicted of capital rape of S.S., and he was sentenced to serve a term of life imprisonment in the Mississippi Department of Corrections. Feeling aggrieved, Greer has filed a timely appeal and presents the following issues: (1) whether the trial judge erred when he denied Greer's motion to suppress, (2) whether the trial judge erred when he denied Greer's jury instruction D-2, (3) whether Greer received ineffective assistance of counsel, and (4) whether the verdict was against the overwhelming weight of the evidence. We find that these issues are without merit, and affirm the verdict of the trial court.
FACTS
¶ 2. S.S. asserted that beginning when she was thirteen years old Greer had sexual intercourse with her. S.S. contended that, thereafter, she and Greer engaged in sexual intercourse on numerous occasions *355 over an approximately three year period. Testimony established that Greer was approximately thirty at the time the sexual intercourse occurred between him and S.S.
¶ 3. S.S. and her mother went to the Hancock County Sheriffs Department and informed investigators of the alleged crime. Thereafter, Greer was telephoned and instructed to come to the sheriff's department.
¶ 4. While at the sheriff's department, Greer confessed to having sexual intercourse with S.S. While his recollection of the sexual encounters between him and S.S. were somewhat different than hers, as far as places and times, Greer stated that he and S.S. had had intercourse at least fifteen times.
¶ 5. Thereafter, Greer filed motions to suppress his confession. Each motion was denied by the trial judge. Subsequently, Greer was found guilty of capital rape and sentenced to serve a term of life imprisonment in the Mississippi Department of Corrections.
DISCUSSION
I. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED GREER'S MOTION TO SUPPRESS.
¶ 6. Prior to trial, Greer filed a motion to suppress which sought to have his confession taken by the investigators of the Hancock County Sheriffs Department ruled inadmissible at trial. Greer initially asserted that the motion to suppress should be granted because the evidence was obtained without a valid arrest warrant. Greer argued that the suppression of the statement was warranted because he was arrested pursuant to an arrest warrant that was signed a day before the affidavit of probable cause. The trial court denied the motion. On the day of trial, Greer presented additional argument in an attempt to have his taped confession suppressed.
¶ 7. Greer argued that he had given the statement pursuant to promises from the investigator taking the statement. For the purposes of this appeal, Greer primarily focuses on his claim that he was offered promises in return for his confession.
¶ 8. The standard of review regarding a trial judge's ruling at a suppression hearing is whether substantial credible evidence was present to support the trial judge's finding when evaluating the totality of the circumstances. Price v. State, 752 So. 2d 1070, 1073(¶ 9) (Miss.Ct.App. 1999).
¶ 9. Usually, a confession must be voluntary and not the result of promises, threats, or inducements to be deemed admissible. Mixon v. State, 794 So. 2d 1007, 1009(¶ 4) (Miss.2001). "The test in such cases is whether the inducement is of a nature calculated under the circumstances to induce a confession irrespective of its truth or falsity." Taylor v. State, 789 So. 2d 787, 795(¶ 34) (Miss.2001). It is the prosecution's burden to prove beyond a reasonable doubt that the confession was voluntary. Mixon, 794 So.2d at (¶ 4). The prosecution meets this burden by presenting testimony from an officer or other person having knowledge of the facts, who states that the confession was made voluntarily without threats, coercion, or offer of reward. Id.
¶ 10. This Court only has a limited review when determining if a confession is voluntary. Id. at 1010(¶ 5). The trial judge sits as finder of fact when he or she determines the voluntariness, and this Court will not overturn the trial judge's decision unless manifestly wrong. Id.
¶ 11. Greer gave one recorded statement to an investigator with the Hancock *356 County Sheriff's Department in which he confessed to having sexual intercourse with S.S. on numerous occasions. Greer contends that there were approximately forty-four minutes prior to the tape that were unaccounted for and he asserts that during this time he was instructed by an investigator regarding what to say. Additionally, Greer argues that promises regarding leniency were made to him prior to the tape of his statement being made. Furthermore, Greer asserts that there are inconsistencies in his story and S.S.'s story which could only be explained by him forgetting what he had been told to say. We first note that any discrepancies in Greer's and S.S.'s version of events regarding their sexual relations is not relevant to the issue of the suppression of his statement and is to be weighed by the jury. Temple v. State, 498 So. 2d 379, 382 (Miss.1986).
¶ 12. The Mississippi Supreme Court has been faced with a similar argument regarding the inducement of a confession by promises in Layne v. State, 542 So. 2d 237, 239 (Miss.1989). Layne argued that the trial court erred when it failed to grant his motion to suppress a written statement to a police officer, because it was given pursuant to promises of leniency from a police officer. In particular, a police officer had said that if Layne "were to be cooperative with the investigation, the district attorney would be informed of this fact." Id. The Mississippi Supreme Court was troubled by the officer's statement. Id. at 240. Nevertheless, the Mississippi Supreme Court reviewed case law from other jurisdictions which had been faced with the same situation and held that if a statement such as one given to Layne regarding his cooperation were made without any other coercive psychological tactics it does not form an implied promise of leniency. Id. The Mississippi Supreme Court determined there was no evidence of further coercive psychological tactics, or that the "promise to tell the district attorney" was a proximate cause of Layne's confession; therefore, the statement was voluntary and admissible. Id.
¶ 13. The State presented testimony from the investigating officer who obtained the statement from Greer. The investigator explained that a portion of the forty-four minute delay was caused by the fact that it took him about twenty-five to thirty minutes to find a voluntary statement form. The testimony of the investigator and the transcript of the taped statement show that Greer was administered his Miranda rights prior to making the confession. In fact, Greer's Miranda rights were reviewed in great detail by the investigator with Greer. Additionally, the record does not contain any evidence to substantiate the assertion that Greer was coached by an investigator with the sheriff's department.
¶ 14. The following excerpt is a relevant portion of Greer's taped statement taken by Investigator Strong regarding Greer's assertion of a promise of leniency:
STRONG: Has anyone gave offered or promised you anything whatsoever to give, to make known the facts in this statement?
GREER: No sir
STRONG: What does that mean? Did anybody give you anything?
GREER: No
STRONG: Offer you anything?
GREER: No
STRONG: Did anybody tell you that you was going to get probation if you gave this statement?
GREER: No, no sir
STRONG: Did anybody tell you that you wasn't going to go to the penitentiary?
GREER: No sir
*357 STRONG: What did I tell you, that you was going go to the Penitentiary
GREER: That I was going, sure did
STRONG: That's correct, has anybody promised you anything?
GREER: No sir
STRONG: Well that's not true, I promised you that I'd talk to the district attorney and the judge and tell him that you did indeed cooperate
GREER: Yea you did tell me that
STRONG: Okay, you giving this statement freely and voluntarily?
GREER: Yes sir.
Like Layne v. State, 542 So. 2d 237, 239 (Miss.1989), Investigator Strong's promise to inform the district attorney and the judge that Greer cooperated had no reward attached to it. Nor did Greer answer as if he believed he would be rewarded. Additionally, Kenneth Hurt, an employee with the Hancock County Sheriff's Department was present during Greer's statement. Hurt testified that Greer had not been threatened or promised leniency by him or Investigator Strong while in his presence. Furthermore, at the time of his statement, Greer did not appear to consider Investigator Strong's promise to inform the district attorney and judge of his cooperation as a promise of leniency. Greer specifically denied having been made promises of leniency prior to the statement. Greer stated more than once during his confession that he was giving the statements voluntarily.
¶ 15. As mentioned earlier, initially, Greer did not present argument regarding involuntariness based on promises. He first argued that the statement should be suppressed because his arrest was unlawful. The trial judge denied the motion on this basis. However, when Greer was present in the trial court for his trial, he once again raised the issue of the suppression of the statement. This time Greer argued that he gave the statement because he had been coerced or promised leniency. The trial judge found that the motion was untimely, but allowed Greer to make a proffer. At the conclusion of the proffer, the trial judge noted the following in a portion of his ruling:
But going directly to the motion to suppress, the [c]ourt finds beyond a reasonable doubt and under the totality of the circumstances that the defendant did voluntarily and intelligently waive his privilege against self-incrimination. I base that upon the fact that the [c]ourt finds beyond a reasonable doubt that the defendant's [sic] is unworthy of belief.
The [c]ourt noted during the course of the testimony as questioned by the attorneys and by the Court that on occasions concerning, particularly the cross of Mr. Bourgeois, concerning the cross-examination of the statement by the defendant that he had been promised probation, and that he had been promised that he wouldn't get any time, and this business about whether he was cutting a deal and the business concerning 15 sex acts, the [c]ourt observed a different inflection in his voice, the tone of his voice and observed the demeanor of his face as he responded to those question [sic] ... But those factors, together with many other facts introduced during the first motion as well as this one, the [c]ourt finds beyond a reasonable doubt that he is unworthy of belief and finds that the statement was given freely and voluntarily and knowingly, and the [c]ourt finds that any alleged promise or if it is a promise, I know that Mr. Strong called it a promise, but let me just be specific, that the statement that he would go to the DA and to the judge, I believe, whatever the record shows, was not any promise of leniency and it was *358 not accompanied by any other coercive psychological tactics.
¶ 16. The facts presented and considered by the trial judge in his ruling were based on substantial credible evidence. The trial judge did not commit manifest error when he determined that the State had met its burden of proof and Greer's taped statement was voluntary. Therefore, this issue is without merit.
II. WHETHER THE TRIAL JUDGE ERRED WHEN HE DENIED JURY INSTRUCTION D-2.
¶ 17. Greer asserts that the trial judge erred in denying jury instruction D-2 because it denied him the defense that his taped confession was not voluntary, and therefore, should not be given any weight.
¶ 18. This Court's standard of review in determining whether a trial judge has properly granted or denied a jury instruction is as follows: "In determining whether error lies in the granting or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Robinson v. State, 726 So. 2d 189, 193(¶ 16) (Miss.Ct.App.1998).
¶ 19. A jury instruction must be supported by the evidence and be a correct statement of the law. See Perry v. State, 637 So. 2d 871, 877 (Miss.1994); Dedeaux v. State, 630 So. 2d 30, 33 (Miss.1993); Wilson v. State, 592 So. 2d 993, 997 (Miss.1991). A trial judge is vested with the discretion to refuse the jury instruction which misstates the law, lacks an evidentiary basis, or that is stated elsewhere in the instructions. Robinson, 726 So.2d at 194(¶ 18).
¶ 20. Jury instruction D-2 reads as follows:
You are the sole judges of the facts in this case. Your exclusive province is to determine what weight and credibility will be assigned to the testimony and supporting evidence of each witness in this case. You are required and expected to use your good common sense and sound judgment in considering and weighing the testimony of each witness who has testified in this case.
You may consider the alleged confession in the light of the manner by which you find it was obtained, and give it such weight and credibility as you think it is entitled. Unless you believe from the evidence beyond a reasonable doubt that the alleged confession made by the defendant was truthful, was accurately recorded; that the defendant understood what was said; and that such confession was made by the defendant of his own free will and was not extorted by threat of harm or promise of benefit, then you must disregard the alleged confession to the extent that these facts tend to discredit it.
While the trial judge allowed Greer to make a proffer outside the presence of the jury regarding the issue of voluntariness of his confession, no evidence was presented to the jury regarding the fact that the confession might have been obtained in an improper manner. If the instruction had been granted, the second paragraph of the instruction would have given a statement of facts for consideration by the jury which had not been placed before them. Therefore, jury instruction D-2 was properly denied. Accordingly, this issue is without merit.
III. WHETHER GREER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
¶ 21. Greer argues that he received ineffective assistance of counsel because his attorneys failed to investigate *359 the charges of coercion and promises of leniency.
¶ 22. To prevail on the issue of whether his defense counsel's performance was ineffective requires a showing that counsel's performance was deficient and that the defendant was prejudiced by counsel's mistakes. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). The burden is on the defendant to bring forth proof which demonstrates that both prongs of the Strickland test are met. Moody v. State, 644 So. 2d 451, 456 (Miss.1994). There is a strong but rebuttable presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Id. at 456. Accordingly, appellate review of counsel's performance is "highly deferential." Strickland, 466 U.S. at 689, 104 S. Ct. 2052. "The deficiency and any prejudicial effect are assessed by looking at the totality of the circumstances." Carney v. State, 525 So. 2d 776, 780 (Miss.1988). Greer must prove that it is reasonably probable that "but for" the errors committed by his counsel, the outcome of his trial would have been different. Nicolaou v. State, 612 So. 2d 1080, 1086 (Miss.1992).
¶ 23. While the issue of voluntariness of confession was not the first issue used to attack the validity of the confession, it was eventually pursued by Greer's attorneys. We cannot say that this was not a tactical decision. Indeed, the record indicates that Greer's attorneys needed more time to investigate this argument. Even Greer admitted that he did not initially talk to his attorneys about having been coerced or promised leniency regarding his giving the confession. Additionally, the trial judge allowed Greer's counsel to make a proffer regarding voluntariness. Since we determined in issue one that the trial judge did not commit manifest error in determining that the confession was voluntary, we reach the ultimate conclusion that Greer has failed to show he was prejudiced. Therefore, this issue is without merit.
IV. WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
¶ 24. Greer argues that the trial judge erred when he denied the motion for a new trial because the facts presented at trial would not allow a reasonable hypothetical juror to find him guilty. Greer asserts that the verdict was against the overwhelming weight of the evidence because S.S.'s testimony was not supported by physical evidence. Additionally, Greer argues that he was convicted based on his confession which should have been suppressed. Greer also requests this Court to ignore long standing precedent and hold that the testimony of a single witness should not be sufficient to sustain a conviction in the absence of some corroboration. Since this Court determined in issue one that Greer's confession was legally obtained and admissible this part of the argument does not merit further discussion.
¶ 25. In Benson v. State, 551 So. 2d 188, 193 (Miss.1989), the Mississippi Supreme Court provided the following explanation of when it would grant a new trial:
This [c]ourt will not order a new trial "unless convinced that the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to sanction an unconscionable injustice." Groseclose v. State, 440 So. 2d 297, 300 (Miss.1983). Factual disputes are properly resolved by the jury and do not mandate a new trial. Temple v. State, 498 So. 2d 379, 382 (Miss. 1986).
A motion for a new trial is within the sound discretion of the trial court. Burge *360 v. State, 472 So. 2d 392, 397 (Miss.1985). It must be kept in mind that any discrepancies were properly resolved by the jury as fact finder because questions regarding weight and worth of witness testimony or witness credibility are for the jury to settle. Eakes v. State, 665 So. 2d 852, 872 (Miss.1995). This Court accepts as true all evidence which supports the verdict and will reverse only when convinced that the trial court has abused its discretion in failing to grant a new trial. Id.
¶ 26. Since we find that Greer's confession was properly admitted, we also conclude that S.S.'s testimony was corroborated. Therefore, we are no longer faced with the argument regarding corroboration and the overturning of precedent. The fact that there were differences regarding the times and the places where the sexual intercourse occurred was for the jury to decide. Additionally, S.S. corroborated her assertion of sexual intercourse with her testimony regarding a more personal fact about Greer.
¶ 27. S.S. stated that during the sexual encounters with Greer she noticed that Greer had a tattoo in the crease of his leg near his abdomen which read "TC's toy." Greer did not deny the presence of the tattoo. However, Greer asserted that S.S. did not learn of the tattoo as a result of any sexual encounters between them, but because the tattoo was common knowledge. Nevertheless, once again, the discrepancy regarding how S.S. had knowledge of Greer's tattoo was for the jury to weigh.
¶ 28. Upon reviewing all of the evidence we find that the trial judge did not abuse his discretion in denying the motion for new trial. Accordingly, this issue is without merit.
¶ 29. THE JUDGMENT OF THE CIRCUIT COURT OF HANCOCK COUNTY OF CONVICTION OF CAPITAL RAPE AND SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THE APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING and SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER and BRANTLEY, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597533/ | 818 So.2d 693 (2002)
Ira STAFFORD, Appellant,
v.
STATE of Florida, Appellee.
No. 5D01-1305.
District Court of Appeal of Florida, Fifth District.
June 14, 2002.
James B. Gibson, Public Defender and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
PALMER, J.
Ira Stafford appeals his sentences arguing that the trial court erred in determining that it was required to impose consecutive sentences in this case. We agree and therefore vacate Stafford's sentences and remand for resentencing.
After Stafford was convicted of committing the crimes of armed burglary and armed robbery, the State requested the imposition of consecutive sentences citing to section 775.087 of the Florida Statutes (the "10-20-life" statute), asserting that imposition of consecutive sentencing was required. Stafford objected, arguing that the trial court possessed discretion to impose *694 concurrent sentences. The trial court sentenced Stafford to a term of 10 years imprisonment on each conviction and directed that the sentences were to run consecutively, specifically stating on the record that it felt constrained by the language of the 10-20-life statute to impose consecutive sentences. This appeal timely followed.
Stafford argues that the trial court was under the misapprehension that the 10-20-life statute required the court to impose consecutive sentences and therefore he is entitled to receive a new sentencing hearing so that the court can properly exercise its discretion in deciding whether to impose consecutive sentencing. We agree.
The 10-20-life statute provides, in relevant part, as follows:
775.087. Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence
* * *
[3](d) It is the intent of the Legislature that offenders who possess, carry, display, use, threaten to use, or attempt to use a semiautomatic firearm and its high-capacity detachable box magazine or a machine gun as defined in s. 790.001 be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.
(Emphasis added).
The issue presented as to whether the language highlighted above requires the trial court to impose consecutive sentencing was recently addressed by the Third District in Mondesir v. State, 814 So.2d 1172, 27 Fla. L. Weekly D867 (Fla. 3d DCA April 17, 2002). In that case, the defendant was on probation for two drug offenses when he was convicted of committing new substantive offenses of aggravated assault with a firearm, kidnaping with a firearm, carjacking with a firearm, robbery with a firearm, and possession of a firearm during the commission of the other four felonies. The substantive firearm offenses were subject to the sentencing provisions of the 10-20-life statute and the court imposed concurrent terms of imprisonment under that statute. The defendant appealed his judgments and sentences, and the State cross-appealed challenging the trial court's failure to impose consecutive sentences. In asserting its cross-appeal, the State argued that the trial court erred in refusing to impose consecutive sentences, claiming that the 10-20-life statute required consecutive sentences as to each of the four 10-20-life offenses. Upon review, the Third District disagreed:
Merely on the face of the statute, the reference to "any other" felony refers, as in this case, only to another separate crime, rather than those involved in a single prosecution. In the comments to its Final Analysis of CS/CS/HB 113 (SB 194), which became Chapter 99-12, Laws of Florida, and subsection 775.087(2), the Committee on Crime and Punishment in the House of Representatives so stated:
Consecutive Sentences
The bill provides that the Legislature intends for the new minimum mandatory sentences to be imposed for each qualifying count, and the court is required to impose the minimum mandatory sentences required by the bill consecutive to any other term of imprisonment imposed for any other felony offense. This provision does not explicitly prohibit a judge from imposing the minimum mandatory sentences concurrent to each other.
*695 The reasoning set forth by the court in Mondesir is sound and hereby adopted.
The State argues that Stafford's sentence should be affirmed because this legislative intent argument is being raised for the first time on appeal. We disagree because the record clearly demonstrates that Stafford raised an objection to the imposition of consecutive sentencing both at the time of sentencing and by filing a post-sentencing motion for rehearing.
The State also asserts that, contrary to Stafford's claim otherwise, the trial court did exercise its discretion in determining that consecutive sentencing was warranted in this case. However, independent review of the record reveals that the trial court specifically stated on the record that it felt constrained to impose consecutive sentences:
The question is what sentence can be imposed that is a just sentence and quite frankly, considering his background and considering his history and virtual lack of authority, virtual lack of record whatsoever, if I had discretion I might not impose the sentence that I think needs to be imposed. But as I read the statute I have to impose the minimum mandatory on each count and have to run them consecutive. And I'm putting that on the record because I believe that is what the statute says. So if the case is reviewed, and I'm sure it will be, then those reviewing it can take my words at heart because that is what I believe the law is, and if they disagree with me they sure know how to tell me.
Sentences VACATED and cause REMANDED for resentencing.
COBB and HARRIS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597534/ | 158 N.W.2d 125 (1968)
LLOYD E. CLARKE, INC., et al., Appellees,
v.
CITY OF BETTENDORF, Iowa, a municipal corporation, et al., Appellants.
No. 52848.
Supreme Court of Iowa.
April 9, 1968.
Albert J. Stafne, Jr., Bettendorf, for appellants.
Herrick, Langdon, Sandblom & Belin, Des Moines, Hoersch & Werner, Davenport, and Peart, Lincoln & Wells, Davenport, all for appellees.
BECKER, Justice.
This case comes to us after ruling on motion for judgment on the pleadings. Plaintiffs seek declaratory judgment decreeing invalid and void an ordinance of the City of Bettendorf providing charges for connection to the city sanitary sewer system. The trial court held the ordinance illegal and void but granted defendants time to amend their answer. Defendants by amendment alleged plaintiffs were estopped from challenging the validity of the ordinance. Thereupon defendants amended and renewed their motion for judgment on the pleadings. Again, the trial court ruled in favor of plaintiffs. As to the plea of estoppel the court held a power which a city does not have by statute cannot be created by estoppel. Plaintiffs also moved to strike portions of defendants' amended answer but the court found no need to rule on that motion.
The factual background comes from the pleadings. Defendants admit in their answer all the factual allegations of plaintiffs' petition. They deny only two paragraphs containing plaintiffs' conclusions. Since plaintiffs filed the motion for judgment *126 on the pleadings and no reply has been filed to any of the facts pleaded as an affirmative defense, the well pleaded factual allegations in defendants' answer are taken as true. Nall v. Iowa Electric Company, 246 Iowa 832, 835, 69 N.W.2d 529.
We therefore recite the facts chronologically for easier understanding and without regard to the source of the allegations.
Plaintiffs are corporate real estate subdividers and developers. Prior to April 12, 1966, the date the ordinance in question was adopted, plaintiffs requested the city extend sanitary trunk sewers to their respective subdivisions. The developers and the city held meetings to discuss financing new sewer extensions through large underdeveloped areas to reach plaintiffs' land and the necessary enlargement of present equipment occasioned by such developments.
On February 9, the parties orally agreed the city at its initial expense would extend the sewers as requested to serve plaintiffs' properties. This would include necessary additions to the existing system. The improvements were to be financed by the city's issuing general obligation bonds to be retired partially by a connection charge of $125 for each house connection in the subdivision. An ordinance to that effect was contemplated. Without such an agreement the city would not construct the sewer.
The city went ahead with the planned extensions and concurrently passed the ordinance in question regulating connection methods and providing in pertinent part as follows:
"(1) The basic connection fee for each connection made to the sanitary sewer system of the City of Bettendorf, Iowa, shall be as hereinafter stated and shall be based upon the following three classes of building sewer permits:
"(I) Residential properties-connection fee shall be One Hundred Twenty-five Dollars ($125.00).
"(II) Commercial or business properties-connection fee shall be Two Hundred Dollars ($200.00).
"(III) Establishments producing industrial wastes-connection fee shall be Three Hundred Dollars ($300.00)."
Plaintiffs made application to connect their various new houses to the sewer. They tendered a $5 inspection fee and $1 digging fee but refused to pay the $125 connection fee. The city denied the application for failure to pay the latter sum. Plaintiffs paid the full fee under protest and started this action seeking to have the pertinent parts of the ordinance declared illegal and void. They allege the city intends to continue to collect the fees in question under what they contend is an illegal ordinance.
The trial court held the city had no statutory or other authority to levy the connection fees provided in the new ordinance and could not gain that authority by estoppel. We agree.
I. Code of Iowa, 1966, sections 368.26 and 391.11 authorize a city to construct, repair and regulate connections. The first issue here is whether the city can finance such construction in whole or in part by charging connection charges in excess of the normal and nominal inspection fee; the excess to be used to finance initial construction.
Section 391.13 empowers the city to finance the construction of any main sewer or system of main sewers by assessing the cost to the respective lots as adjacent property. Section 391.18 to 391.91 regulates the powers and procedures of the city in levying such assessments. These regulations are specific and detailed. This assessment power is one method of financing sewer construction.
A second method of financing construction, reconstruction or repair of main sewers and sewage purifying plants is by issuance of general obligation bonds as *127 provided in section 396.2 and section 404.9. The latter section also allows for use of a combination of the first and second methods.
II. No other provision is provided for payment for sewer construction unless section 391.8 is broad enough to allow for connection fees or hook-on charges to be used as a method of financing. Section 391.8 provides: "Gas, water, and other connections. They shall have power to require the connections from gas, water, and steam-heating pipes, sewers, and underground electric construction, to the curb line of adjacent property, to be made before the permanent improvement of the street and, if such improvements have already been made, to regulate the making of such connections, fix the charges therefor, and make all needful rules in relation thereto, and the use thereof."
The trial court carefully analyzed section 391.8 and properly concluded it authorizes charges by the city for the cost of administration of the hook-up regulations; such as issuance of permit, inspection fees and cost of keeping records. It concluded the section did not authorize hook-up or connection fees to be used as a method of financing to retire the cost of construction.
We need not extend this opinion by a long analysis of the section or an extended set of definitions of the words employed by the legislature. We think a fair reading of the statute impels the conclusion the section deals only with costs and regulations incident to a line running from the middle of the street to the curb line so that a newly laid street will not be unnecessarily disturbed, and if it is disturbed, so that it will be properly repaired. It has nothing to do with and cannot be used as a basis for financing the overall project. Factual situations relevant to section 319.8 are found in such cases as Seymour v. City of Ames, 218 Iowa 615, 255 N.W. 874 and Toben v. Town of Manson, 192 Iowa 1127, 185 N.W. 984.
The definitions contained in section 391.14 do not affect our interpretation of 391.8. Section 391.14 provides: "Adjacent property and main sewer. All such lots which may be furnished with sewer connections or drained by such main sewer or sewer system, shall be considered as adjacent property.
"A main sewer shall be held to mean any sewer that is commonly referred to by any one of the following terms; `intercepting sewer', `outfall sewer', or `trunk sewer'." That definition is made in connection with assessment procedures. But even if it is applied to 391.8 it does not change what we deem the obvious purpose of the latter section; i. e., to control the physical and limited act of street sewer connections for regulatory, not cost retirement, purposes.
III. Defendant argues strenuously the trial court's opinion and the reasoning we use here is a return to the old "Dillon Rule" of strict construction of powers granted by the legislature to municipalities, see Richardson v. City of Jefferson, 257 Iowa 709, 713, 134 N.W.2d 528, and this is contra to chapter 235, Laws of the 60th General Assembly (now the second paragraph of Iowa Code, 1966, section 368.2). The amendment specifically mandates liberal construction of such statutes in favor of the municipality. We set forth the first section of the amendment with the sentences numbered for convenient reference.
"[1] It is hereby declared to be the policy of the state of Iowa that the provisions of the Code relating to the powers, privileges, and immunities of cities and towns are intended to confer broad powers of self-determination as to strictly local and internal affairs upon such municipal corporations and should be liberally construed in favor of such corporations. [2] The rule that cities and towns have only those powers expressly conferred by statute has no application to this Code. [3] Its *128 provisions shall be construed to confer upon such corporations broad and implied power over all local and internal affairs which may exist within constitutional limits. [4] No section of the Code which grants a specific power to cities and towns, or any reasonable class thereof, shall be construed as narrowing or restricting the general grant of powers hereinabove conferred unless such restriction is expressly set forth in such statute or unless the terms of such statute are so comprehensive as to have entirely occupied the field of its subject. [5] However, statutes which provide a manner or procedure for carrying out their provisions or exercising a given power shall be interpreted as providing the exclusive manner of procedure and shall be given substantial compliance, but legislative failure to provide an express manner or procedure for exercising a conferred power shall not prevent its exercise. [6] Notwithstanding any of the provisions of this section, cities and towns shall not have power to levy any tax, assessment, excise, fee, charge or other exaction except as expressly authorized by statute."
Richardson v. City of Jefferson, supra, considered the import of the foregoing amendment at length. We there held the amendment is a rule of construction and as such it is constitutional. As to sentences five and six which are particularly applicable here we said: "The fifth sentence does no more than provide that the manner or procedure where provided shall be substantially followed and that a granted power shall not fail because of the lack of an express manner or procedure for its exercise. This is declaratory of existing law. Baird v. Webster City, 256 Iowa 1097, 1103, 130 N.W.2d 432, 436; Incorporated City of Humboldt v. Knight, 255 Iowa 22, 120 N.W. 2d 457; and City of Des Moines v. Reiter, 251 Iowa 1206, 1212, 102 N.W.2d 363, 367.
"The sixth sentence, for the purposes of this case, means exactly what it says, `cities and towns shall not have power to levy any tax, assessment, excise, fee, charge or other exaction except as expressly authorized', it is a limitation, neither a grant of power nor a rule of construction."
Both sentences five and six require the result reached by the trial court. They do no necessarily reinvoke the former rules of construction prevalent before adoption of the amendment. They provide their own rules of construction which for the areas mentioned require narrower interpretation than that mandated by the first three sentences of the amendment.
Here two methods of financing are supplied. They must be held to be exclusive. Here a fee, charge or other exaction is being levied without express authorization. Under either sentence five or six the levy is illegal.[1]
At 13 Drake Law Review 53 an extensive analysis of the amendment to section 368.2 appears under title "Home Rule" For Iowa Cities And Towns?. In discussing the fifth sentence quoted above the author uses a factual situation identical to this case: "The quoted sentence [5] is a definite limitation upon any proposed construction that would declare House File 380 a `home rule' act. Consider a few of the more familiar fields of local endeavor. Municipalities cannot devise a new way of assessing public improvements because the `manner of procedure' is spelled out in great detail in Chapters 391, 391A and 417 of the Code and, therefore, falls within the quoted exception."
IV. Defendants' affirmative defense cannot avail them here. The city says in effect that even though the ordinance is invalid plaintiffs are estopped from challenging its validity.
*129 In O'Brien v. Wheelock, 184 U.S. 450, 489, 22 S.Ct. 354, 369, 46 L.Ed. 636 (1901) the United States Supreme Court said: "We are unwilling to assent to the doctrine of legislation by estoppel." The Florida Supreme Court in City of Miami Beach v. E. J. Smith Co., 90 So.2d 312 said: "[W]e do not think this principle [estoppel] should be applied where to do so would extend the power and authority of a city beyond that lawfully granted to it by the Legislature." See also Eastern Illinois State Normal School v. City of Charleston, 271 Ill. 602, 111 N.E. 573, L.R.A.1916D, 991; Ladnier v. Mollere, 230 La. 784, 89 So.2d 301; 38 Am.Jur., Municipal Corporations, section 668, p. 374.
Defendants rely on St. Louis Malleable Casting Company v. George C. Prendergast Const. Co., 260 U.S. 469, 43 S.Ct. 178, 67 L.Ed. 351, where plaintiff connected to a sewer and then challenged the assessment procedures alleging violation of due process. The United States Supreme Court held plaintiff estopped from challenging the constitutional validity of the proceedings where it had accepted the benefits of the project. But the court distinguished O'Brien v. Wheelock, supra, with the following comment, "It is not attempted here, as there [in O'Brien], to enforce a law as of validity by estoppel to particular persons, though invalid, under the Constitution of the state, to all of the world besides."
As we interpret St. Louis Malleable Casting Company v. George C. Prendergast Const. Co., supra, it would not allow an invalid ordinance to be held valid by estoppel. The case was concerned with the due process validity of the assessment proceedings. Not with the statute or ordinance itself. The distinction involves the power to act at all (which cannot be created by estoppel, O'Brien v. Wheelock, supra) and an illegal exercise of power with which the city has been clothed (which can be defended by claim of estoppel where factually justified, St. Louis Malleable Casting Company v. George C. Prendergast Const. Co., supra).
Here the ordinance clearly exceeds the city's statutory authority. Whatever may be its rights against plaintiffs based on contracted theories it cannot sustain its ordinances by estoppel.
Affirmed.
All Justices concur.
NOTES
[1] We are aware of the amendment to Chapter 393 passed in 1967, Acts of Regular Session, 62nd General Assembly, Chapter 332, which, with certain restrictions, allows sewer connection charges very much as contemplated by the instant ordinance. However, this amendment was passed after the ordinance and defendant does not argue it is applicable here. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597535/ | 3 So.3d 332 (2009)
BRAGGS
v.
STATE.
No. 3D08-2582.
District Court of Appeal of Florida, Third District.
January 30, 2009.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597597/ | 3 So.3d 367 (2009)
CENTRAL MOTOR COMPANY d/b/a Central Hyundai, Appellant,
v.
Earline P. SHAW, Appellee.
No. 3D07-765.
District Court of Appeal of Florida, Third District.
January 14, 2009.
Rehearing and Rehearing En Banc Denied March 20, 2009.
*368 Bilzin Sumberg Baena Price & Axelrod and Allen J. Smith, for appellant.
Timothy Carl Blake, Miami, for appellee.
Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
SUAREZ, J.
Central Motor Company ("Central Motor") appeals the denial of a motion for attorney's fees and costs pursuant to the offer of judgment statute, section 768.79, Florida Statutes (2007). We affirm the trial court's order denying attorney's fees and costs.
Central Motor sold Shaw a car which was financed by Hyundai Motor Finance Company ("Hyundai Finance") through a retail installment sales contract. Shaw sued both Central Motor and Hyundai Finance for unfair and deceptive trade practices. She alleged that both companies acted in concert by failing to inform her of the rates and terms of the loan, which were higher than the normal buy-rate. In February, 2004, Central Motor sent a Proposal for Settlement in which it offered Shaw $1,000.00 in exchange for a voluntary dismissal with prejudice of the action against Central Motor. Shaw did not accept. On October 4, 2006, with the knowledge of Central Motor, Shaw and Hyundai Finance entered into a settlement agreement whereby Hyundai Finance and Shaw stipulated that Hyundai Finance would pay a total of $10,000.00 to Shaw and her attorney, to be divided equally, and that Shaw would voluntarily dismiss with prejudice her lawsuit against both Hyundai Finance and Central Motor.[1] Hyundai Finance paid the $10,000.00 to Shaw, and Shaw voluntarily dismissed with prejudice her lawsuit as stipulated. After the voluntary dismissal with prejudice was taken, Central Motor filed a Supplementary Motion for Attorney's Fees and Costs pursuant to the offer of judgment statute. See § 768.79, Fla. Stat. (2007).[2]
*369 Under the statute, if there is a judgment of no liability or one for at least twenty-five percent of the offer of settlement, the offeror in this case, Central Motor, is entitled to attorney's fees and costs. Central Motor filed the Supplementary Motion for Attorney's Fees and Costs in reliance upon the fact that, in February of 2004, it had filed a Proposal for Settlement in which it had offered Shaw $1,000.00 in exchange for a voluntary dismissal with prejudice. Central Motor contends that, because it paid no money toward the October, 2006 stipulated settlement, its offer of judgment for $1,000.00 was not accepted, and Shaw received the $10,000.00 from Hyundai Finance, it is entitled to attorney's fees and costs. Based on the facts before us, we disagree and affirm the trial court's denial of Central Motor's Supplemental Motion for Attorney's Fees and Costs.
In its brief, Central Motor relies on the case of MX Investments, Inc. v. Crawford, 700 So.2d 640 (Fla.1997). MX Investments is factually distinguishable and not dispositive of this case. In MX Investments, after suit was filed, MX Investments served two offers of judgment. Prior to trial, plaintiffs filed a voluntary dismissal without prejudice. MX Investments then moved for attorney's fees pursuant to its statutory offers of judgment. The issue before the Florida Supreme Court was whether attorney's fees should be awarded pursuant to section 768.79, Florida Statutes (2007), where a voluntary dismissal without prejudice had been taken. Like the facts in MX Investments, Central Motor filed an offer of judgment. The offer was for $1,000.00. Unlike the facts of MX Investments, this lawsuit ended with the payment of money to the plaintiff with the agreement that such payment would release the action against both defendants, and that the plaintiff would enter a voluntary dismissal with prejudice as to both defendants. Central Motor, having benefited from Hyundai Finance's payment of $10,000.00 to settle the lawsuit, now seeks additional profit from the settlement by requesting attorney's fees and costs. This is not the intent of the statute, and such interpretation would lead to an absurd result. See Wollard v. Lloyd's & Cos., 439 So.2d 217, 218 (Fla.1983).
The history of cases interpreting the intent of the offer of judgment statute and those adopting Florida Rule of Civil Procedure 1.442 "reflect that an award of attorney fees authorized by section 768.79 is a sanction against the rejecting party for the refusal to accept what is presumed to be a reasonable offer ... for unnecessarily continuing the litigation.... The factors specified in rule 1.442 each have to do with the evaluation and nature of the offers and the case in litigation." Sarkis v. Allstate Ins. Co., 863 So.2d 210, 222 (Fla.2003). For Central Motor to receive an award of attorney's fees and costs, this Court would have to find that Shaw, by rejecting Central Motor's offer, caused "delay costs and expenses" unnecessarily prolonging the litigation. The facts of this case do not *370 demonstrate that Shaw's rejection of the offer unnecessarily prolonged the litigation adding additional costs and expenses such that she should be sanctioned. She should not be sanctioned when, with Central Motor's knowledge, she later agreed to settle her claim against both Hyundai Finance and Central Motor for a much greater amount than offered by Central Motor alone. Without objection, Central Motor knowingly allowed the money to be paid on its behalf to secure a complete release from the litigation. Now Central Motor should not be permitted to profit more, in attorney's fees and costs, than it already has from Hyundai Finance's settlement with Shaw that resulted in its being released from the lawsuit. Because Shaw agreed to the dismissal with prejudice against both defendants as part of the terms of the settlement, and since Central Motor knowingly benefitted from the $10,000.00 payment on its behalf to secure, not only Hyundai Finance's, but Central Motor's release from litigation, the dismissal with prejudice here should not be considered a basis for an award of attorney's fees and costs within the meaning of the offer of judgment statute.[3] To do otherwise would counter the intent of the statute and would amount to nothing more than a "gotcha" tactic. See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979).
There is no reason to impose a sanction on Shaw for rejecting Central's $1,000.00 offer in 2004, when Shaw achieved a much better $10,000.00 settlement with Hyundai Finance in 2006, along with the release of both defendants from the lawsuitstrictly a windfall readily accepted by Central Motor. Accordingly, we find that, based on these facts, Central Motor is not entitled to attorney's fees and costs. See § 768.79, Fla. Stat. (2007); Sarkis, 863 So.2d at 218 ("[A]ttorney fees awarded pursuant to the offer of judgment statutes are sanctions... for unreasonable rejections of offers of judgment."); Wollard v. Lloyd's & Cos., 439 So.2d at 218 ("It is a mere tenet of statutory construction that statutes will not be interpreted so as to yield an absurd result.").
Affirmed.
SCHWARTZ, Senior Judge, concurs.
SHEPHERD, J., dissenting.
If this were a court of equity, I might agree with the majority. However, this is a court of law, and under Section 768.79, Florida Statutes (2004), Central Motor Company is entitled to recover its reasonable attorney fees and costs pursuant to the statute.
The necessary facts in this case are that on February 18, 2004, Central Motor made an offer of judgment solely on its own behalf in the sum of $1000. Ms. Shaw declined to accept. Two-and-a-half years later, on October 4, 2006, counsel for Hyundai Motor Finance Company sent the following settlement confirmation letter to counsel for Ms. Shaw:
Dear Tim:
Confirming our recent telephone conversations, Hyundai Motor Finance Company has agreed to settle the lawsuit *371 filed by Earline Shaw on the following terms:
1. Hyundai will pay Earline Shaw $5000 and the Timothy Carl Blake trust account $5000.
2. Earline Shaw will dismiss her lawsuit with prejudice against Hyundai and Central Motors.
3. Earline Shaw will sign a release in favor of Hyundai and Central Motors.
Enclosed is a proposed release and a voluntary dismissal. Please have signed and return to me. By the time you return the documents to me, I should have the checks for you.
/s/ Bruce Charles King
Counsel for Central Motor was copied on the letter. He knew settlement discussions were occurring between counsel for Ms. Shaw and Hyundai Finance. It is also undisputed that Central Motor consistently rebuffed entreaties by both counsel for Ms. Shaw and counsel for Hyundai Finance to participate in any settlement negotiations or offer of settlement. Counsel for Hyundai Finance was not authorized to represent Central Motor in settlement negotiations. Nor was there any legerdemain by Central Motor in refusing to settle. From all that appears in the record, this is a case in which Ms. Shaw's counsel simply forgot about the existence of an ancient offer of judgment.
Nevertheless, the trial court denied Central Motor's motion for attorney fees, stating, "Something sounds kind of inequitable about this. Both defendants get settled. I am going to deny the motion." In so ruling, the trial court acted contrary to law.
Section 768.79, Florida Statutes (2004), reads:
(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. Where such costs and attorney's fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff's award. If a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand. If rejected, neither an offer nor demand is admissible in subsequent litigation, except for pursuing the penalties of this section.
....
(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees.
(b) When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:
1. The then apparent merit or lack of merit in the claim.
*372 2. The number and nature of offers made by the parties.
3. The closeness of questions of fact and law at issue.
4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.
5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.
6. The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.
(8) Evidence of an offer is admissible only in proceedings to enforce an accepted offer or to determine the imposition of sanctions under this section.
768.79(1), (7), (8), Fla. Stat. (2004).
Construing a substantively identical version of this statute in 1995, the Florida Supreme Court held that by adopting this statute:
[T]he legislature has created a mandatory right to attorney's fees if the statutory prerequisites have been met ... i.e., (1) when a party has served a demand or offer for judgment, and (2) that party has recovered a judgment at least 25 percent more or less than the demand or offer.
TGI Friday's, Inc. v. Dvorak, 663 So.2d 606, 611 (Fla.1995) ("[T]he words shall be entitled ... in subsection (1) quoted above cannot possibly have any meaning other than to create a right to attorney's fees when the two preceding prerequisites have been fulfilled...."). In this case, Ms. Shaw voluntarily dismissed her complaint against Central Motor with prejudice. "[W]hen a plaintiff's voluntary dismissal is with prejudice or is a second voluntary dismissal[,] the defendant [is] entitled to attorney fees in accord with section 768.79...." MX Invs., Inc. v. Crawford, 700 So.2d 640, 642 (Fla.1997) (emphasis added). Central Motor Company has satisfied all the requirements necessary to be entitled to a fee and cost award.
If entitlement is shown under the statute, a trial court still may "in its discretion... disallow an award of attorney's fees, but only if it determines that a qualifying offer `was not made in good faith.'" TGI Friday's, 663 So.2d at 612; accord Segarra v. Mellerson, 675 So.2d 980, 983 (Fla. 3d DCA 1996). As explained by the Florida Supreme Court in TGI Friday's:
That is the sole basis on which the court can disallow an entitlement to an award of fees. In that circumstance, however, a "not in good faith" offerorthough prima facie entitled to fees under section 768.79(7)has lost that entitlement because the offeree has succeeded in persuading the trial judge that the offeror acted without good faith. His entitlement to fees has thus been disallowed because his intentions have been shown to be "not in good faith." Here, however, that provision is inapplicable because there was no evidence that the demand was "not made in good faith," and no finding to that effect by the trial judge.
TGI Friday's, 663 So.2d at 612 (emphasis added). The same is true in our case. Ms. Shaw did not assert below that Central Motor's offer was "not made in good faith." See § 768.97(7)(a).
Nevertheless, the majority affirms on the ground that Central Motor (1) acquiesced to, and (2) profited from the settlement. As to the former, it is clear from the record of the hearing on Central Motor's Motion for Attorneys' Fees Pursuant to Offer of Judgment that both counsel for Ms. Shaw and counsel for Hyundai Finance *373 wanted a global settlement. As counsel for Ms. Shaw put it, "I said I couldn't settle unless I settled with both. I did talk to [counsel for Central Motor] and tried to get him to pay the plaintiff some money." (emphasis added). Similarly, out of concern of a potential cross-claim if the litigation were to continue solely against Central Motor, Hyundai Finance also desired a global settlement. Both counsel for Ms. Shaw and Hyundai Finance acknowledge that Central Motor simply refused to settle. That was its right. It also had no legal obligation to remind either party of its long-outstanding offer of judgment. The fact that counsel for Ms. Shaw and Hyundai Finance ultimately entered into a settlement agreement that conferred a benefit to Central Motor is also of no legal significance. These two parties had no right to decide what "profit" Central Motor should receive as a result of its ten-year defense of this action brought against them.
In her brief, Ms. Shaw makes one additional argument to excuse her from having to respond to Central Motor's offer of judgment, namely that Central Motor and Hyundai Finance were in privity with each other. That is true in the sense that Hyundai Finance agreed to purchase the retail installment contract executed by Ms. Shaw. See Baskerville-Donovan Eng'rs, Inc. v. Pensacola Executive House Condo. Ass'n, 581 So.2d 1301, 1303 (Fla.1991) ("The term `privity' is a word of art ... used to describe the relationship of persons who are parties to a contract."). However, it is clear Central Motor and Hyundai Finance are separate entities one a local automobile dealership and the other the national finance arm of an automobile manufacturer. Hyundai Finance was under no obligation to purchase any retail installment contract procured by Central Motor. The relationship between Central Motor and Hyundai Finance does nothing to assist Ms. Shaw in her defense of Central Motor's motion for attorney fees pursuant to the offer of judgment statute. See Networkip, LLC v. Spread Enters., Inc., 922 So.2d 355, 358 (Fla. 3d DCA 2006) ("A third party is considered a beneficiary to the contract only if the contracting parties intend to primarily and directly benefit the third party."); City of Tampa v. Thornton-Tomasetti, P.C., 646 So.2d 279, 283 (Fla. 2d DCA 1994) (stating that contracting parties' intention is determinative, and "it is not enough that the... services ultimately rendered accrue to the [third party]").
For the foregoing reasons, I would reverse the order on appeal with directions to the trial court to award reasonable attorney fees and costs to Central Motor pursuant to the offer of judgment statute.
NOTES
[1] Both Hyundai Finance and Central Motor received complete releases from Shaw.
[2] 768.79 Offer of judgment and demand for judgment
(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award.
....
(7)(b) When determining the reasonableness of an award of attorney's fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:
1. The then apparent merit or lack of merit in the claim.
2. The number and nature of offers made by the parties.
3. The closeness of questions of fact and law at issue.
4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.
5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties.
6. The amount of the additional delay cost and expense that the person making the offer reasonably would be expected to incur if the litigation should be prolonged.
[3] As the dissent points out, the entitlement to attorney's fees is expressly authorized as a matter of right by section 768.79(2)(a), Florida Statutes (2007). See op. at ___. However, "[w]hile the reasonableness of the rejection of the offer ha[s] no bearing on the issue of entitlement to fees, the factors set forth in section 768.79(2)(b), which have been incorporated into rule 1.442, would have a bearing on the amount of attorney fees awarded by the court." Sarkis, 863 So.2d at 221 (footnote omitted; emphasis added). (The section has been renumbered as 768.79(7)(b) in 1990 when the statute was amended.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/240358/ | 237 F.2d 169
Charles T. HENDERSON, Jr., George Truitt Robbins and John B. Dees, Appellants,v.UNITED STATES of America, Appellee.
No. 15726.
United States Court of Appeals Fifth Circuit.
September 26, 1956.
Rehearing Denied October 23, 1956.
S. L. Scruggs, Parks M. Carmichael, Joseph A. McGowan, Gainesville, Fla., Charles A. Savage, James J. Caruso, Ocala, Fla., Zach H. Douglas, Jacksonville, Fla., W. N. Avera, Scruggs, Carmichael, Avera & McGowan, Gainesville, Fla., for appellants.
Hayford O. Enwall, Asst. U. S. Atty., Gainesville, Fla., Harrold Carswell, U. S. Atty., Tallahassee, Fla., for appellee.
Before HUTCHESON, Chief Judge, and RIVES and JONES, Circuit Judges.
RIVES, Circuit Judge.
1
Under 18 U.S.C. § 371, the three appellants were convicted of a conspiracy to violate certain sections of the Internal Revenue Code which proscribe the various activities connected with the distilling of non-taxpaid, or moonshine, whiskey. During the period of the alleged conspiracy, that is from August 15, 1954 to February 8, 1955, the appellant George Truitt Robbins was Sheriff of Levy County, Florida; the appellant Dees was a resident of Jacksonville, Florida, charged with having furnished financial backing for the illicit operations; and the appellant Henderson participated in the actual operation of the still.
2
Three other original defendants were not convicted. John C. Partin, an alleged go-between for the bribery of the sheriff was discharged on motion for judgment of acquittal. The jury returned verdicts of not guilty as to Luther M. White, who admitted furnishing financial aid to the operations but claimed entrapment, and as to Ernest C. Blair, a Supervisor for the Beverage Department of the State of Florida, charged with having accepted bribe money.
3
No brief has been filed, nor argument made, on behalf of the appellant Dees, but the Government does not move for dismissal of his appeal under Rule 22 of this Court, and we therefore consider his appeal on its merits along with each of the other two appeals.
4
Claude W. Wood, the principal or star witness for the Government, had been a policeman of Ocala, Marion County, Florida, and while so serving he was also a deputy sheriff of the County. He had, by request, resigned from the police force, after which he moved to Gainesville, Florida, where he worked as a roofer for several months and drove a taxicab for about a month. While Wood was in Gainesville, another Marion County deputy sheriff solicited his aid in the detection of liquor law violators in Marion County, which adjoins Levy County.
5
Thereafter, in August, 1954, Wood made several trips to see Henderson at Henderson's home some 16 miles east of Ocala, and talked to him about going into the moonshine whiskey business. On the first two occasions, at least, Henderson refused, but he finally succumbed, and he and Wood agreed to go into the moonshine business. Wood then returned to Marion County where he and his wife stayed at the home of his father and mother.
6
In early September, 1954, the Sheriff of Marion County and some of his deputies carried Wood to a series of conferences with C. M. Starry, District Supervisor of the Florida State Beverage Department, who had the responsibility of supervising the enforcement of the state beverage laws in ten counties, including the counties of Marion and Levy. Ernest C. Blair, a defendant in the case discharged by verdict of not guilty, was one of seven supervisors who worked under Starry. As a result of these conferences with Starry, Wood was, on September 9, 1954, secretly appointed a Special Investigator for the Office of the Attorney General of Florida.
7
Wood testified that Henderson knew of a still pot and condenser in Putnam County which he said belonged to J. B. Dees, one of the appellants; that, on October 6th, Henderson accompanied Wood to Jacksonville to see Dees; that there they arranged for the use of the still pot and condenser and Dees advanced them $107.00 with which to set up some fermenter barrels for him at the still site; that it was at Dees' directions that the place of operations was changed from Marion to Levy County.
8
On October 12, Henderson and Wood made their "first run", producing seven five-gallon jugs of whiskey. Successive runs were made on October 16, 21, 23, 26 and 27th, November 9 and thereafter. The site of the still was moved twice.
9
The Federal Government did not enter into the investigation until December 27, when Criminal Investigator William D. Behan of the Alcohol and Tobacco Tax Unit of the Treasury Department, stationed at Miami, was assigned by the Investigator in Charge to assist Wood in the investigation. Under the alias of Forest Crooke, Behan thereafter participated in the illicit operations. Behan was able to give positive testimony connecting Henderson with the operation of the still, Dees with its financing, and Robbins with being bribed to furnish protection in his capacity as Sheriff.
10
No evidence was offered on behalf of Dees. Henderson admitted his participation in the operation of the illicit distillery, but denied that he had contacted Dees or was otherwise a party to the conspiracy. His principal defense was that he had been entrapped by Wood.
11
Without dispute, Wood did induce Henderson to enter into the operation of the illicit still, and Henderson was at first reluctant to join. It further appears that, though Wood had resigned as a police officer of the City of Ocala, he had retained his card as deputy sheriff and was qualified and acting as such, and made use of that office in persuading Henderson to enter into the moonshine whiskey business. Nevertheless, the district court declined to charge on entrapment as to Henderson, apparently upon the theory that Henderson denied that he was a party to the conspiracy, and thereby precluded himself from relying on entrapment.1
12
The reasoning of the district court was, of course, correct to the extent that the fact that Henderson had committed illegal acts which furthered the object of the conspiracy did not constitute him a conspirator unless he did so with some knowledge of the conspiracy,2 and, hence, that Henderson, denying that he was a party to or knew of the conspiracy, could not with entire consistency claim that he was entrapped into committing that offense. The district court may well have relied upon the language of this Court in Hamilton v. United States, 5 Cir., 221 F.2d 611, 614:
13
"Entrapment is a valid, positive defense, in certain circumstances, the invocation of which necessarily assumes that the act charged was committed. 22 C.J.S., Criminal Law, § 45."
14
The actual holding in that case was that the appellant was entitled to have the issue of entrapment properly submitted to the jury. Other courts have, however, definitely held that a defendant's denial of one specific act charged, such as a sale of whiskey,3 or a sale or possession of narcotics,4 would necessarily preclude him from relying on the defense of entrapment.
15
Rule 8(e) (2) of the Federal Rules of Civil Procedure, 28 U.S.C.A. provides that a party may plead as many separate defenses as he has "regardless of consistency". No similar provision occurs in the Federal Rules of Criminal Procedure, and, indeed, no such provision would be appropriate in view of the fact that all possible defenses not raised by appropriate motion are embraced within the plea of not guilty. Rule 12 (a), Federal Rules of Criminal Procedure, 18 U.S.C.A. Indeed, long prior to the adoption of those rules, it had been settled that the defense of entrapment was raised by the plea of not guilty. Sorrells v. United States, 287 U.S. 435, 452, 53 S. Ct. 210, 77 L. Ed. 413. The fact, however, that such a plea raised both issues, that is, that Henderson did not enter into the conspiracy charged and that he was entrapped so to do, does not necessarily mean that he can rely upon both defenses, but simply changes the form of the question by transferring it from the pleadings to the proof. Substantially, the question remains the same.
16
Corpus Juris states the rule in criminal cases as follows:
17
"While there is authority to the contrary, it is generally held that inconsistent defenses may be interposed in a criminal case. Accordingly, the fact that one defense is on the theory that accused did not commit the offense, as where he relies on alibi, does not deprive him of the right to avail himself of other defenses, although based on the theory of justification or excuse." 22 C.J.S. Criminal Law, § 54, p. 118.
18
To like effect is Abbott, Criminal Trial Practice (4th ed., 1939) § 371, p. 675.
19
The common goals of all trials, civil and criminal, of issues of fact is to arrive at the truth, and it would seem that inconsistent positions should be permitted or not permitted according to whether they might help or hinder a search for the truth. Perhaps that may depend upon the degree of inconsistency.
20
In most common law jurisdictions, prior to the advent of statutes or rules like the Federal Rules of Civil Procedure, the admissibility of inconsistent pleadings in civil actions depended upon their degree of inconsistency. With ample citations of authority, the rule is thus stated in 71 C.J.S., Pleading, § 125, pp. 275, 276:
21
"The test of inconsistency inhibited, whether merely an inconsistency or an inconsistency that is contradictory or repugnant, is whether the proof of one necessarily disproves the other. It is no test that if one is proved the other is unnecessary. * * *"
22
See also, 41 Am.Jur., Pleading, §§ 47, 48.
23
If the evidence fails to prove by the required standard that the defendant committed the act charged or had the requisite criminal intent, then, of course, the defense of entrapment is unnecessary. See Sassnett v. State, 156 Fla. 490, 23 So. 2d 618. Usually, however, that cannot be foretold when the proof is being offered in advance of the jury's verdict. Then, according to the circumstances and the nature of the case, proof of entrapment may or may not be so contrary or repugnant to proof that the defendant is otherwise not guilty, or rather to a lack of the required proof that the defendant is otherwise guilty, that the proof of the one necessarily disproves the other. For example, in the cases cited in footnotes 3 and 4, supra, it was held that the defendant's denial of the single specific act charged precluded him from relying on the defense of entrapment. On the other hand, in the Florida case of Sassnett v. State, supra, the court held that the proof failed to establish the requisite criminal intent to steal the bull, but strongly intimated that, if the defense of entrapment had been needed, it would have been available because of the activities of the constable in first inducing the defendant to take the bull out of pound and then arresting him for larceny. So here, it seems to us that the defendant could admit operating the illicit still, deny being a party to the conspiracy charged, and still defend on the ground that such overt acts as he did commit were done as a result of entrapment; he could say, "I did not go so far as to become a party to the conspiracy, but to the extent that I did travel down the road to crime, I was entrapped." The two defenses do not seem to us so repugnant that proof of the one necessarily disproves the other. Whether a greater degree of inconsistency in defenses should be permitted need not be decided in this case. We hold that the district court was not justified in declining to charge on entrapment as to Henderson by the theory which it assigned (footnote 1, supra).
24
Was there another reason, a sound reason, which would justify that action of the district court? The authoritative exposition of the doctrine of entrapment as applied in the federal courts is contained in the case of Sorrells v. United States, 287 U.S. 435, 53 S. Ct. 210, 77 L. Ed. 413; see United States v. Sherman, 2d Cir., 200 F.2d 880, 882. Speaking for the minority, consisting of himself and Justices Brandeis and Stone, Justice Roberts thought the defense was based upon the following rationale:
25
"Always the courts refuse their aid in civil cases to the perpetration and consummation of an illegal scheme. Invariably they hold a civil action must be abated if its basis is violation of the decencies of life, disregard of the rules, statutory or common law, which formulate the ethics of men's relations to each other. Neither courts of equity nor those administering legal remedies tolerate the use of their process to consummate a wrong. The doctrine of entrapment in criminal law is the analogue of the same rule applied in civil proceedings. And this is the real basis of the decisions approving the defense of entrapment, though in statement the rule is cloaked under a declaration that the government is estopped or the defendant has not been proved guilty." Sorrells v. United States, supra, 287 U.S. at page 455, 53 S.Ct. at page 217.
26
Chief Justice Hughes, speaking for the Court, concluded his exposition of the rationale of the defense as follows:
27
"The defense is available, not in the view that the accused though guilty may go free, but that the government cannot be permitted to contend that he is guilty of a crime where the government officials are the instigators of his conduct. The federal courts in sustaining the defense in such circumstances have proceeded in the view that the defendant is not guilty. The practice of requiring a plea in bar has not obtained. Fundamentally, the question is whether the defense, if the facts bear it out, takes the case out of the purview of the statute because it cannot be supposed that the Congress intended that the letter of its enactment should be used to support such a gross perversion of its purpose." Sorrells v. United States, supra 287 U.S. at page 452, 53 S.Ct. at page 216.
28
See also, Demos v. United States, 5 Cir., 205 F.2d 596, 599.
29
The majority opinion in Sorrells v. United States, supra, is, of course, binding upon this Court. There it is made clear that the defense of entrapment is permitted not because the defendant is justified or excused on account of having been induced to commit the crime, but because the Court reads out of the definition of the crime itself cases where a person otherwise innocent has been induced by officers of the law to commit the crime in order that he might be prosecuted. To quote further from that opinion:
30
"We are unable to conclude that it was the intention of the Congress in enacting this statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them. We are not forced by the letter to do violence to the spirit and purpose of the statute. This, we think, has been the underlying and controlling thought in the suggestions in judicial opinions that the government in such a case is estopped to prosecute or that the courts should bar the prosecution. If the requirements of the highest public policy in the maintenance of the integrity of administration would preclude the enforcement of the statute in such circumstances as are present here, the same considerations justify the conclusion that the case lies outside the purview of the act and that its general words should not be construed to demand a proceeding at once inconsistent with that policy and abhorrent to the sense of justice. This view does not derogate from the authority of the court to deal appropriately with abuses of its process and it obviates the objection to the exercise by the court of a dispensing power in forbidding the prosecution of one who is charged with conduct assumed to fall within the statute." Sorrells v. United States, supra 287 U.S. at pages 448-449, 53 S.Ct. at page 215.
31
Again, that opinion expressed the controlling question as follows:
32
"* * * the issues raised and the evidence adduced must be pertinent to the controlling question whether the defendant is a person otherwise innocent whom the government is seeking to punish for an alleged offense which is the product of the creative activity of its own officials. If that is the fact, common justice requires that the accused be permitted to prove it. The government in such a case is in no position to object to evidence of the activities of its representatives in relation to the accused, and if the defendant seeks acquittal by reason of entrapment he cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing upon that issue." Sorrells v. United States, supra 287 U.S. at page 451, 53 S.Ct. at page 216.
33
We have been cited to no case and have found none passing upon the question of whether the defense of entrapment can be sustained by proof of acts of inducement on the part of a state officer not under the direction of or in collaboration with any federal officer. Some pertinent authority may not have been discovered because that question has not been raised in brief or argument. The present record, however, does present for decision whether the answer to that question might furnish a sound basis for the action of the district court in declining to charge on entrapment as to Henderson. Hence, at the risk of raising a straw man to knock him down, we proceed to consider that question.
34
Well settled, of course, it is that the doctrine of entrapment does not extend to acts of inducement on the part of a private citizen who is not an officer of the law. Kott v. United States, 5 Cir., 163 F.2d 984, 987. Jindra v. United States, 5 Cir., 69 F.2d 429, 431; Gargano v. United States, 5 Cir., 24 F.2d 625; Newman v. United States, 9 Cir., 28 F.2d 681, 682; Polski v. United States, 8 Cir., 33 F.2d 686, 687; Beard v. United States, 8 Cir., 59 F.2d 940, 941. There are expressions in Sorrells v. United States, supra, and in some of the cases just cited, which indicate that the doctrine of entrapment can be invoked only where the Government, acting through some of its own officers or agents, is chargeable with inducing the commission of the offense. See also, United States v. Sherman, 2d Cir., 200 F.2d 880, 882. On the other hand, some expressions in Sorrells v. United States, supra, and in some of those cases and the language of other authorities, are broad enough to include within the defense the acts of all officers of the law, state and federal, in inducing a person otherwise innocent to commit a crime in order that he might be punished therefor. See Butts v. United States, 8 Cir., 273 F. 35, 18 A.L. R. 143; 15 Am.Jur., Criminal Law, § 336. Expressions either way, however, not called for by the facts or circumstances of the case, are no more than dicta, entitled to weight only in so far as the reasons therefor may justify the language used; and, apparently, in none of the cases has the court had the distinction here presented so clearly in mind as to express its reasons for a ruling one way or the other. The language employed in the decisions is, therefore, of little help to us.
35
The apparent analogy which comes most readily to mind is the doctrine of the search and seizure cases under which evidence obtained by an illegal search or seizure by state officers, not made for the purpose of aiding in the prosecution of a federal offense, and in which no federal officer has taken any part, is admissible notwithstanding the illegality of the search or seizure. Boyd v. United States, 116 U.S. 616, 618, 6 S. Ct. 524, 29 L. Ed. 746; Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 58 L. Ed. 652; Byars v. United States, 273 U.S. 28, 47 S. Ct. 248, 71 L. Ed. 520; Gambino v. United States, 275 U.S. 310, 313, 316, 317, 48 S. Ct. 137, 72 L. Ed. 293; Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782; Lustig v. United States, 338 U.S. 74, 69 S. Ct. 1372, 93 L. Ed. 1819; Rea v. United States, 350 U.S. 214, 216, 217, 76 S. Ct. 292. Those cases, however, rest upon reasoning not here applicable, principally upon disciplinary considerations tending to practical respect for the Fourth Amendment. True, those cases are based also on the conclusion that state officers, under such circumstances, are not agents of the Federal Government.
36
The former jeopardy cases would seem to establish that, in the enforcement of their criminal laws, the state and federal governments occupy the positions of separate sovereignties. 15 Am.Jur., Criminal Law, § 394, and cases there cited.
37
It can plausibly be argued that, since the United States and the States are each autonomous, and the employees of the one are not the agents of the other, the defense of entrapment to commit a crime against the United States cannot be based upon acts of inducement by a state officer. In our opinion, however, that conclusion does not necessarily follow. State officers do not stand in the same relation to the United States as if they were private citizens, or were officers of a foreign sovereignty. To the contrary, all executive officers of the several states are bound by oath or affirmation to support the Constitution of the United States. Art. VI, Clause 3 of the Constitution; 4 U.S.C.A. § 101.
38
It was at an early date questioned whether the Congress could constitutionally impose upon state officers the power and duty to enforce federal criminal law, Prigg v. Pennsylvania, 16 Pet. 539, 615, 10 L. Ed. 1060; but that issue has now been settled in the affirmative upon the basis of the supremacy clause, and of "the fact that the States of the Union constitute a nation." Testa v. Katt, 330 U.S. 386, 389, 67 S. Ct. 810, 812, 91 L. Ed. 967. There the Court definitely "repudiated the assumption that federal laws can be considered by the states as though they were laws emanating from a foreign sovereign." 330 U.S. at pages 390, 391, 67 S.Ct. at page 813.
39
In the present instance, Congress has imposed no affirmative duty upon the state officers to enforce the federal criminal law. It was, nevertheless, entirely proper and permissible for the state officers to cooperate to that end. In the language of Mr. Justice McKenna speaking for the Court in Hoke v. United States, 227 U.S. 308, 322, 33 S. Ct. 281, 284, 57 L. Ed. 523:
40
"Our dual form of government has its perplexities, state and nation having different spheres of jurisdiction, as we have said; but it must be kept in mind that we are one people; and the powers reserved to the states and those conferred on the nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral."
41
Professor Corwin has well remarked (Constitution of the United States of America, Revised and Annotated, 1952, at page 739): "Nowadays, there is constant cooperation, both in peacetime and in wartime, in many fields between National and State Officers and official bodies." While state officers are not agents of the United States, yet under the cooperative conception of the federal system, they bear to the Government a much closer relationship than strangers.
42
The just rule seems to us to be that, when a state officer has induced a person otherwise innocent to commit a crime in order to punish him therefor, the United States cannot take over the task of punishment by prosecuting for the federal offense without allowing the defense of entrapment, the same as if the inducement had been by a federal officer. The moral wrong in each instance is equally grave, and each is equally outside of and contrary to the spirit of the statute defining the federal offense. In our opinion, the same high public policy in the maintenance of the integrity of administration which precludes the enforcement of a federal criminal statute, when Government officials have lured persons otherwise innocent to its violation in order that they might be punished, is sufficiently broad to include acts of inducement on the part of all officers of the law, state and federal alike. We, therefore, find no sound basis for the action of the district court in declining to charge on entrapment as to Henderson.
43
Robbins admits his acceptance of the bribe money and having promised protection for the moonshine operation, as testified to by Wood and Behan, but defends on the ground that he had no criminal intent. He insists that he was merely feigning participation in the conspiracy to lay a trap for the "big boys", the financial backers of the criminal activities. To corroborate his contentions as to his good faith activity as a law enforcement officer, he produced the jailer, several members of the sheriff's force, a local constable, a policeman, and a county judge, all of whom to some extent substantiated his claims of having reported the substance of his interviews with Wood and Behan, his receipt of their bribe money, and its preservation as evidence against them. However, there is other evidence showing that, during the several months of his participation in the scheme, Robbins never reported the existence or progress of his own investigation to any state or federal officials charged with any independent responsibility and duty of liquor law enforcement, nor did he ever arrest any of the participants in the actual illicit distilling operations even though he admittedly knew who they were and apparently had ample opportunity to do so. On the contrary, according to the testimony presumably believed by the jury, his participation was not solely for the purpose of passive surveillance to catch the "big boys", but actually extended to actively aiding and abetting of the illegal activities, in violation of federal law and in such manner as to subject himself to prosecution therefor, by warning the actual operators when it was advisable to move the still, leaving a red string or flag near the still site as a danger signal to let them know it was under observation, and, after the last raid in early January, 1955, advising them to "lay low" for awhile, change their car tags and paint their cars a different color just in case they had been under observation at the still site. The jury was justified in finding Robbins' own claims inconsistent and contradictory, for Robbins testified that he intended to arrest Wood as soon as Wood brought him a promised five-gallon jug of "shine", and at the same time insisted that he was not after the actual operators, but only waiting to catch the "big boys" from whom they received their financial backing, even though the testimony fails to justify any reasonable expectation that the "big boys" would ever appear. Furthermore, he did not arrest White even after White told him that he was financing the moonshine operation, and, while White as a newcomer to the business may not have been one of the "big boys" for whom Robbins was professedly waiting, the jury could consider his failure to arrest White in ascertaining the consistency and sincerity of his contentions. The jury had the benefit of seeing and hearing Robbins and his witnesses testify, and was in a better position to judge of their credibility than is this Court. There is abundant evidence to sustain its verdict.
44
The judgments of conviction against Dees and Robbins are affirmed, and that against Henderson is reversed, and his case is remanded for a new trial.
45
Affirmed in part and in part reversed and remanded.
Notes:
1
"The Court: I am going to deny your requested charge on entrapment because entrapment insofar as Henderson is concerned I do not think it is applicable to him. I am going to tell the jury insofar as he is concerned he denied every overt act with which he is charged in this indictment other than those that connect him with the operation of the stills."
The district court charged the jury as follows:
"An overt act alone, without an unlawful agreement or understanding, is not a criminal conspiracy. In other words, Mr. Henderson has here based his defense entirely on the fact that while he committed these overt acts of assisting in the setting up of a still and in the manufacture of moonshine he knew nothing about the conspiracy, he didn't see Partin, he didn't see the Sheriff, he didn't see Blair, he didn't do any of those other things that he is charged with doing in the indictment, and which the Government witnesses testified that he did do. Now, don't you see when you come to Henderson how it narrows down to what you have got to consider in this case to determine his guilt or innocence. If you believe the Government witnesses insofar as his activities in the other respects and disregard his testimony, then he was a party to the conspiracy. If you have a reasonable doubt as to whether or not he participated in any other acts other than the mere operation of the still and the manufacture of moonshine whiskey, then he wouldn't be guilty of this conspiracy."
2
United States v. Falcone, 311 U.S. 205, 210, 61 S. Ct. 204, 85 L. Ed. 128; cf. Hunnicutt v. United States, 5 Cir., 149 F.2d 888, 889, 890
3
State v. Parr, Mont., 283 P.2d 1086
4
People v. Schwartz, 109 Cal. App. 2d 450, 240 P.2d 1024, 1027; People v. Johnson, 99 Cal. App. 2d 559, 222 P.2d 58, 59; People v. Lee, 9 Cal. App. 2d 99, 48 P.2d 1003, 1007; Accord: Nutter v. United States, 4 Cir., 289 F. 484; Annotation 33 A.L.R. 2d 886 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1597736/ | 818 So.2d 615 (2002)
M.Q., a Child, Appellant,
v.
STATE of Florida, Appellee.
No. 5D01-713.
District Court of Appeal of Florida, Fifth District.
May 31, 2002.
*616 James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Alfred Washington, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
SHARP, W., J.
M.Q. appeals from an order in a delinquency proceeding which committed him to a moderate-risk, residential placement, after he pled guilty to a violation of conditions of his community control. His guilty plea was entered on February 5, 2001, and his commitment was rendered on February 19, 2001. M.Q. argues on appeal that the plea and the commitment violate Florida Rule of Juvenile Procedure 8.165, as well as his federal and state constitutional rights to counsel,[1] because the trial court failed to properly offer him counsel at the February 19, 2001 hearing, and failed to adequately inquire into his waiver of counsel at both hearings. We agree and reverse.
These were the latest in a series of M.Q.'s juvenile court appearances for different acts of delinquency and violations of probation and community control. The prior proceedings involved different judges and counties, beginning in February 2000 when M.Q. pled guilty to auto theft before Judge Nelson in Seminole County. Some of the transcripts of these earlier hearings are contained in the record. With the exception of the first hearing before Judge Nelson, the transcripts indicate that M.Q. was not properly advised of his right to counsel at these proceedings.[2] One proceeding even involved an en masse group *617 advisement of rights by the trial judge.[3] For this reason we write again on the duties and responsibilities of trial judges with regard to offering legal representation in juvenile proceedings.
Juveniles must be offered legal representation at each critical stage of the proceedings.[4]See T.S. v. State, 773 So.2d 635 (Fla. 5th DCA 2000); A.G. v. State, 737 So.2d 1244 (Fla. 5th DCA 1999); A.D. v. State, 740 So.2d 565 (Fla. 5th DCA 1999). This includes, inter alia, at the plea and dispositional hearings. If counsel is waived by a child, the record must demonstrate that the waiver was freely and intelligently given. See State v. B.P., 810 So.2d 918 (Fla.2002); V.S.J. v. State, 793 So.2d 104 (Fla. 2d DCA 2001). Courts should be even more careful when accepting a waiver of counsel from a juvenile than in cases involving adults, and the inquiry for juveniles must be at least equal to that accorded adults. See State v. T.G., 800 So.2d 204 (Fla.2001); K.M. v. State, 448 So.2d 1124, 1125 (Fla. 2d DCA 1984).
Rule 8.165 sets out the duties and responsibilities of trial judges in juvenile proceedings and provides:
(a) Duty of the Court. The court shall advise the child of the child's right to counsel. The court shall appoint counsel as provided by law unless waived by the child at each stage of the proceeding. This waiver shall be in writing if made at the time of a plea of guilty or no contest or at the adjudicatory hearing.
(b) Waiver of Counsel.
(1) The failure of a child to request appointment of counsel at a particular stage in the proceedings or the child's announced intention to plead guilty shall not, in itself, constitute a waiver of counsel at any subsequent stage of the proceedings.
(2) A child shall not be deemed to have waived the assistance of counsel until the entire process of offering counsel has been completed and a thorough inquiry into the child's comprehension of that offer and the capacity to make that choice intelligently and understandingly has been made.
(3) No waiver shall be accepted where it appears that the party is unable to make an intelligent and understanding choice because of mental condition, age, education, experience, the nature of complexity of the case, or other factors.
(4) If a waiver is accepted at any stage of the proceedings, the offer of assistance of counsel shall be renewed by the court at each subsequent stage of the proceedings at which the party appears without counsel. (Emphasis added).
The Rule is not merely procedural in nature. It contains guidelines to ensure that a juvenile's substantive right to counsel is protected. T.G. It requires the trial court to advise a juvenile of the right to counsel and to appoint counsel unless waived. The waiver must be in writing if made at the time of a plea of guilty or no contest. If a child waives counsel, the Rule states that the court may not deem it a waiver until a thorough inquiry into the child's comprehension of *618 the offer and the child's capacity to make that choice both intelligently and understandingly, has been made. The offer must be renewed at subsequent stages of the proceeding. Even though a juvenile does not request counsel, the trial court must comply with the Rule. T.G.
On February 5, 2001, M.Q. appeared before Judge Johnston in Seminole County after he violated his community control by testing positive for THC. The transcript of that hearing reveals the following discussion between the judge and M.Q.:
JUDGE: Would it be your desire that you need to have an attorney, or would you like to represent yourself on that one?
M.Q. I'll represent myself.
JUDGE: Would you like to enter a plea of guilty or not guilty?
M.Q. Guilty.
The judge then swore in M.Q. and asked him whether anyone had promised him anything to get him to enter the plea. He responded "no." The judge asked M.Q. if he understood that by entering the plea he was subjecting himself to the jurisdiction of the juvenile court. M.Q. responded "yes." The judge then began asking M.Q. questions concerning the basis for his plea.
Although the judge made an offer of counsel at this hearing, the inquiry was insufficient to satisfy the rule as to what M.Q.'s substantive rights were (as well as whether he knowingly waived them). The requirement is one of detailed inquiry, because it is "extremely doubtful that any child of limited experience can possibly comprehend the importance of counsel." See T.G.; P.L.S. v. State, 745 So.2d 555, 557 (Fla. 4th DCA 1999), quoting G.L.D. v. State, 442 So.2d 401, 404 (Fla. 2d DCA 1983).
At the February 19, 2001 hearing, M.Q. was again unrepresented, but the judge merely imposed the commitment. There was no offer of counsel, and no basis to conclude that M.Q. made an informed waiver of his right to counsel.
The state concedes that the trial court failed to follow the dictates of Rule 8.165. See E.C.H. v. State, 751 So.2d 776 (Fla. 5th DCA 2000); A.P. v. State, 730 So.2d 425 (Fla. 5th DCA 1999); D.L. v. State, 719 So.2d 931 (Fla. 5th DCA 1998). But it argues that because M.Q. failed to file a motion to withdraw his plea, this appeal is not cognizable, since such a motion is a prerequisite to a direct appeal challenging the voluntariness of a plea. Robinson v. State, 373 So.2d 898, 902 (Fla.1979), distinguished, State v. T.G., 800 So.2d 204 (Fla. 2001).
A trial court's failure to make or renew the offer of counsel and conduct a thorough inquiry into a juvenile's comprehension of the offer constitutes fundamental error. T.G.; T.M. v. State, 811 So.2d 837 (Fla. 4th DCA 2002). If the waiver of counsel is invalid, a guilty plea entered without the advice of counsel, is involuntary as a matter of law. T.G. Further, in T.G., the supreme court held that where a juvenile is not represented by counsel and the appellate court can discern from the record that the judge failed to conduct a thorough inquiry into the juvenile's waiver of his or her right to counsel, fundamental error occurs and the juvenile may appeal despite failing to file a motion to withdraw a plea.
In this case, M.Q. was not represented by counsel at either the time of his plea or his commitment. The record reveals that the trial court failed to offer M.Q. counsel at the commitment hearing and failed to properly inquire into M.Q.'s waiver of his right to counsel at both hearings.
*619 Therefore, the order must be vacated and this cause remanded for further proceedings,[5] including entry of a new plea, if appropriate. B.P.
Order VACATED; REMANDED.
THOMPSON, C.J., and PALMER, J., concur.
NOTES
[1] U.S. Const. amend. VI; Fla. Const., art. I, § 16.
[2] Orders rendered in these earlier proceedings were not appealed and this court has no jurisdiction to review them.
[3] See V.S.J. v. State, 793 So.2d 104 (Fla. 2d DCA 2001) where the second district rejected this process.
[4] The sixth amendment's right to counsel for one's defense is accorded not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. See Mickens v. Taylor, ___ U.S. ___, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), quoting, U.S. v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).
[5] We note that M.Q.'s specific argument on appeal is that the procedure at the hearings violated his constitutional rights, not that he should be permitted to withdraw his plea. We find this to be a matter of semantics because the February 19, 2001 order is based on the guilty plea, and the appeal de facto incorporates the plea. Thus, in vacating the order, we are also vacating the plea. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597824/ | 3 So.3d 963 (2007)
EX PARTE NATHANIEL HARRIS
No. 1060590 (CR-05-1837).
Supreme Court of Alabama.
March 9, 2007.
Decision of the supreme court of alabama without opinion. Cert. denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597830/ | 818 So.2d 544 (2002)
Rebecca TAYLOR, Appellant,
v.
STATE of Florida, Appellee.
No. 2D01-1751.
District Court of Appeal of Florida, Second District.
January 23, 2002.
Rehearing Denied April 23, 2002.
*546 James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
NORTHCUTT, Judge.
On May 9, 2000, Rebecca Taylor trafficked in 14 or more but less than 28 grams of methamphetamine, violating section 893.135(1)(f)(1)(a), Florida Statutes (1999). She was charged with the crime, and in January 2001 she entered an open plea of no contest. At her sentencing hearing, she argued that the court should not impose a three-year minimum mandatory prison term because chapter 99-188, Laws of Florida, which amended section 893.135 to impose that penalty for her crime, violated the single subject rule contained in Florida's constitution. The circuit court rejected Taylor's assertion and sentenced her to forty months' imprisonment, including the minimum mandatory term. On appeal Taylor again challenges her sentence by attacking the constitutionality of chapter 99-188.[1] We agree that this law violated the single subject rule, and we reverse Taylor's sentence.
The single subject rule provides, in pertinent part, that "[e]very law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title." Art. III, § 6, Fla. Const. In State v. Thompson, 750 So.2d 643 (Fla.1999), our supreme court reiterated the three purposes of the rule:
(1) to prevent hodge podge or "log rolling" legislation, i.e., putting two unrelated matters in one act; (2) to prevent surprise or fraud by means of provisions in bills of which the titles gave no intimation, and which might therefore be overlooked and carelessly and unintentionally adopted; and (3) to fairly apprise the people of the subjects of legislation that are being considered, in order that they may have opportunity of being heard thereon.
Id. at 646 (quoting State ex rel. Flink v. Canova, 94 So.2d 181, 184 (Fla.1957)). The Thompson court also quoted its previous decision in State v. Lee, 356 So.2d 276 (Fla.1978), to the effect that the single subject rule is designed "to prevent `logrolling' where a single enactment becomes a cloak for dissimilar legislation having no necessary or appropriate connection with the subject matter." Thompson, 750 So.2d at 646-47.
Chapter 99-188 has thirteen sections, the first of which provides that the act may be cited as the "Three Strikes Violent Felony Offender Act." In fact, only sections 3 and 6 actually relate to "three strikes" provisions: section 3 amends section 775.084, Florida Statutes (Supp.1998), to define a "three-time violent felony offender" and to impose minimum mandatory prison terms for felons sentenced as such; section 6 changes a reference to section 775.084 in section 790.235, Florida Statutes (1997), to conform to the "three-strikes" amendment. Ch. 99-188, § 1, at 1040; § 3, at 1042-50; § 6, at 1051-52, Laws of Fla.
Most of the remaining sections address sentences, primarily those to be imposed on violent or repeat felony offenders. Section 2 amends the prison releasee reoffender portion of section 775.082, Florida Statutes (Supp.1998); section 4 amends *547 section 784.07, Florida Statutes (Supp. 1998), to add minimum mandatory terms for assault and battery on certain public employees; section 5 adds a minimum mandatory term for a conviction of assault or battery on a person sixty-five years of age or older under section 784.08, Florida Statutes (1997); section 9, which affected Taylor's sentence, amends section 893.135, Florida Statutes (1997), to require minimum mandatory sentences for trafficking in certain amounts of illegal drugs; section 10 conforms numerous statutes to the amendment made in section 9 of the act; and section 12 requires the governor to place announcements in local media explaining the penalties provided in the act. Ch. 99-188, § 2, at 1040-42; § 4, at 1050-51; § 5, at 1051; § 9, at 1056-62; § 10, at 1062-81; § 12, at 1081, Laws of Fla.
Three sections in the act involve substantive criminal provisions. Section 7 creates the new offense of repeat sexual batterer, section 794.0115, Florida Statutes (1999), and section 8 amends section 794.011, Florida Statutes (1997), to conform to the new crime created in section 7. Section 13 amends the definition of a conveyance in the burglary statute, section 810.011, Florida Statutes (1997). Ch. 99-188, § 7, at 1052-53; § 8, at 1053-56; § 13, at 1081, Laws of Fla.
Finally, section 11 amends section 943.0535, Florida Statutes (1997), concerning the administrative duty of the clerk of court to provide criminal records to United States immigration officers. Ch. 99-188, § 11, at 1081, Laws of Fla.
Our task is to decide whether these thirteen provisions address a single subject as required by the constitution. We recognize that "[t]he subject of an act `may be as broad as the legislature chooses as long as the matters included in the act have a natural or logical connection.'" Chenoweth v. Kemp, 396 So.2d 1122, 1124 (Fla.1981) (quoting Bd. of Pub. Instruction v. Doran, 224 So.2d 693, 699 (Fla.1969)), receded from on other grounds, Sheffield v. Superior Ins. Co., 800 So.2d 197 (Fla. 2001). When searching for the natural or logical connection between an act's provisions, courts often look to its preamble, in which the legislature may have identified a crisis or stated a broad purpose that ties the sections together. See Burch v. State, 558 So.2d 1, 2-3 (Fla.1990) (holding that even though chapter 87-243, Laws of Florida, addressed three separate areascriminal regulations and procedures, money laundering, and safe neighborhoodsit did not violate the single subject rule because the preamble identified a general crisis resulting from a rapidly increasing crime rate that reached beyond the criminal justice system to cause deterioration of businesses, schools, communities, and families); Smith v. Dep't of Ins., 507 So.2d 1080 (Fla.1987) (explaining that chapter 86-160, Laws of Florida, did not violate the single subject rule because the legislature identified a crisis in the insurance industry, to which the tort system contributed, thus provisions addressing insurance regulation and tort reform were properly contained in the same act).
Chapter 99-188 contains a lengthy preamble[2] that evinces the legislators' *548 concern with the crime rate in Florida and the fact that felons, particularly violent and repeat offenders, are not being sentenced to the maximum prison terms allowed under Florida law. Unlike the preamble to the legislation in Burch, this one does not identify a crisis involving the general crime rate. If any crisis can be inferred, it concerns sentencing. Indeed, most of the sections in this act address sentencing and impose minimum mandatory terms. See ch. 99-188, §§ 2, 3, 4, 5, 9. *549 The sections do not all concern both violent and repeat offenders, as implied in section 1, but they clearly deal with one subject and are logically connected. Further, although section 7 is not strictly a sentencing provision, it does create an offense involving repeat crimes of violence, punishable by a minimum mandatory prison term. Additionally, sections 6, 8, 10, and 12 merely implement the changes made in the act. We have no difficulty finding that these mentioned sections address a single subject because they are naturally and logically related to each other and to the legislatively stated purpose of the act.
In contrast, section 13 is not naturally or logically connected to the act's other sections. It is not a sentencing provision, nor is it concerned with violent or repeat offenders. Rather, it simply amends the definition of a "conveyance" for purposes of the burglary statute to include a "railroad vehicle" as well as a railroad car. This slight expansion of a substantive criminal offense has only an attenuated relationship to sentencing or to the other sections of the act, in that it might be argued that under the broader definition of a conveyance more felons could be convicted of "armed burglary," one of the qualifying crimes for three-strikes sentencing. See ch. 99-188, § 3. But that relationship is so tenuous, so dependent on the happenstance of individual cases, that it simply cannot be characterized as natural or logical.
Moreover, the legislative history of the act reveals that the amendment to the conveyance definition occurred under circumstances that often lead to problems with the single subject rule. The bill that was eventually enacted as chapter 99-188 began in March 1999 as House Bill 121. It essentially contained what became sections 2 through 7 of the act. Fla. H.R. Jour. 27-28 (Reg.Sess.1999). After making several amendments on April 23, 1999, the House passed Committee Substitute for House Bill 121 on April 26, 1999. Id. at 1128-29, 1403. At that point, the bill contained all the sections in the present act, other than section 13. The House bill then met the Committee Substitute for Senate Bill 1746, which also contained all the sections in the present act other than the amendment to the burglary statute. The bill was referred to the Committee on Fiscal Policy, which recommended the amendment that became section 13 of the act. Fla. S. Jour. 351, 364-65 (Reg.Sess.1999). The bill, as amended, passed the Senate on April 28, 1999. Id. at 1276-92. Thus, it appears the addition of section 13 was an afterthought. This is exactly the type of "log rolling" legislation that the single subject rule was intended to prevent. The inclusion of section 13 in chapter 99-188 violated the single subject rule and rendered the entire chapter unconstitutional.
If anything, section 11 bears even less relationship to the act's other provisions. Chapter 99-188 is a criminal law aimed primarily at imposing harsher sentences on violent felons, repeat felony offenders, and drug traffickers. However, section 11 addresses a purely administrative subject that is far afield of the act's other provisions. This section amends section 943.0535, which requires the court clerk to provide documents concerning an alien's felony or misdemeanor convictions to immigration officers.
The inclusion of this noncriminal provision in a criminal sentencing enactment is analogous to the situation in Bunnell v. State, 453 So.2d 808 (Fla.1984), where the court held that legislation containing similarly unrelated provisions violated the single subject rule. The Bunnell court analyzed chapter 82-150, Laws of Florida, which created the crime of obstruction by *550 false information in section 1, and amended statutes relating to the Florida Council on Criminal Justice in sections 2 and 3. The court noted that "the object of section 1 is separate and disassociated from the object of sections 2 and 3." 453 So.2d at 809. The statutes concerning the Florida Council on Criminal Justice essentially described the council and set forth the council's duties. See § 23.15, .151, .152, .154,.155, Fla. Stat. (1981). Likewise, section 943.0535 describes a duty of court clerks. While the statutory duties of both of the bodies relate to crimes or criminal activities, the statutes do not create crimes or prescribe their punishments. As in other cases involving the combination of civil and criminal subjects in one act, the inclusion of section 11 in chapter 99-188 violates the single subject rule. See Thompson, 750 So.2d at 647-48; State v. Johnson, 616 So.2d 1, 4 (Fla.1993); Bunnell, 453 So.2d at 809. For this reason, the entire chapter is unconstitutional.
Having discerned that chapter 99-188 is unconstitutional, we must determine the window period for asserting a single subject challenge. The act became effective on July 1, 1999, so the window period opened on that date. As we will explain, it has not yet closed.
Generally, the window period for challenging a statute based on a single subject violation closes on the effective date of the legislature's biennial reenactment of the statutes affected by the legislation, which is deemed to cure single subject defects. See, e.g., Salters v. State, 758 So.2d 667, 671 (Fla.2000) (holding that window period for challenging chapter 95-182, Laws of Florida, opened when the chapter became effective and closed on May 24, 1997, the effective date of chapter 97-97, Laws of Florida, which reenacted the amendments contained in chapter 95-182). But the legislature evidently has never reenacted the 1999 statutes. In the 2001 regular legislative session, Senate Bill 274 was introduced to accomplish a traditional biennial reenactment of the 1999 statutes. But the House proposed to begin reenacting statutes annually. Its bill, House Bill 657, would have reenacted the 2000 statutes, not the 1999 statutes.[3] The two bodies never agreed, and the 2001 regular legislative session ended without passage of a bill reenacting the 1999 statutes.[4] We have reviewed the records of the 2001 special legislative sessions and can find no evidence that the legislature passed a bill reenacting the 1999 statutes in those sessions, either.
Because the legislature has not reenacted the 1999 statutes, we believe the window period for single subject rule challenges to chapter 99-188 is still open. But the Salters court noted that, in certain circumstances, a single subject rule violation may be cured by means other than the *551 biennial reenactment. 758 So.2d at 670. It recognized that in Martinez v. Scanlan, 582 So.2d 1167 (Fla.1991), the legislature cured a single subject problem by convening a special session, separating the disparate provisions contained in the offending chapter into two distinct bills and individually reenacting the two bills into law. Salters, 758 So.2d at 670. To determine whether the Scanlan exception to the general rule applied to chapter 95-182, the Salters court examined the 1996 amendments to various statutory provisions addressed in the act. It particularly focused on the 1996 amendments to the violent career criminal sentencing provisions contained in chapter 95-182, because that was the portion of the legislation that affected Salters. The court found that the 1996 revisions to the violent career criminal sentencing provisions were amendments rather than reenactments, and for that reason it held that the Scanlan exception did not apply.[5]Id. at 671.
Accordingly, we have examined the 2000 and 2001[6] legislative amendments to the statutes affected by chapter 99-188, particularly focusing on the revisions to section 893.135 under which Taylor was sentenced. Chapter 2000-320, section 4, at 3490-99, Laws of Florida, amended numerous subsections and subparagraphs of section 893.135, deleting language that required sentencing "pursuant to the Criminal Punishment Code" and inserting language providing instead that the crimes are "punishable as provided in s. 775.082, s. 775.083, or s. 775.084." Chapter 2000-320, section 4, also added new penalties for trafficking in gamma-hydroxybutyric acid, 1,4-Butanediol and other listed substances. Importantly, though, chapter 2000-320 did not change the minimum mandatory terms imposed in chapter 99-188. In 2001, the legislature again amended section 893.135. The first revision changed some internal statutory references and the second revision amended the portion of the statute, first added in 2000, that addressed trafficking in gamma-hydroxybutyric acid. Ch.2001-55, § 2, at 358-67, Laws of Fla.; ch.2001-57, § 7, at 399-403, Laws of Fla. As in Salters, these revisions were amendments to the statute, not reenactments of it.[7] Therefore, the 2000 and 2001 amendments *552 to section 893.135 did not close the window for Taylor's single subject challenge to chapter 99-188. The window period remains open.
We reverse Taylor's sentence and remand for resentencing in accordance with the valid laws in effect on the date of her offense. We also certify that our decision passes on the following questions of great public importance.
1. DOES CHAPTER 99-188, LAWS OF FLORIDA, VIOLATE ARTICLE III, SECTION 6, FLORIDA CONSTITUTION, WHICH PROVIDES THAT EVERY LAW SHALL EMBRACE BUT ONE SUBJECT AND MATTER PROPERLY CONNECTED THEREWITH?
2. IF SO, WHAT IS THE WINDOW PERIOD FOR CHALLENGING THE ACT BASED ON THAT CONSTITUTIONAL INFIRMITY?
BLUE, C.J., and GREEN, J., Concur.
NOTES
[1] Taylor preserved her single subject rule argument. She may appeal her sentence under Florida Rule of Appellate Procedure 9.140(b)(2)(B)(iv).
[2] WHEREAS, in 1996, Florida had the highest violent crime rate of any state in the nation, exceeding the national average by 66 percent, and
WHEREAS, although this state possessed the highest state violent crime rate in 1996 in the nation, the incarceration rate in this state in 1996 was less than the incarceration rate in at least eleven other states, all of which had a lower violent crime rate than the rate in this state, and
WHEREAS, since 1988, criminals in this state have committed at least 1.6 million violent crimes against Floridians and visitors to this state, and
WHEREAS, the per capita violent crime rate has increased 86 percent in this state in the last 25 years, and
WHEREAS, in fiscal year 1996-1997, over 16,000 violent felons in this state were sentenced to probation, community control, and other punishments that did not incarcerate the violent felon for the maximum prison term authorized by law, and
WHEREAS, during that same fiscal year, less than 9,900 violent felons were sentenced to prison, while during that same period criminals committed approximately 150,000 violent felonies, and
WHEREAS, in this state, as of June 30, 1997, more violent felons were on probation, community control, control release, or parole, than were in state prison, and
WHEREAS, in 1997, only 15.6 percent of all persons convicted of a felony were sentenced to state prison, the second lowest rate of incarcerated felons since 1984, and
WHEREAS, the rate of incarcerated felons has declined seven out of the last eight years, and
WHEREAS, since fiscal year 1993-1994, the per capita prison population rate in this state has increased 10 percent and the proportion of violent offenders incarcerated in state prison has increased 5 percent, and
WHEREAS, since 1995, the Florida Legislature has enacted stronger criminal punishment laws, including requiring all prisoners to serve 85 percent of their court-imposed sentences, and
WHEREAS, since 1994, the violent crime rate in this state has decreased 9.8 percent, and
WHEREAS, the Legislature previously has found that a substantial and disproportionate number of serous crimes are committed in this state by a relatively small number of repeat and violent felony offenders, that priority should be given to the incarceration of career criminals for extended prison terms, and that, in the case of violent career criminals, such extended terms must include substantial minimum terms of imprisonment, and
WHEREAS, as of June 30, 1997, only 71 designated "violent career criminals" have been sentenced to mandatary prison terms, out of a prison population of over 65,000 state inmates; and this number does not approach the true number of repeat violent felony offenders in this state, and
WHEREAS, to be sentenced as a "violent career criminal," a felon must be convicted of a least four violent, forcible, or serious felonies and must have served a prison term, and
WHEREAS, current law does not require the courts to impose mandatory prison terms on violent felons who commit three violent felonies, and these three-time violent felony offenders should be sentenced to mandatary maximum prison terms to protect citizens of this state and visitors, and
WHEREAS, studies such as the recent report issued by the National Center for Policy Analysis, "Does punishment deter?", indicate that recent crime rates have declined because of the increasing number of incarcerated felons, and
WHEREAS, since California enacted "three strike" legislation in 1994 that requires courts to impose mandatory prison terms on repeat felony offenders convicted of three serious crimes, that state has experienced significant reductions in violent crime, and overall crime rates, and
WHEREAS, a study by the RAND Corporation estimates that the enforcement of this California legislation will reduce serious crime in California committed by adults between 22 and 34 percent, and
WHEREAS, the enactment and enforcement of legislation in Florida that requires courts to impose mandatory prison terms on three-time violent felony offenders will improve public safety by incapacitating repeat offenders who are most likely to murder, rape, rob, or assault innocent victims in our communities, and
WHEREAS, imposing mandatory prison terms on three-time violent felony offenders will prevent such offenders from committing more crimes in our communities, and likely accelerate recent declines in the violent crime rate in this state,....
[3] It is not clear what would have become of the 1999 statutes, or a window period that would close on the date of their reenactment, if House Bill 657 had become law.
[4] When House Bill 657 reached the Senate, the Senate amended it to conform with Senate Bill 274. Fla. S. Jour. 650-651 (Reg.Sess. 1999) ("Senate Amendment 1"). House Bill 657 returned to the House, which then amended the Senate amendment, effectively returning the House bill to its original language, that is, reenacting the 2000 rather than the 1999 Florida Statutes. Fla. H.R. Jour. 1971 (Reg.Sess.1999) ("House Amendment 1"). The Senate informed the House that it "has refused to concur in House Amendment 1 to Senate Amendment 1 to HB 657 and requests the House to recede." Id. at 2232. The House refused to recede from House Amendment 1 and again asked the Senate to concur. Id. The Senate again refused to concur in House Amendment 1 and certified its action to the House on May 4, 2001. Fla. S. Jour. 1589 (Reg.Sess. 2001). At this point the bill died.
[5] In chapter 96-388, section 45, at 2336, Laws of Florida, the legislature reenacted section 790.235, Florida Statutes, which established the crime of unlawful possession of a firearm by a violent career criminal. This provision was not specifically challenged in Salters v. State, 758 So.2d 667 (Fla.2000). The Salters court left open the question of whether the reenactment of section 790.235 closed the window for persons attempting to challenge a conviction under that particular statute on single subject grounds. 758 So.2d at 671 n. 9.
[6] We reviewed the 2001 amendments because of the legislature's failure to reenact the 1999 statutes. We believe Salters requires us to consider any amendments that occur when the window period to assert a single subject rule challenge is open.
[7] We have also examined the legislative revisions to other statutes contained in chapter 99-188. Chapter 2000-155, section 2, at 781, Laws of Florida, removed the word "is" from section 943.1535, Florida Statutes. Chapter 2000-246, section 3, at 2404-06, Laws of Florida, reenacted section 775.082(9) for the purpose of incorporating amendments to section 800.04, contained in section 1 of the chapter. Chapter 2001-239, section 1, at 2192-93, Laws of Florida, amended section 775.082(9), changing language concerning burglary of a dwelling and adding language applying the statute to felons released from custody in jurisdictions other than Florida. Chapter 2001-279, section 49, at 3201, Laws of Florida, reenacted section 810.011(5)(b), Florida Statutes, to incorporate other amendments made in the chapter. Again, these revisions were amendments, not reenactments that would have closed the window period for single subject challenges under the exception noted in Martinez v. Scanlan, 582 So.2d 1167 (Fla.1991). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597832/ | 583 F.Supp. 74 (1984)
Sumner M. REDSTONE, et al., Plaintiffs,
v.
GOLDMAN, SACHS & CO., et al., Defendants.
Civ. A. No. 83-414-S.
United States District Court, D. Massachusetts.
January 5, 1984.
Barry Ravech, Winer & Abrams, Boston, Mass., for plaintiffs.
Peter M. Saparoff, Gaston Snow & Ely Bartlett, Boston, Mass., for defendants.
*75 MEMORANDUM AND ORDER
SKINNER, District Judge.
This is an action for securities fraud and conversion. The defendant has moved to dismiss and to strike counts of the complaint. The motion is allowed in part and denied in part as set out below.
The plaintiffs, the Redstones, are investors who wished to invest some five million dollars in municipal securities in the summer of 1982. The Redstones sought the assistance of Herbert Cobey, a securities broker-dealer with the investment banking firm Goldman, Sachs & Co. ("Goldman"). According to the plaintiffs, Cobey held himself and his firm out as experts in the field of investment counseling, and led the plaintiffs to rely on their expertise. The plaintiffs allege that Cobey went to some lengths to establish a fiduciary relationship with them. From July, 1982 through October, 1982, Cobey acted as broker-dealer for the plaintiffs and purchased securities on their behalf.
The plaintiffs complain of two wrongs. First, they allege that Cobey fraudulently breached his duty to them by not disclosing his intention to steer their funds into securities for which Goldman was acting as underwriter or dealer. During the period in which Cobey was advising the plaintiffs, interest rates were falling, and the plaintiffs allege, in effect, that Cobey failed to invest their money promptly in higher yield securities because he was waiting to put it into securities that Goldman was marketing. As a result of Cobey's delay in investing their funds, the plaintiffs allege that they ended up with a less valuable, lower yield portfolio. The plaintiffs allege in addition that Cobey made an unauthorized purchase of bonds of the City of Malden and wrongfully charged their account for the loss on disposition of the securities.
The plaintiffs bring their action under several different theories. Wrongful steering of the plaintiff's investment is alleged to create liability under the 1934 Securities Exchange Act and the regulations promulgated pursuant to it, and in addition, to create liability under the Massachusetts law of negligence, contract, fiduciary duty and unfair business practices (M.G.L. c. 93A). Relief is sought under the same Massachusetts law theories for the unauthorized purchase of the Malden bonds. In addition, the plaintiffs seek relief for both wrongs as violations of Rule G-19 of the Municipal Securities Rulemaking Board ("MSRB").
The defendants have moved (1) that all the counts of the complaint arising out of the alleged wrongful selection of investment be dismissed for failure to state a claim for which relief can be granted: (2) that the MSRB and Chapter 93A claims be dismissed for failure to state a claim for which relief can be granted; (3) that all claims against the individual defendants be dismissed (the plaintiff has named all of the partners and some of the limited partners of Goldman as well as the partnership itself); (4) that the plaintiff's request for exemplary damages in ¶ 39(c) of the complaint be stricken "for legal insufficiency"; (5) that the defendants be awarded their costs, expenses and attorney's fees.
Both parties have assumed for the purposes of this motion that the Exchange Act will support a private action for the kind of nondisclosure alleged here.
The principal attack brought by the defendants on the plaintiffs' claim of wrongful steering goes to the issue of damages. The defendants argue that since the plaintiffs' portfolio has appreciated in the months since the purchases were made the plaintiffs suffered no compensable loss as a result of the defendants' conduct.
The defendants rely initially on the language of 15 U.S.C. § 78bb(a), which restricts damages awarded under the Exchange Act to "actual damages". The defendants argue that this language implies a rigid limit of damage awards to out-of-pocket losses. The Second Circuit has, in a thorough opinion, examined the meaning of the "actual damage" concept. Osofsky v. Zipf, 645 F.2d 107 (1981). The court ruled that the word "actual" was meant to prohibit punitive damages, and to prevent double *76 recovery by those who assert both state and federal claims arising out of the same conduct. Osofsky, supra at 111. Citing Birdsall v. Coolidge, 93 U.S. 64, 23 L.Ed. 802 (1876), the Court reasoned that the term "actual damages" had an accepted meaning at the time of the enactment of the Exchange Act (1934). Actual damages meant compensatory damages measured by economic loss. Osofsky, supra at 111. "[T]here cannot be any one rule of damages which will apply in all cases, even where it is conceded that the finding must be limited to actual damages". Id., quoting Birdsall, supra at 70. "It is for the district judge, after becoming aware of the nature of the case, to determine the appropriate measure of damages in the first instance." Arrington v. Merrill Lynch, Pierce, Fenner & Smith, 651 F.2d 615, 620-621 (9th Cir.1981).
The defendants argue that our Court of Appeals has specified the measure of damages in cases where a purchaser of securities has been defrauded. Janigan v. Taylor, 344 F.2d 781 (1st Cir.1965), cert. denied 382 U.S. 879, 86 S.Ct. 163, 15 L.Ed.2d 120 (1965) involved a group of stockholders who proved that the defendant had fraudulently induced them to sell their interest in a company to him. Judge Aldrich stated that in the case of a defrauded buyer, damages are to be reckoned "solely by the difference between the real value of the property at the date of its sale to the plaintiffs and the price paid for it, with interest from that date, and, in addition, such outlays as were legitimately attributable to the defendant's conduct, but not damages covering `the expected fruits of an unrealized speculation.'" Id. at 786 (citing Sigafus v. Porter, 179 U.S. 116, 21 S.Ct. 34, 45 L.Ed. 113 (1900))
I do not read Judge Aldrich's comment as requiring the denial of recovery on the facts of this case. The plaintiffs allege that they instructed Cobey to purchase a very specific class of securities, AA-grade municipal bonds. These bonds had a known yield. The defendants failed to make these purchases, and ultimately purchased lower yield securities in furtherance of their marketing purposes. The plaintiffs are therefore seeking realization of their reasonably certain expectations rather than "the expected fruits of an unrealized speculation".
The case law in other circuits is consistent with this reading of Janigan. Garnatz v. Stifel, Nicolaus & Co., 559 F.2d 1357, 1360 (8th Cir.) cert. den. 435 U.S. 951, 98 S.Ct. 1578, 55 L.Ed.2d 801 (1978) (out-of-pocket rule not a talisman); Gould v. American-Hawaiian S.S. Co., 535 F.2d 761, 781 (3rd Cir.1976) (recovery for lost possible profits to be allowed under Exchange Act unless the loss is wholly speculative); Madigan, Inc. v. Goodman, 498 F.2d 233, 239-240 (7th Cir.1974) (recovery for lost alternative investments to be allowed if proved with "a good deal of certainty").
I conclude that the plaintiffs may recover under § 10(b) of the Exchange Act and the regulations promulgated thereunder for their losses resulting from the defendants' wrongful steering.
The defendants also suggest that the plaintiffs cannot recover for their lost profits resulting from the defendants' wrongful steering under Massachusetts contract law. Massachusetts contract law allows plaintiffs to recover the benefit of their bargain, including lost profits. Rombola v. Cosindas, 351 Mass. 382, 385, 220 N.E.2d 919 (1966). See also Coyne Industrial Laundry v. Gould, 359 Mass. 269, 277, 268 N.E.2d 848 (1971); Air Technology Corporation v. General Electric Corporation, 347 Mass. 613, 626-627, 199 N.E.2d 538 (1964); Abrams v. Reynolds Metals Co., 340 Mass. 704, 709, 166 N.E.2d 204 (1960); Cetrone v. Livoli, 337 Mass. 607, 610, 150 N.E.2d 732 (1958); Whiting v. Price, 172 Mass. 240, 242-243, 51 N.E. 1084 (1898); Coffing v. Dodge, 167 Mass. 231, 236-237, 45 N.E. 928 (1897).
Massachusetts law is equally clear that in an action for wilful misrepresentation the plaintiff may recover the "benefit of the bargain" if the damages are provable with reasonable certainty. Rice *77 v. Price, 340 Mass. 502, 510, 164 N.E.2d 891 (1960). On the other hand, "benefit of the bargain" damages are not available in a case of negligent misrepresentation. Danca v. Taunton Savings Bank, 385 Mass. 1, 10-11, 429 N.E.2d 1129 (1982). Accordingly, I hold that the plaintiffs have not stated a valid claim for relief under their negligence count, Count IV, but that they have stated a claim under Count III, the fiduciary duty count, insofar as they allege a wilful breach of duty with respect to the selection of securities.
Plaintiffs assert that the defendants are liable to them under Rules G-17 and G-19 of the MSRB for both wilful misinvestment of their funds and unauthorized purchase of the Malden bonds. These rules prohibit members from making "unsuitable" investments. Whether a private right of action lies depends upon the intent of Congress in enacting the legislation creating the MSRB. Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Merrill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 377, 102 S.Ct. 1825, 1838, 72 L.Ed.2d 182 (1982); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 23-24, 100 S.Ct. 242, 249, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 575-576, 99 S.Ct. 2479, 2488-2489, 61 L.Ed.2d 82 (1979).
Similar rules of the New York Stock Exchange and of the National Association of Securities Dealers have been held not to create private rights of action. Colonial Realty Corporation v. Bache & Co., 358 F.2d 178, 181 (2nd Cir.1966); Plunkett v. Dominick & Dominick, Inc., 414 F.Supp. 885, 889 (D.Conn.1976). The reasoning of those cases applies with equal force to this one. Nothing in the legislative history of P.L. 94-29 leads to a contrary rule. S.Rep. No. 75, 94th Congress 1st Session, reprinted in 1975 U.S.Code Congressional Administrative News at 179.
Accordingly, I find that there is no private right of action for a violation of Rules G-17 and G-19 of the MSRB.
In Mitchelson v. Aviation Simulation Technology, et al., 582 F.Supp. 1 (D.Mass.1983), I adopted Judge Mazzone's careful reasoning in Kennedy, et al., v. Josephthal & Co., Inc., No. 82-913-MA (D.Mass., June 29, 1982). Judge Mazzone found, after examination of the trends in Massachusetts law, that chapter 93A does apply to securities transactions. Cf. Sullivan v. Dean Witter Reynolds, Inc. et al., No. 82-3300-K (D.Mass., June 9, 1983) (applying chapter 93A to commodities transactions). Notwithstanding the reservations which I expressed in Mitchelson, I hold that chapter 93A does apply to the transactions involved in this case.
I have no doubt that lost profits resulting from the defendants' wrongful steering are properly recoverable under chapter 93A, given the broadly remedial purpose of that statute.
Punitive damages may not be awarded for violations of the Exchange Act, 15 U.S.C. § 78bb(a), and under Massachusetts law, "exemplary damages are not allowed unless authorized by statute." Lowell v. Massachusetts Bonding & Insurance Co., 313 Mass. 257, 269, 47 N.E.2d 265 (1943). See also, Caperci v. Huntoon, 397 F.2d 799, 801 n. 2 (1st Cir.), cert. den., 393 U.S. 940, 89 S.Ct. 299, 21 L.Ed.2d 276 (1968); Schiller v. Strangis, 540 F.Supp. 605, 624 (D.Mass.1982). A motion to strike does not lie except as specified in Fed.R.Civ.P. 12(g) and accordingly must be denied in this case.
The defendant's motion to dismiss and to strike is DENIED in part and ALLOWED in part as follows. The motion to dismiss claims asserted with respect to the wrongful steering alleged in paragraph 12 and repeated in Counts I and III through VII of the complaint is DENIED as to Counts I, III, V, VI, VII, but ALLOWED as to Count IV. The motion to dismiss Count VI alleging violations of the rules of the Municipal Securities Rulemaking Board is ALLOWED. The motion to dismiss Count VII of the complaint, brought under Massachusetts General Laws, chapter 93A is DENIED. Pursuant to the stipulations entered *78 by counsel at the hearing on the present motion, the motion to dismiss all claims against the individual defendants is ALLOWED. The motion to strike the request for exemplary damages in paragraph 39(c) of the complaint is DENIED. The defendants' request for attorneys' fees and costs is DENIED as clearly premature. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597834/ | 818 So.2d 279 (2002)
Calvin A. RENARD, Plaintiff-Appellee,
v.
Robert McCLOUD, et al., Defendants-Appellants.
No. 35,633-CA.
Court of Appeal of Louisiana, Second Circuit.
May 8, 2002.
Rehearing Denied June 6, 2002.
*280 Henchy, Verbois, Futrell & Foil by C. Michael Futrell, Durward D. Casteel, Baton Rouge, Lavalle B. Salomon, Monroe, for Defendants-Appellants Robert McCloud, J.B. Hunt Transport, Inc. and National Union Fire Ins. Co.
Trinchard & Trinchard by James L. Trinchard, David P. Curlin, New Orleans, for Third Party Defendant Fleetline Inc. and Defendant in Reconvention Calvin A. Renard.
Klotz, Simmons & Brainard, by Harry D. Simmons, Shreveport, Eron J. Brainard, for Plaintiff-Appellee Calvin A. Renard.
Before STEWART, PEATROSS and DREW, JJ.
*281 STEWART, J.
The plaintiff, Calvin Renard ("Renard"), filed suit against Robert McCloud, driver of a tractor/trailer rig owned by J.B. Hunt Transportation, Inc., and National Union Fire Insurance Company, the insurer of McCloud and Hunt ("Defendants") arising out of injuries sustained in an automobile accident. The defendants filed a reconventional and third party demand against Renard and the owner of his vehicle, Fleetline, Inc. The court found in favor of the plaintiff and awarded $521,358.00 in total damages and rejected the defendants' reconventional and third party demands. For the reasons expressed herein, we affirm.
FACTS
On the morning of February 1, 1996, Calvin Renard was driving an 18 wheel tractor trailer rig for Fleetline, Inc eastbound on Interstate 20, approaching the Mississippi River Bridge. The weather conditions were icy and rainy. As Renard proceeded eastward, he saw the driver of an automobile in front of him lose control, spin around, and hit the railing of the bridge. Renard then slowed his truck, bringing it to a stop on the right shoulder of the roadway. Next, Renard activated his flashing hazard lights and called out on his CB radio to warn other truck drivers of the accident. Renard then exited his truck and went to check on the condition of the occupants of the disabled car. The driver of the disabled car asked Renard to call for assistance. On his way back to his truck, Renard saw another truck traveling eastbound in his direction. He then stood behind his truck to allow the truck to pass. However, the oncoming truck sped out of control and collided with Renard's truck which then struck him, knocking him to the ground.
A trial was completed on October 26, 2000, at which the court found McCloud 100% at fault for the accident and awarded general damages, past and future medical costs, and past and future lost wages totaling $521,358.00.
DISCUSSION
Standard of Review
A trial court's factual determination should not be set aside in the absence of manifest error or unless the finding of facts is clearly wrong. Stobart v. State through DOTD, 617 So.2d 880 (La.1993); State ex rel W.H. v. J.A.V., 35,887 (La. App.2d Cir.2/27/02) 811 So.2d 189.
Allocation of Fault
McCloud argues that the trial court erred in finding him 100% at fault for the accident because he was faced with a sudden emergency road condition not of his own making. He contends that it was the plaintiff's failure to adequately warn him of the road hazard coupled with the icy conditions of the road that caused the accident. Moreover, McCloud asserts that the Renard was at least contributorily negligent because he failed to place flares or reflective triangles behind his vehicle to warn oncoming motorists as required by La. R.S. 32:368 and the Federal Motor Carrier Safety Regulations 49 CFR § 392.22(b) which states in pertinent part:
"... whenever a commercial motor vehicle is stopped upon the travel portion for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within ten (10) minutes place the warning devices required by § 393.95 of this subchapter, in the following manner ..."
McCloud asserts that it is Renard and not him that is liable under the court's duty/ risk analysis. Consequently, the defendant *282 should have his liability reduced or eliminated entirely with a proper allocation of fault to the plaintiff.
The court found McCloud's reliance on the federal statue and La. R.S. 32:368 misplaced. The record demonstrates that not only was McCloud aware of the hazardous road conditions, he admitted to hearing Renard's warning on the CB radio that a car had spun out of control and wrecked on the bridge. McCloud also admitted that he could clearly see Renard's truck from a distance of "at least a football field." Further, McCloud never asserted that he was surprised or unable to respond quickly enough to the accident, but rather that when he attempted to move from the right into the left lane, his truck hit a patch of black ice and slammed into Renard's trailer.
To prevail on a negligence claim, the plaintiff must satisfy the five elements of the duty/risk analysis by proving that (1) the defendant had a duty to conform his conduct to a specific standard, (2) the defendant breached the duty by failing to conform his conduct to the appropriate standard, (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries, (4) the defendant's conduct was the legal cause of the plaintiff's injuries, and (5) the existence of actual damages. Davis v. Smith, 35,117(La.App.2d Cir.10/02/01), 796 So.2d 765.
Renard testified that after the car spun out of control and wrecked on the side of the road, he stopped his truck, turned on the blinking hazard lights, and went to render assistance. The trial court found that Renard's actions were completely reasonable under the circumstances and not in violation of federal or state law. Moreover, the court found that Renard's actions were not the legal cause of the accident. There was no manifest error in this finding. Thus, this assignment is without merit.
Because we find that there was no manifest error in the trial court's allocation of fault, we also find that the trial court was correct in denying the defendant's third party/ reconventional claims against Renard and Fleetline for damage to McCloud's truck.
Damages
Likewise, we find no abuse of discretion in the trial court's award of general damages or past or future lost wages. In making damage awards, the discretion of the trier of fact is great, and even vast, so that an appellate court should rarely disturb an award of general damages. Youn v. Maritime Overseas Corp., 623 So.2d 1257 (La.1993), cert denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Methvin v. Ferguson, 35,138 (La. App.2d Cir.9/26/01), 796 So.2d 712. Our role is not to decide what we consider to be an appropriate award, but rather to review the exercise of discretion by the trier of fact. Youn, supra. Each case is different and the adequacy or the inadequacy of the award should be determined by the facts and circumstances particular to the case under consideration. In reviewing a damage award, the initial inquiry is whether the award for the particular injuries and their effects under the particular circumstances on the particular injured person is a clear abuse of the much discretion of the trier of fact. Youn, supra.
Our review of the record shows that the plaintiff's pain and symptoms from the accident have continued in the six years since the accident. He has neck pain, shoulder pain, and headaches. Renard initially tried to continue driving his truck despite the pain, but it soon became too much for him to bear. Doctor John C. Milani, the orthopedic surgeon who treated *283 the plaintiff, diagnosed him with a lumbar disc herniation which caused pain and numbness in both legs and eventually required surgery. Although the surgery initially alleviated such pain and numbness, the lower back and chest pains have returned.
The trial court found that there was a significant loss of the enjoyment of life following the accident. During the trial, there was testimony from Renard and his wife that he could no longer do many of the things he used to enjoy before the accident such as fishing, biking, dancing with his wife, or playing with his children. The court found that an award of $225,000 in general damages for pain and suffering, disability and physical impairment, and loss of enjoyment of life was fair and reasonable. We find no abuse of discretion as to this award.
Similarly, the trial court found the award of $51,331.00 for future medical expenses reasonable in light of the evidence presented in the testimony of Dr. Milani and economic expert, Dr. Melvin Harju. Dr. Harju was accepted as an expert in the field of calculating and projecting past and future economic losses, including earning capacity. He calculated Renard's lost future wages to be $204,702.00 based on evidence that Renard would likely not be able to drive trucks beyond the age of fifty (50), and would have difficulty finding anything above minium wage as a disabled blue collar worker. The trial court accepted the uncontradicted testimony of these experts, thus we find no abuse of discretion.
CONCLUSION
Based on the foregoing reasons, we find no manifest error in the finding of fact by the trial court, nor do we find an abuse of discretion in the damage awards. Consequently, the judgment of the trial court is affirmed. Cost assessed to the appellant.
AFFIRMED.
APPLICATION FOR REHEARING.
Before NORRIS, C.J., WILLIAMS, STEWART, PEATROSS, and DREW, JJ.
Rehearing denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597699/ | 818 So. 2d 932 (2002)
Jacquelyn HAZEY, et al
v.
Paul McCOWN, et al
No. 2001 CA 0929.
Court of Appeal of Louisiana, First Circuit.
May 10, 2002.
*933 Christopher D. Shows and Burk A. Chuter, Baton Rouge, Counsel for Plaintiffs/Appellants Jacquelyn Hazey, Brooks O'Connor and Richard I. Hazey.
Marc S. Whitfield, Baton Rouge, Counsel for Defendant/Appellee Kevin Couhig.
Before: FITZSIMMONS, DOWNING, and LANIER[1], JJ.
WALTER I. LANIER, Judge Pro Tem.
This action is a suit for damages in tort by three plaintiffs alleging assault, battery and intentional infliction of emotional distress. One of the defendants, Kevin Couhig, filed a declinatory exception raising the objection of insufficiency of service of process and a peremptory exception raising the objections of prescription and no cause of action. After a hearing, the trial court *934 sustained the peremptory exception raising the objection of prescription and dismissed the plaintiffs' suit against Couhig with prejudice. The trial court declined to rule on the other exceptions on the ground that they were moot. The plaintiffs took this devolutive appeal.
FACTS
The plaintiffs in this action are Jacquelyn Hazey, Brooks O'Conner and Richard I. Hazey. Their petition alleges that the defendants, Paul McCown and Kevin Couhig, committed the alleged torts on September 16-17, 1998. The petition also asserts the incident in question occurred because the defendants were "angered over a billing dispute between Bitworx, Inc. and Source Capital Corporation ...." This action was filed on June 12, 2000.
Couhig's pleading asserting his exceptions has two exhibits attached to it. One is a certified copy of a judgment dated November 22, 1999, rendered in an action entitled Source Capital Corporation v. Bitworx, Inc., Number 454,162 on the docket of the 19th Judicial District Court that provides, in pertinent part, as follows:
Present in Court:
Brandon Black for Source Capital Corporation, Kevin Couhig, and Paul McCown;
Christopher D. Shows for Bitworx, Inc., Richard I. Hazey, Jacquelyn Hazey, and Brooks O'Connor.
After consideratin [sic] of the motions submitted by the parties and the accompanying memoranda, and after argument by both counsel, the Court rendered judgment as follows:
IT IS ORDERED, ADJUDGED AND DECREED that the Court is satisfied that the purposed [sic] intervenors have stated allegations sufficient to establish a right of action.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the purported intervenors file amended pleadings within 30 days establishing, if they are able, their right to intervene in the principal and/or reconventional demands. Failure to do so will result in an order by this Court severing the intervention from the principal demands.
This judgment shows the exception was heard on November 15, 1999. Source Capital Corporation, Couhig and McCown applied to this court for a supervisory writ asserting error in this judgment. This court, on June 2, 2000, under docket number 00CW0001, rendered the following judgment:
WRIT GRANTED. The trial court's judgment of November 22, 1999, is hereby reversed and judgment is entered in favor of relators granting their peremptory exception of no right of action as to the new plaintiffs in intervention. See LSA-C.C.P. art. 1091.
The trial of Couhig's exceptions was held on October 23, 2000. The court minutes for the trial state that "[a]rgument was had by counsel" and "the matter submitted...." The civil evidence list in the record states "(N)o Evidence has been filed in suit # 473,280 as of April 27, 2001."
PRESCRIPTION
(Assignments of error 1 and 2)
The appellants assert the trial court erred by sustaining the peremptory exception raising the objection of prescription because (1) their intervention in a timely filed suit (Source Capital Corporation v. Bitworx, Inc.) "tolled" the prescriptive period; and (2) their claim "arose out of the same occurrence or transaction" as the timely filed claim and was "directly related in their [the defendants'] capacity as a corporate entity."
*935 The defendants asserts the plaintiffs' causes of action in tort have prescribed pursuant to the liberative prescription of one year provided for in La. C.C. art. 3492. Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. If the facts alleged in a petition do not show that a claim has prescribed, the burden is on the party raising the objection of prescription to prove it. Strata v. Patin, 545 So. 2d 1180 (La.App. 4 Cir.), writs denied, 550 So. 2d 618 (La.1989); State ex rel. Guste v. Thompson, 532 So. 2d 524 (La.App. 1 Cir.1988). Conversely, if a claim is prescribed on the face of the pleadings, the burden is on the plaintiff to show that prescription has not tolled because of an interruption or a suspension. Tranum v. Hebert, 581 So. 2d 1023 (La. App. 1 Cir.), writ denied, 584 So. 2d 1169 (La.1991); Spencer-Wallington, Inc. v. Service Merchandise, Inc., 562 So. 2d 1060 (La.App. 1 Cir.), writ denied, 567 So. 2d 109 (La.1990); Zumo v. R.T. Vanderbilt Company, Inc., 527 So. 2d 1074 (La. App. 1 Cir.1988).
The petition of the plaintiffs asserts the torts were committed on September 16-17, 1998. This action was filed on June 12, 2000. The plaintiffs' claims are prescribed on the face of the pleadings. The burden is on the plaintiffs to show that prescription has not accrued because of an interruption or a suspension. The plaintiffs have not asserted any facts that would entitle them to a suspension of prescription. La. C.C. art. 3467 et seq. The filing of a suit in a court of competent jurisdiction and venue interrupts liberative prescription as to the causes of action therein sued upon. La. C.C. art. 3462 and Revision Comment (b) therefor. The corollary of this rule is that the filing of a suit does not interrupt liberative prescription as to causes of action not sued upon therein.
In the instant case, the plaintiffs contend that the filing of an intervention in a prior suit interrupted prescription on the cause of action sued upon herein. La. C.C. arts. 3463 and 3464. An intervention is an incidental demand; it is not an original action. La. C.C.P. art. 1031. Interventions are provided for in La. C.C.P. art. 1091 et seq. Article 1091 provides as follows:
A third person having an interest therein may intervene in a pending action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto by:
(1) Joining with plaintiff in demanding the same or similar relief against the defendant;
(2) Uniting with defendant in resisting the plaintiffs demand; or
(3) Opposing both plaintiff and defendant.
(Emphasis added)
La. C.C.P. art. 1067 provides as follows:
An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand. (Emphasis added).
In Allstate Insurance Company v. Theriot, 376 So. 2d 950, 954 (La.1979) appears the following:
It is true that, if (as in this case) the subsequent claimant is a different person than the original plaintiff, then to interrupt prescription the first suit must not only be based upon the same factual occurrence as is the subsequent claim by amended petition or intervention; *936 the subsequent claimant must also be closely connected in relationship and identity of interest with the original plaintiff. (Emphasis added; citations omitted)
The record on appeal shows that a suit between two corporations existed prior to the filing of this suit; however, it does not show when this prior suit was filed or what causes of action were asserted therein. The record on appeal shows that the plaintiffs herein attempted to intervene in the prior suit; however, it does not show when the attempted intervention was filed, whether the causes of action asserted by the plaintiffs herein arose out of the same occurrence or occurrences involved in the prior suit or whether the intervention was filed within ninety days of service in the prior suit. Neither the prior suit nor the attempted intervention are in the record on appeal. The corporate (juridical) persons in the prior suit are not the same as the natural persons in this suit. La. C.C. art. 24. The judgment of this court, reflected by the writ action in the record, shows that the plaintiffs herein had no right of action to intervene in the prior suit. It is implicit in this ruling that the plaintiffs did not assert a right related to or connected with the object of the prior suit. The unauthorized filing of an intervention in a pending action does not interrupt prescription on the cause of action asserted in the intervention.
Pursuant to La. C.C.P. art. 2164, an appellate court must render its judgment upon the record on appeal. The record on appeal is that which is sent by the trial court to the appellate court and includes the pleadings, court minutes, transcript, jury instructions, judgments and other rulings, unless otherwise designated. La. C.C.P. arts. 2127 and 2128; Official Revision Comment (d) for La. C.C.P. art. 2127. An appellate court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Davis v. Anderson, 451 So. 2d 1302 (La.App. 1 Cir.1984). Thus, an appellate court cannot review facts in appellate briefs, affidavits and motions, if those facts are not in the record. Capital Drilling Company v. Graves, 496 So. 2d 487 (La. App. 1 Cir.1986); Fred H. Moran Construction Corporation v. Elnaggar, 441 So. 2d 260 (La.App. 1 Cir.1983); Bullock v. Commercial Union Insurance Company, 397 So. 2d 13 (La.App. 3 Cir.1981). The facts asserted in the briefs of the parties in this case that are not contained in the petition or the record on appeal cannot be considered by this court. Tranum v. Hebert, 581 So.2d at 1027.
A review of the record on appeal shows there is no evidence showing a timely interruption of the one year liberative prescription of Article 3492. The alleged tortious conduct occurred on September 16-17, 1998. This suit was filed on June 12, 2000. The tort claims are prescribed on the face of the petition. The burden was on the appellants to show an interruption of the one year prescriptive period. They have failed to do so. The causes of action asserted in this suit are barred by prescription. Cf. Ellenburg v. Commercial Union Insurance Company, 434 So. 2d 1216 (La.App. 1 Cir.1983).
These assignments of error are without merit.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. The appellants are cast for the costs of this appeal.
AFFIRMED.
FITZSIMMONS, J., concurs.
NOTES
[1] The Hon. Walter I. Lanier, Jr., Judge (retired), First Circuit Court of Appeals, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597693/ | 818 So. 2d 485 (2002)
STATE of Florida, Petitioner,
v.
Peter B. SERAPHIN, Respondent.
No. SC01-1344.
Supreme Court of Florida.
May 16, 2002.
*486 Robert A. Butterworth, Attorney General, Celia Terenzio, Bureau Chief, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
No Appearance for Respondent.
LEWIS, J.
We have for review Seraphin v. State, 785 So. 2d 608 (Fla. 4th DCA 2001), in which the Fourth District certified conflict with Johnson v. State, 760 So. 2d 992 (Fla. 2d DCA 2000).[1]See Seraphin v. State, 792 So. 2d 526 (Fla. 4th DCA 2001) (granting the State's motion for certification of conflict). This Court has jurisdiction. See art. V, § 3(b)(4), Fla. Const.
MATERIAL FACTS
The respondent, Peter B. Seraphin, was deported after pleading guilty to robbery with a deadly weapon. Subsequently, in his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, Seraphin alleged that, after he had completed his sentence, the United States Immigration and Naturalization Service sought to deport him, and served him with a notice to appear. A copy of the notice, which listed his conviction as grounds for deportation, was attached to his motion, as well as a transcript of his plea colloquy. The transcript reflected that immigration consequences had not been discussed at that hearing. Seraphin sought to withdraw his plea as involuntary, because the court had failed to inform him that his plea might subject him to deportation.[2] He alleged that he had no actual knowledge of the immigration consequences of his plea and that, had he been aware of the deportation consequences, he would not have entered it, but would have gone to trial and probably been acquitted. Although the State conceded that an evidentiary hearing was necessary, the trial court, after learning that Seraphin had been subsequently deported, dismissed the motion, ruling that *487 deportation rendered Seraphin's motion moot.
The district court disagreed, concluding that Seraphin's deportation did not render his motion moot. 785 So.2d at 609. It also determined that Seraphin was entitled to relief based upon the motion, reasoning:
On the merits, the motion appears to be legally sufficient. A trial court's failure to comply with Florida Rule of Criminal Procedure 3.172(c)(8) and advise a defendant of the consequences of his plea may entitle him to withdraw his plea, if he shows that he was prejudiced, such as by threat of deportation. See, e.g., Marriott v. State, 605 So. 2d 985 (Fla. 4th DCA 1992), approved by Peart v. State, 756 So. 2d 42, 44 (Fla.2000).
The state contends that appellant may not have been prejudiced by the trial court's failure to inform him of the deportation consequences of his plea. During the plea colloquy, in response to questioning by the court, appellant replied that he was a United States citizen. The state argues that if appellant was under the impression that he was a citizen of the United States, he may have suffered no prejudice. Although we recognize conflicting case law from our sister courts, see State v. Rajaee, 745 So. 2d 469 (Fla. 5th DCA 1999), and Johnson v. State, 760 So. 2d 992 (Fla. 2d DCA 2000), we have consistently held that the trial court's compliance with rule 3.172(c)(8) is mandatory. See Sanders v. State, 685 So. 2d 1385 (Fla. 4th DCA 1997) (rejecting state's argument that defendant invited error by falsely stating he was United States citizen and reversing denial of motion for postconviction relief with directions to allow defendant to withdraw plea); see also Griffiths v. State, 776 So. 2d 280 (Fla. 3d DCA 2000); State v. Richardson, 785 So. 2d 585 (Fla. 3d DCA 2001); Elharda v. State, 775 So. 2d 321 (Fla. 3d DCA 2000), rev. denied, 780 So. 2d 915, No. SC00-1429 (Fla. 2001).
Id. at 609-10. The State filed a timely petition for review in this Court.
ANALYSIS
To the extent that the Fourth District's decision may be viewed as creating a "per se" rule permitting a defendant threatened with deportation to withdraw his plea any time a trial court fails to provide the information required by rule 3.172(c)(8) during the defendant's plea colloquy, such does not correctly follow the guidance provided by this Court's decision in Peart v. State, 756 So. 2d 42 (Fla.2000). In Peart, we identified the proper vehicle through which a noncustodial defendant could present, as a basis for postconviction relief, a violation of rule 3.172(c)(8) clue to the trial court's failure to provide advice regarding the possible immigration consequences of the defendant's plea. In the context of concluding that, following Wood v. State, 750 So. 2d 592, 594 (Fla.1999), "such claims should be pled via rule 3.850," Peart, 756 So.2d at 48, the Court addressed the requirement of demonstrating prejudice in such cases:
We begin our analysis of this issue by observing that prior to Peart [v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998)], district courts of appeal have uniformly held that in order for a defendant to obtain postconviction relief based on a rule 3.172(c)(8) violation, the defendant had to prove that the trial court did not provide advice regarding the possible immigration consequences of the plea and resultant prejudice. See Perriello v. State, 684 So. 2d 258, 259-60 (Fla. 4th DCA 1996); Beckles [v. State, 679 So. 2d 892 (Fla. 3d DCA 1996)]; De Abreu v. State, 593 So. 2d 233, 234 (Fla. 1st DCA 1991). [Note 5] In order to show prejudice pursuant to a rule 3.172(c)(8) violation, *488 defendants had to establish that they did not know that the plea might result in deportation, that they were "threatened" with deportation because of the plea, and that had they known of the possible consequence they would not have entered the plea. See Perriello, 684 So.2d at 259 (holding prejudice shown where defendant was "threatened" with deportation); Marriott [v. State, 605 So. 2d 985, 987 (Fla. 4th DCA 1992)] (holding that "threat" of deportation of alien was a sufficient showing of prejudice in such cases); De Abreu, 593 So.2d at 234 (holding that the defendant's allegation in a rule 3.850 motion that the trial court violated rule 3.172(c)(8), and that the defendant was subsequently surprised by the "threat" of deportation, constituted a sufficient showing of prejudice to justify an evidentiary hearing). [Note 6] Accordingly, based on established precedent, in order to obtain relief from an alleged rule 3.172(c)(8) error, defendants are not required to prove a probable acquittal at trial.
[Note 5] This Court included advisement of the possible immigration consequences of the plea during the plea acceptance hearing because deportation of a person from the United States often is just as harsh as other consequences, if not more so. See In re Amendments to Florida Rules of Criminal Procedure, 536 So. 2d 992 (Fla.1988). Before the amendment, this Court treated a trial court failure to warn a defendant of the possible deportation consequences of a plea as a "collateral consequence" that would not support a claim of ineffective assistance of counsel. State v. Ginebra, 511 So. 2d 960 (Fla.1987). One year later, however, we established rule 3.172(c)(8). We subsequently acknowledged that our old case law was superseded by the new rule in State v. De Abreu, 613 So. 2d 453 (1993) ("In re Amendments to Florida Rules of Criminal Procedure, 536 So. 2d 992 (Fla.1988),... supersede[s] Ginebra to the extent of any inconsistency.").
[Note 6] See Beckles, 679 So.2d at 892 (holding that being taken into custody by immigration authorities because of the conviction based on the plea was sufficient to show prejudice); Spencer v. State, 608 So. 2d 551 (Fla. 4th DCA 1992) (holding that appellate immigration court decision that defendant was deportable was sufficient to show prejudice); see also State v. Oakley, 715 So. 2d 956, 957 (Fla. 4th DCA 1998) (holding that defendant failed to show prejudice, despite rule 3.172(c)(8) violation, where defendant was deportable based on previous drug trafficking conviction).
Peart, 756 So.2d at 47-48 (emphasis supplied).
This Court has not interpreted Peart as establishing that the threat of deportation itself constitutes prejudice. See State v. Luders, 768 So. 2d 440 (Fla.2000) ("The State makes clear on rehearing (in an unopposed motion) that Luders was not prejudiced by the trial court's failure to advise him of the immigration consequences of entering his plea because Luders' defense counsel advised him thereof and he decided to accept the risk. Because Luders was not prejudiced by the trial court's error, he was not entitled to relief."); Peart, 756 So.2d at 47 n. 6 (citing, inter alia, State v. Oakley, 715 So. 2d 956, 957 (Fla. 4th DCA 1998) (holding that the defendant had failed to show prejudice, despite a rule 3.172(c)(8) violation, where the defendant was deportable based upon a previous drug trafficking conviction)). Rather, pursuant to Peart, a defendant must show prejudice not only by the subsequent threat of deportation, but also because the trial court failed to provide the *489 information required by rule 3.172(c)(8).[3] In other words, to establish prejudice in such cases, a defendant threatened with deportation must demonstrate that he or she was prejudiced in the process by entering the plea because the trial court failed to provide the information required by rule 3.172(c)(8).
This distinction becomes important where the defendant is unaware of the deportation consequences of his plea because the defendant mistakenly believes that he or she is a United States citizen. Even in those instances, however, if the defendant alleges that he or she would not have entered the plea had information been provided as required by rule 3.172(c)(8), this would require review of the record in light of the defendant's allegations, and an evidentiary hearing in the event that the record did not conclusively refute them. By providing a defendant the information required by the rule, the defendant is at least on notice that the citizenship status should be known or, if any doubts exist, such should be resolved before a plea is entered.
Thus, in Johnson v. State, 760 So. 2d 992 (Fla. 2d DCA 2000), the district court properly reversed the trial court's denial of Johnson's postconviction motion and remanded for further proceedings consistent with this Court's opinion in Peart, even though it expressed reservations concerning Johnson's ability to demonstrate prejudice upon remand:
Mr. Johnson entered an open guilty plea to armed trafficking in methamphetamine in December 1995, and received a sentence of seventy-two months' incarceration, followed by probation. There is no dispute that the trial judge failed to comply with Florida Rule of Criminal Procedure 3.172(c)(8) at the time the plea was accepted and did not warn Mr. Johnson of the risk of deportation. There is also no dispute that Mr. Johnson is a British citizen and that the Immigration and Naturalization Service is now attempting to deport him.
At the time of the hearing in the trial court on the postconviction motion, the trial judge reasonably believed that Mr. Johnson had the obligation to prove that he would probably have been found not guilty if he had not entered the plea. See Peart v. State, 705 So. 2d 1059 (Fla. 3d DCA 1998), quashed, 756 So.2d at 44 (Fla.2000). As a result, the pleadings and the evidentiary hearing centered on whether trial counsel was ineffective for failure to warn his client of this risk. Apparently, Mr. Johnson has lived in the *490 United States since he was a small child, has no noticeable accent, and both of his parents had become United States citizens. The record suggests that at the time of his plea hearing, Mr. Johnson did not realize he was British and did not inform his counsel about his citizenship. His trial counsel never realized that deportation was a risk in this case. The trial court determined, and we believe correctly, that Mr. Johnson's counsel was not ineffective under the facts of this case.
After the supreme court's decision in Peart, however, Mr. Johnson does not need to establish that he probably would have prevailed at any trial; he must establish merely that the failure to advise him of the risk of deportation was a prejudicial error. See Peart, 756 So.2d at 47 (citing Perriello v. State, 684 So. 2d 258, 259 (Fla. 4th DCA 1996); Marriott v. State, 605 So. 2d 985, 987 (Fla. 4th DCA 1992); De Abreu v. State, 593 So. 2d 233, 234 (Fla. 1st DCA 1991)).
We cannot rule, as a matter of law, that the error was prejudicial in this case. The motion will need to be amended to allege prejudice from the omission in the plea hearing. This is particularly true in this case because it is not clear that Mr. Johnson realized at the time of the plea hearing that he was British. If the trial court had warned him of the risk of deportation when he believed he was a United States citizen, there is no reason to think that the warning would have altered his decision. Any prejudice he would have sustained in that circumstance would relate to his own lack of knowledge about his own citizenship, and not to a failure of the trial court to give him correct legal information. See State v. Rajaee, 745 So. 2d 469 (Fla. 5th DCA 1999) (holding defendant's mistaken belief he was American citizen did not entitle him to withdraw plea).
760 So.2d at 993-94 (emphasis supplied); see also St. Preux v. State, 769 So. 2d 1116, 1117 n. 1 (Fla. 2d DCA 2000) ("Even though St. Preux has been ordered deported, it is possible for the State to prove that he was not prejudiced by the rule 3.172(c)(8) violation.").[4] Accordingly, even though the Fourth District correctly observed that it is "mandatory" that rule *491 3.172(c)(8) information be given to all defendants prior to accepting their pleas, Peart does not create a "per se" rule allowing an automatic withdrawal of the plea by all defendants threatened with deportation in cases involving a violation of the rule. Rather, Peart explicitly requires a showing that, absent the failure to inform the defendant, he or she would not have entered the plea. See Peart, 756 So.2d at 47; Orduno v. State, 800 So. 2d 669, 669 (Fla. 2d DCA 2001) ("[Orduno] asserted that the trial court did not advise him of the deportation consequences of his plea as required under Florida Rule of Criminal Procedure 3.172, that he did not know he could be deported if he pleaded no contest, and that he would not have entered the plea if he had known he could be deported. Orduno has stated a facially sufficient claim for relief.") (citing Peart, 756 So.2d at 42); cf. also Wuornos v. State, 676 So. 2d 966 (1995) (determining that the fact that the plea colloquy did not meet the standards set by rule did not prejudice Wuornos, and therefore did not form a basis for postconviction relief, where a detailed factual basis to accept the plea had been provided by the State without objection from Wuornos; the overall thrust of the conversation between the trial court and Wuornos indicated that she knew the import of her plea; and the trial court had established that Wuornos had knowingly and voluntarily signed a detailed form which met all requirements imposed by law).
Based upon the foregoing, we approve the Second District's decision in Johnson. While we agree with the Fourth District that Seraphin has filed a facially sufficient motion in this case, we quash the decision below and disapprove its reasoning (and that of Sanders, Griffiths, and Elharda) to the extent that such may be interpreted as creating a "per se" rule permitting a defendant threatened with deportation to withdraw his or her plea any time a trial court fails to provide the information required by rule 3.172(c)(8) during the plea colloquy. Accordingly, we remand this case to the Fourth District with directions to further remand it to the trial court for an evidentiary hearing consistent with this opinion and Peart.
It is so ordered.
WELLS, C.J., and SHAW, HARDING, ANSTEAD, PARIENTE, and QUINCE, JJ., concur.
NOTES
[1] Although the Second District also certified conflict with State v. Rajaee, 745 So. 2d 469 (Fla. 5th DCA 1999), the issue addressed in Rajaee is distinct from that raised in Seraphin and Johnson. In Seraphin and Johnson, the defendants, during their plea colloquies, were either under the mistaken impression, or had indicated to the trial court, that they were United States citizens, and neither was informed by the court of the possible deportation consequences of their pleas. In Rajaee, in contrast, the trial court had specifically advised the defendant during the plea colloquy that a conviction might subject him to deportation, but the defendant later sought to withdraw his plea on the basis that he mistakenly believed that he was a United States citizen at the time. See Rajaee, 745 So.2d at 470. Thus, the issue in Rajaee was whether, where the trial court has advised a defendant during the plea colloquy of the possible deportation consequence of the plea, an alleged "mistake" (not caused by the court, defense counsel, law enforcement, or a representative of the State, and not based on a misunderstanding of the plea agreement, the score sheet, or some document prepared by a governmental agent) regarding the defendant's citizenship statusas opposed to a mistake relating to the consequence of a plea based on that statusis sufficient to make a prima facie showing that the plea was "involuntary." Because our conflict jurisdiction is not based upon any express and direct conflict regarding this issue, we decline to address it. However, we note that the analysis contained in Rajaee is consistent with our opinion here.
[2] Seraphin also alleged ineffective assistance of counsel, in that counsel (who apparently was also under the misimpression that Seraphin was a United States citizen) had affirmatively misadvised him that there would be no immigration consequences. However, the district court did not reach this argument.
[3] Rule 3.172(c)(8) provides:
Acceptance of Guilty or Nolo Contendere Plea
(a) Voluntariness; Factual Basis. Before accepting a plea of guilty or nolo contendere, the trial judge shall be satisfied that the plea is voluntarily entered and that there is a factual basis for it. Counsel for the prosecution and the defense shall assist the trial judge in this function.
(b) Open Court. All pleas shall be taken in open court, except that when good cause is shown a plea may be taken in camera.
(c) Determination of Voluntariness. Except when a defendant is not present for a plea, pursuant to the provisions of rule 3.180(d), the trial judge should, when determining voluntariness, place the defendant under oath and shall address the defendant personally and shall determine that he or she understands:
. . .
(8) that if he or she pleads guilty or nolo contendere the trial judge must inform him or her that, if he or she is not a United States citizen, the plea may subject him or her to deportation pursuant to the laws and regulations governing the United States Immigration and Naturalization Service. It shall not be necessary for the trial judge to inquire as to whether the defendant is a United States citizen, as this admonition shall be given to all defendants in all cases.
[4] But cf. Elharda, 775 So.2d at 323 ("In this case, unlike the defendant in Rajaee, Elharda was not given any warning at all about the deportation consequences of his plea and thus was not placed `on notice' that he should be certain that he was a United States citizen before entering his plea. In the absence of such notice, Elharda's mistaken response to an improper inquiry should not excuse compliance with the rule, especially where there is resulting prejudice in the nature of the institution of deportation proceedings against a pleading defendant who was not advised of the deportation consequences of the plea."). In a dissenting opinion in Elharda, Judge Levy reasoned that, insofar as both Elharda and his counsel erroneously believed that Elharda was a United States citizen, Elharda could not show prejudice due to the trial court's failure to admonish him regarding the potential deportation consequences of his plea, because, "even if the trial court had given Elharda the admonition that his plea may subject him to deportation, there is no doubt that Elharda would still have accepted the plea." Elharda, 775 So.2d at 323-24 (Levy, J., dissenting); see also Griffiths v. State, 776 So. 2d 280, 280 (Fla. 3d DCA 2000) (Schwartz, J., specially concurring) ("I agree with Judge Levy's dissent in [Elharda, Rajaee] and the statement in [Johnson], all to the effect that, `[i]f the trial court had warned him of the risk of deportation when he believed he was a United States citizen, there is no reason to think that the warning would have altered his decision. Any prejudice he would have sustained in that circumstance would relate to his own lack of knowledge about his own citizenship, and not to a failure of the trial court to give him correct legal information.'") (quoting Johnson, 760 So.2d at 993). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597797/ | 3 So. 3d 677 (2009)
STATE of Louisiana, Appellee
v.
Dallas TAYLOR, Appellant.
No. 43,901-KA.
Court of Appeal of Louisiana, Second Circuit.
February 25, 2009.
*678 Louisiana Appellate Project, by: James E. Beal, Jonesboro, for Appellant.
Jerry L. Jones, District Attorney, J. Michael Ruddick, Shirley M. Wilson Davis, Josephine P. Heller, Assistant District Attorneys, for Appellee.
Before STEWART, PEATROSS and DREW, JJ.
*679 STEWART, J.
Defendant, Dallas Taylor, was charged with one count of aggravated rape, one count of armed robbery, one count of possession of a firearm by a convicted felon, and one count of aggravated burglary. A unanimous jury found Taylor guilty as charged on all four counts. The trial court sentenced the defendant to serve the mandatory term of life imprisonment without the benefit of probation, parole, or suspension of sentence for the aggravated rape charge, thirty years at hard labor, to run consecutively, without the benefit of probation, parole, or suspension of sentence, for the armed robbery charge, twelve years at hard labor, to run concurrently, without the benefit of probation, parole, or suspension of sentence, for the possession of a firearm by a convicted felon charge, and fifteen years at hard labor, to run concurrently, on the aggravated burglary charge. Taylor now appeals, urging one assignment of error. For the reasons stated herein, we affirm the defendant's convictions and sentences as amended.
FACTS
During the defendant's jury trial, the following evidence was adduced.[1] On the morning of September 7, 2006, 84-year-old J.R. was cleaning inside her home when she heard a knock at the door. J.R.'s husband was not at home, so she went to the front door and saw a man whom she did not know. She said that the man said he was there to do some yard work; J.R. told the man that he would have to return when her husband was at home. The man left, but returned a while later and asked if her husband had returned. She informed the man that her husband was not back yet and he needed to come back when her husband returned. He also asked if anyone else was at home. J.R. told him "no" and closed the door. She noticed that the man was driving a green pickup truck. The victim admitted that she was unsure as to whether she locked the door back. A Monroe city worker operating a tractor near the victim's home saw the green truck driving by and saw that there was only one person in the truck.
J.R. went back to work inside her home. As she was walking down her hallway, she heard someone coming inside the home and believed that it was her husband. As she turned around, she saw that the man who had asked her about the yard work had entered her home and was coming toward her. J.R. screamed, but the stranger told her to stop screaming or else he would kill her. The man put a pistol on J.R.'s neck, grabbed her by the hair and ordered her not to look at him. The man asked J.R. if she had a safe or any money in her house. J.R. retrieved $100 in cash from her purse in a front bedroom, and then the stranger forced J.R. into the master bedroom at the end of the hall.
When they arrived at the master bedroom, the stranger ordered J.R. to take off all her clothing, lie on the bed, and spread her legs. The assailant then got on top of J.R. and raped her vaginally. He also forced his penis in her mouth and then raped her anally. After rummaging around on the victim's dresser where she kept her jewelry, the attacker raped her again.
Shortly before 10:00 a.m., a city worker from the beautification department observed the defendant leave the victim's *680 home in a green pickup truck. The defendant was the sole occupant of the truck. At approximately 10:00 a.m., the victim called 911 and the Monroe Police Department ("MPD"). When police arrived, the victim described her assailant as a black male with a stocky build wearing a white T-shirt, long shorts and white tennis shoes with a red design on them.
Within a few minutes of the victim's 911 call, the Monroe police searched the area around the victim's home. A MPD officer, Sergeant Roderick Jackson, saw a truck matching the description given by the victim being driven by a black male wearing a white T-shirt. At 10:07 a.m., Jackson stopped the truck. The driver of the truck was the defendant, Dallas Taylor. Taylor was wearing a white shirt, long blue-jean shorts, and white tennis shoes with red bottoms. Taylor got out of the truck and approached the officer, but as the defendant heard the sirens of other MPD units arriving, the defendant ran away. The officers apprehended Taylor after a brief chase on foot.
As he was being apprehended, Taylor dropped a checkbook belonging to the victim. A MPD officer, Detective Rhodes, searched Taylor and found $104.00 in cash and a spice jar containing dimes. Rhodes also found other items in Taylor's right front pocket, which included $45.00 in cash, several rings, and pairs of earrings. These items belonged to either the victim or her husband. On the back seat of the defendant's truck, the police found two rifles, a pistol and two boxes of ammunition belonging to the victim's husband. After the defendant was arrested, two officers transported the defendant to the Monroe police station in a marked patrol car. On September 13, 2006, a MPD officer found a credit card holder under the back seat of the same patrol car that was used to transport the defendant. The credit card holder contained the victim's driver's license, credit cards, store loyalty cards, and other various identification cards.
The police also searched the victim's home for physical evidence. An investigator found a fingerprint on a little white jewelry box lid that was found on the master bedroom floor by the door. The fingerprint came from the defendant's left thumb.
At the police station, the defendant agreed to speak with police. Sergeant Heath and Sergeant Huggins interviewed the defendant. Before they revealed to him that his fingerprint had been found on an object in the house, the defendant admitted that he was in possession of stolen firearms, jewelry, and a checkbook, but denied any other wrongdoing and denied ever being in the victim's home. The defendant claimed that he had bought the items from someone named "Steve" who had himself stolen the items. The defendant stated that earlier that morning, he was running an errand when he met with Steve, who told the defendant that he planned to "hit a lick uptown on the north side" and needed a ride afterward. The defendant agreed to meet Steve on the street where the victim lived, and the defendant said that when he located Steve on that street later, Steve was already in possession of the stolen items. The defendant said that he picked up Steve and bought the guns and jewelry from Steve before dropping Steve off at the shelter; he said that Steve retained the victim's credit cards. After being confronted with the fingerprint evidence, the defendant vehemently maintained that he had not been inside the victim's home.
After this interview transpired, Detective Nappier and Detective Baw transported the defendant to a local hospital for forensic analysis of his body. A nurse *681 used a swab to obtain potential serological evidence from the defendant's penis. Additionally, the nurse used a comb on the defendant's pubic hair. A long straight white hair was found on the defendant's penis. When the defendant saw this hair, he made a motion toward the hair, but he was ordered to stop. This hair was inconsistent with the defendant's pubic hair.
The victim was also examined at the hospital by Patti Taylor McFadden, who is a nurse specializing in sexual assault cases. McFadden described the victim's pubic hair as long and white.
After the defendant was transported back to the police station, Detective Heath and Detective Nappier interviewed him a second time. In this interview, the defendant admitted that he had been inside the victim's home. However, he claimed that he went into the house after "Steve" went inside and denied that he was armed. The defendant said that Steve, who was wearing black tennis shoes, had taken the victim into the master bedroom of the house. The defendant informed the detectives that, while Steve was with the victim in the back bedroom, he found a pair of the victim's panties on the hallway floor and used them to masturbate. The defendant said that he never saw the victim and never went into the master bedroom. He claimed that Steve was the only person in the master bedroom with the victim and also was the person who took the jewelry. The defendant further explained that he and Steve discussed where to meet after the crime, and then Steve fled the house on foot while he drove away. The defendant admitted that he kept the victim's checkbook, guns and jewelry but said that Steve kept the victim's credit cards.
J.R. picked two men out of a photo lineup that she described as similar in appearance to her attacker and who appeared to her to look similar to each other; the defendant was one of the men she picked. The city worker witness viewed a photo lineup and identified the defendant as the driver he saw leaving the victim's home.
Although technicians sampled and tested DNA evidence from the bodies of the defendant and the victim, the quantity of biological material present was insufficient to permit identification through currently available techniques. Troy Kendall Stracener, an employee with the North Louisiana Criminalistics Laboratory whose primary duty is DNA analysis, testified that the analysis of the sample from the defendant's penis did reveal the presence of material from a person other than the defendant. He further testified that the white hair found on the defendant's penis could not be linked to the victim through DNA analysis because no DNA profile could be obtained from the hair. Stracener reported that this complication is common when analyzing grey hair.
The defendant's former fiance, Lashonda Hill, testified that she had been with the defendant on the morning of these events until sometime after 9:00 a.m., when the defendant left her mother's home. The defendant's current fiance, Teshetta Mock, testified that the defendant picked her up from her father's house at approximately 9:30 a.m. and took her to the food stamp office. She said that the defendant dropped her off at approximately 9:45 a.m. Mock alleges that she changed her mind about applying for food stamps after filling out an application. After informing a food stamp office employee that she changed her mind, Mock left. She testified that her application was not processed. The food stamp office has no record of her visit on September 7, 2006.
On February 14, the jury unanimously convicted the defendant of aggravated rape, armed robbery, aggravated burglary *682 and possession of a firearm by a convicted felon. The trial court imposed a mandatory term of life imprisonment without the benefit of probation, parole, or suspension of sentence for the aggravated rape charge. For the armed robbery charge, the trial court sentenced the defendant to serve 30 years' imprisonment, without the benefit of probation, parole, or suspension of sentence. For the aggravated burglary charge, the trial court sentenced the defendant to serve 15 years' imprisonment at hard labor, with credit for time served. For possession of a firearm by a convicted felon, the court sentenced the defendant to serve 12 years' imprisonment at hard labor, without the benefit of probation, parole, or suspension of sentence, and fined the defendant $1,000, in default of which he must serve 60 days in jail. The trial court ordered all of these sentences to run concurrently except for the armed robbery sentence, which the court imposed consecutively to the other terms. Taylor now appeals.
LAW AND DISCUSSION
In the defendant's sole assignment of error, he argues that the evidence was not sufficient to convict him of the charges of aggravated rape and armed robbery, or of any other verdict responsive thereto. More specifically, the defendant urges that the state failed to prove that he was the person who committed these offenses.
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); State v. Tate, XXXX-XXXX (La.5/20/03), 851 So. 2d 921, cert. denied, 541 U.S. 905, 124 S. Ct. 1604, 158 L. Ed. 2d 248 (2004); State v. Cummings, 95-1377 (La.2/28/96), 668 So. 2d 1132; State v. Murray, 36,137 (La.App. 2d Cir.8/29/02), 827 So. 2d 488, writ denied, 2002-2634 (La.9/05/03), 852 So. 2d 1020. This standard, now legislatively embodied in La. C. Cr. P. art. 821, does not provide the appellate court with a vehicle to substitute its own appreciation of the evidence for that of the fact finder. State v. Pigford, XXXX-XXXX (La.2/22/06), 922 So. 2d 517; State v. Robertson, 96-1048 (La.10/4/96), 680 So. 2d 1165. The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, 94-3116 (La.10/16/95), 661 So. 2d 442. A reviewing court accords great deference to a jury's decision to accept or reject the testimony of a witness in whole or in part. State v. Gilliam, 36,118 (La.App. 2d Cir.8/30/02), 827 So. 2d 508, writ denied, XXXX-XXXX (La.11/14/03), 858 So. 2d 422.
The Jackson standard is applicable in cases involving both direct and circumstantial evidence. An appellate court reviewing the sufficiency of evidence in such cases must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstances established by that evidence must be sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant was guilty of every essential element of the crime. State v. Sutton, 436 So. 2d 471 (La.1983); State v. Parker, 42,311 (La.App. 2d Cir.8/15/07), 963 So. 2d 497; State v. Owens, 30,903 (La.App. 2d Cir.9/25/98), 719 So. 2d 610, writ denied, 98-2723 (La.2/5/99), 737 So. 2d 747.
Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is *683 one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La. App.2d Cir.9/18/02), 828 So. 2d 622, writs denied, 2002-2595 (La.3/28/03), 840 So. 2d 566, 2002-2997 (La.6/27/03), 847 So. 2d 1255, cert. denied, 540 U.S. 1185, 124 S. Ct. 1404, 158 L. Ed. 2d 90 (2004).
In the absence of internal contradiction or irreconcilable conflict with physical evidence, one witness's testimony, if believed by the trier of fact, is sufficient support for a requisite factual conclusion. State v. Wiltcher, 41,981 (La.App. 2d Cir.5/9/07), 956 So. 2d 769; State v. Burd, 40,480 (La.App. 2d Cir.1/27/06), 921 So. 2d 219, writ denied, XXXX-XXXX (La.11/9/06), 941 So. 2d 35. This rule is applicable to the testimony of victims of sexual assault. State v. Robinson, 36,147 (La.App. 2d Cir.12/11/02), 833 So. 2d 1207; State v. Ponsell, 33,543 (La.App. 2d Cir.8/23/00), 766 So. 2d 678, writ denied, 2000-2726 (La.10/12/01), 799 So. 2d 490. See also State v. Simpson, 39,268 (La.App. 2d Cir.1/26/05), 892 So. 2d 694. Indeed, such testimony alone is sufficient even where the state does not introduce medical, scientific, or physical evidence to prove the commission of the offense by the defendant. State v. Robinson, supra; State v. Ponsell, supra. See also State v. Johnson, 96-0950 (La.App. 4th Cir.8/20/97), 706 So. 2d 468, writ denied, XXXX-XXXX (La.7/2/98), 724 So. 2d 203, cert. denied, 525 U.S. 1152, 119 S. Ct. 1054, 143 L. Ed. 2d 60 (1999).
When the key issue is the defendant's identity as the perpetrator, rather than whether the crime was committed, the state is required to negate any reasonable probability of misidentification. State v. Hughes, XXXX-XXXX (La.11/29/06), 943 So. 2d 1047; State v. Weary, 03-3067 (La.4/24/06), 931 So. 2d 297. Fingerprint evidence has been upheld as sufficient to sustain a conviction. State v. Lee, 39,969 (La.App. 2d Cir.8/17/05), 909 So. 2d 672, writ denied, XXXX-XXXX (La.9/1/06), 936 So. 2d 195; State v. Grissom, 467 So. 2d 858 (La.App. 2d Cir.1985).
In his second police interview, the defendant admitted to the police that he had gone into the victim's home and stolen firearms and ammunition. He also claimed to have masturbated with the victim's panties. However, he told police that he never saw the victim or went into her bedroom. He said that another man, Steve, was the only person with the victim in her bedroom. The question on appeal is whether the state proved beyond a reasonable doubt that the defendant, rather than some other person, was the perpetrator of the rape.
In her testimony, the victim described only a single assailant. She said that the man who attacked her had twice come to her door that morning asking about yard work. She explained that as she walked down the hallway of her home, she heard a sound, turned around and saw that "it was him," the man who had asked her about yard work. She testified that this was the man who raped her and, during the course of the rape, rummaged through the jewelry on the top of her bedroom dresser. Although the defendant claimed never to have entered the victim's bedroom, his fingerprint and no one else's was found on the lid of the little white jewelry box, which was found by the door of the master bedroom where the rape occurred. As the victim described the events of that morning, she recalled only one armed man who entered her house, took her property and raped her.
The victim saw and described the defendant's truck. A city worker likewise saw that same truck hurriedly leaving the victim's house. The city worker positively identified the defendant as the driver and sole occupant of the truck, and the worker *684 saw no one else at the scene. It is undisputed that the defendant was in possession of a wide variety of the victim's belongings. He told police that his purported accomplice, Steve, had kept the victim's credit cards, but those cards were later found in the patrol car used to transport the defendant to jail. The defendant's alibi witnesses did not testify that they were with him at the time when these events took place, and there is no record of Ms. Mock ever having been at the food stamp office on the morning of the rape as the witness claimed.
The victim testified that her attacker was a black male of medium height and medium weight; the defendant is a black male who is 5 feet 9 inches tall and heavyset. The victim initially described her rapist as a stocky black male. In addition, the victim said that the man was wearing a white T-shirt, long shorts and white tennis shoes with a red design; photos of the defendant taken at the time of his arrest show that this description was entirely accurate.
The DNA evidence in this case neither links the defendant to the rape nor excludes the defendant as the perpetrator. However, a long white hair was found on the defendant's penis shortly after the rape, and this hair had similar characteristics to the victim's pubic hair as described by the nurse who examined the victim. The defendant explained to police his belief that the hair might have come from the victim's panties when he used the underwear to masturbate, but the plausibility of that story was for the jury to decide.
Considering the testimony and evidence presented, we can determine that the direct evidence when viewed in the light most favorable to the state was sufficient to establish that the defendant was the perpetrator of the rape, robbery, burglary and possession of firearms by a convicted felon. All of the evidence, particularly the fingerprint evidence, proved that the defendant and only the defendant was the perpetrator of the rape, robbery, burglary and possession of firearms by a convicted felon. The defendant's fingerprint was found in the victim's bedroom. Additionally, the victim and the city worker described the defendant when they described the man who was present at the victim's house on the morning of the crimes. There is no reasonable probability of misidentification in this case. The state proved beyond a reasonable doubt that the defendant was the person who committed these crimes.
ERROR PATENT
We observe that the trial court fined the defendant $1,000 on the felon with a firearm conviction, in default of which the defendant would serve an additional 60 days in jail. An indigent defendant may not be subjected to imprisonment because he is unable to pay a fine which is part of his sentence. Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221 (1983); State v. Monson, 576 So. 2d 517 (La.1991); State v. Kerrigan, 27,846 (La.App. 2d Cir.4/3/96), 671 So. 2d 1242. A defendant's claim of indigence in such a situation may be discerned from the record. State v. Conway, 604 So. 2d 205 (La.App. 2d Cir.1992); State v. Williams, 484 So. 2d 662 (La.1986). The record indicates that the defendant is indigent, as he is represented on appeal by the Louisiana Appellate Project. Therefore, we vacate the portion of the sentence providing for additional jail time in the event of default of payment of the fine amounting to $1,000, relating to the felon with a firearm conviction.
CONCLUSION
The defendant's convictions are affirmed. We vacate the portion of the sentence *685 providing for additional jail time in the event of default of payment of the fine and affirm the sentences as amended.
AFFIRMED AS AMENDED.
NOTES
[1] Due to the victim's poor health and impending move out of state, she was unable to appear at the trial. However, by stipulation of the state and the defendant, the victim's video recorded testimony was played for the jury. The victim was subject to cross-examination by the defendant's attorney. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597853/ | 158 N.W.2d 754 (1968)
Frank MANDICINO and Anthony Boe, Appellants,
v.
Fred T. KELLY, James E. Anderson, Ralph E. Wilcox, Robert E. Carlson and W. Henry Hindman, Individually, and collectively as the Board of Supervisors of Woodbury County, Iowa, and Donald E. Linduski, Individually, and as County Auditor of Woodbury County, Appellees,
Norman Spencer, Rufus Sheldon, Ardell Countryman, Mervin Zelimer, Dwight Puttman, Bruce Haddock, John S. Lord, Iowa Farm Bureau Federation, and Woodbury County Farm Bureau, each an Iowa Corporation, Intervenors-Appellees.
No. 52693.
Supreme Court of Iowa.
May 7, 1968.
*756 Harry H. Smith, Sioux City, for appellants.
Edward F. Samore and Richard Beebe, Sioux City, for appellees.
Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for Fred T. Kelly, in his individual capacity, as appellee.
Buckingham, Seitzinger & Mason, Des Moines, for intervenors-appellees.
MASON, Justice.
This is a class action asking determination of the constitutionality of the statutory scheme adopted for election of the Woodbury County board of supervisors and for equitable relief if it is found unconstitutional.
I. Plaintiffs' appeal presents the issue whether section 39.19, Codes, 1962, 1966, in forbidding the election of more than two residents of Sioux City township to the board coupled with a provision for voting at-large when electoral districts are abolished, is in violation of Amendment 14 of the federal constitution and Article I of the state constitution where without this prohibition upon residency of board members more residents of Sioux City township might be elected.
Iowa county boards, largely at the discretion of the board itself, are elected either: (1) from districts as nearly equal in population as practicable, (2) at-large but nominated from districts as in (1) or (3) at-large but a limitation of one supervisor to a township except that a city over 35,000 population comprising a township may have two if a five or seven-man board is involved.
When this action was instituted Woodbury County was divided into five districts each of which elected a supervisor to the board. Sioux City township was one district with a population of 89,159, according to the 1960 federal census, and 23 rural townships with a total population of 18,690 made up the other four districts.
*757 Shortly thereafter on January 17, 1966, the board abolished supervisor districts and adopted an at-large election system for the election of new members to fill vacancies created by the expiration of the terms of present members. At the same meeting, over protest by the Sioux City township supervisor, the board voted to extend Sioux City township to include all of Sioux City proper, including portions of the city that were formerly part of an abutting township. Summarily the election of members will be by at-large vote of the county but limitation imposed that no one township have over one resident on the board except townships having over 35,000 population which may have two resident members. See sections 331.8 and 39.19, Code, 1962. This means that eventually Sioux City township with over 80 percent of the county's population can have but two resident supervisors on the five-man board and three supervisors will continue to be required to reside in the other 23 townships.
II. Plaintiffs, citizens and qualified voters of Sioux City initiated this action in their own behalf and on behalf of other citizens, residents and electors of their class. Defendant Linduski is the county auditor, other defendants are serving as the county board.
Certain citizens and voters in Woodbury County who are members of two Iowa corporations, the Iowa Farm Bureau Federation and the Woodbury County Farm Bureau, have intervened.
In their second amended and substituted petition plaintiffs allege in Division I that the board as the governing body of the county is required by statute to perform, when applicable, various legislative functions affecting the entire county; reapportionment of the board providing for election of members at-large by a county-wide electorate and for diversified residence by candidates for such board position by township is unconstitutional as violative of Amendment 14 to the federal constitution. In Division II plaintiffs allege the apportionment statutes relating to the election of supervisors in Woodbury County are violative of Article I of the Iowa Constitution.
Plaintiffs contend the apportionment method adopted is invidiously discriminatory.
III. The trial court held that in the election of supervisors there is no significance to the residency requirement in regard to a member's representative endeavor since when coupled with voting at-large his tenure is dependent upon serving the interests of all the people in the county, not just those of the township where he resides, and as each voter may cast his ballot for five candidates who will be especially concerned with his interests there is equality among all voters; thus there now is no discrimination or dilution in the voting power of citizens because of their place of residence. Plaintiffs' amended and substituted petition was dismissed and judgment for costs entered against them.
Of course, the decree was filed before the Supreme Court's decision April 1, 1968, in Avery v. Midland County, Texas, 390 U.S. 474, 88 S. Ct. 1114, 20 L. Ed. 2d 45.
Plaintiffs assign as propositions relied on for reversal refusal of the trial court to hold (1) one man, one vote principles are required by both federal and state constitutions in elections to governmental bodies in Iowa below the level of state legislature; (2) the Woodbury County board is such a legislative and governmental body that one man, one vote principles are required under federal and state constitutions in the election of its members; and (3) the present apportionment of the Woodbury County board is invidiously discriminatory to residents in Sioux City township since such apportionment designedly avoids the consequences of one man, one vote apportionment by preserving the controlling influences of rural areas containing less than 20 percent of the county's total population.
IV. We consider these three propositions other than in the order argued.
*758 Under their second assignment plaintiffs contend the Woodbury County board, along with other Iowa county boards of supervisors, is delegated certain legislative functions by the state legislature.
Political subdivisions of states, such as counties, are not sovereign entities; they are subordinate governmental instrumentalities created by the state to assist in carrying out state governmental functions. Reynolds v. Sims, 377 U.S. 533, 575, 84 S. Ct. 1362, 1388, 12 L. Ed. 2d 506; State ex rel. Iowa Employment Security Comm. v. Des Moines County, 260 Iowa 341, 149 N.W.2d 288, 291; and Bailey v. Jones, 81 S. D. 617, 139 N.W.2d 385, 388. A board of supervisors has power to make a large number of decisions having a broad range of impacts on all citizens of the county.
Chapter 332, Code, 1962, sets forth the broad powers and duties of these boards.
The board performs numerous duties in regard to elections, chapters 47, 48, 49, 51, and 52; it fills vacancies in elective county offices, section 69.8; approves appointment of temporary assistants to county officials, section 341.1, appoints certain officials county surveyor, section 355.1, zoning board of adjustment, section 358A.10, weed commissioner, section 317.3, county board of social welfare, 234.9; provides jails and rules and regulations for their operation, sections 356.19, 356.15; lets contracts in the name of the county, section 332.8, builds and maintains roads and bridges, sections 309.7, 309.10, 309.67, 309.73, 309.88, 309.89; administers the county welfare services, sections 347.21, 347A.3, 347A.7, 222.14, 227.14, 229.26, 234.9, 241A.13, 252.26, 252.34, 252.35, 253.1, 253.2; provides and maintains suitable law library, section 332.6; provides and maintains county library, section 358B.1, with a board of trustees for it, section 358B.4; provides offices for county officers, section 332.9, and supplies for their operation, 332.10; provides and maintains public disposal ground, 332.31, 332.32; erects, remodels and reconstructs buildings for county purposes with and without approval of citizenry, sections 345.1, 345.3; upon petition conducts hearings regarding relocation of county seats and orders such relocations if certain standards met, chapter 353; upon petition, conducts hearings and orders or disallows formation of, water districts, chapter 357, fire districts, chapter 357A, and sanitary districts, chapter 358; provides zoning regulations for the county, chapter 358A; provides for division of counties into townships, section 359.1, prohibits or regulates public displays, section 444.18; licenses and regulates businesses providing entertainment, foodstuff, prepared food or drink to the public, section 332.23; the board may revoke such licenses, section 332.27; conducts county elections on issue of liquor by the drink, section 123.27(e), and fixes hours during which liquor may be consumed on licensed premises, section 124.31 and sold, section 124.35; compromises claims against the county, section 332.12; abates nuisances, section 332.28; makes some discretionary adjustments in the compensation of county officers, section 332.21, and chapter 340; issues bonds, sections 346.1, 347A.7; chapter 455 grants extensive powers to the board for the establishment, maintenance, levy of taxes in support of and formulation of rules and regulations governing the operation of levee and drainage districts.
The board adopts a county budget and appropriates necessary funds, sections 344.1, 344.2, appropriates funds for a contingent account, section 344.3, and transfers funds from one departmental budget to another during the year, section 344.6.
The power of the board to levy taxes is provided for generally in chapter 444. Section 444.9 states in part:
"The board of supervisors of each county shall, annually, at its September session, levy the following taxes upon the assessed *759 value of the taxable property in the county:
"1. * * *
"2. For ordinary county revenue, not to exceed three and one-half mills on a dollar in counties having an assessed valuation of less than sixteen million dollars, not to exceed three mills on a dollar in counties having an assessed valuation of sixteen million dollars or more and less than twenty-six million dollars, * * * [etc]"
Special levies are authorized in section 444.10 for court expense, 444.11 for county orphan fund, and 444.12 for state institution fund. However, compositely these authorized levies do not set the upper limits of the board's power of levy. Nearly every chapter in which the above noted sections conferring powers upon the board are found, includes authorization of a tax levy for implementation of the powers conferred. Without attempting to construe every chapter to determine whether the levy provided for therein is codified within the general levy authorized in section 444.9, supra, as "ordinary county revenue" section 455.57 permits the levy upon lands within proposed drainage district to pay for construction of the district. Section 309.7 permits a special levy for construction and maintenance of secondary road systems within the county and section 309.89 for bridge construction and maintenance.
Other powers conferred upon the board include authority to adopt speed and weight limits on certain county roads, sections 321.285 and 321.471. It may change the course of travel of secondary roads, streams, water courses or dry runs, section 306.21.
Finally, the board has power to divide the county into districts for election of its own members.
Defendants and intervenors argue that practically every board created by the Iowa legislature likewise has by statute certain of and sometimes more of the same type of functions, citing as illustrative the board of cosmetology's authority to make rules for conducting examinations under chapters 147 and 157 and the authority of various boards under sections 155.19, 158.7 and 173.14. They contend it would stretch the credulity of the Court to be asked to hold that these various boards are legislative because they have the powers referred to, which are similar to those possessed by the board of supervisors.
In Avery v. Midland County, Texas, supra, a variety of functions assigned to the commissioners court by the Texas Constitution and various statutory enactments are set forth. A great number of these are similar to the powers conferred by our legislature on boards of supervisors. In this case, 88 S.Ct. at 1119, 20 L.Ed.2d at 52, the Court said, "The parties have devoted much effort to urging that alternative labels `administrative' versus `legislative' be applied to the Commissioners Court. As the brief description of the court's functions above amply demonstrates, this unit of local government cannot easily be classified in the neat categories favored by civics texts. The Texas commissioners courts are assigned some tasks which would normally be thought of as `legislative,' others typically assigned to `executive' or `administrative' departments, and still others which are `judicial.' In this regard Midland County's Commissioners Court is representative of most of the general governing bodies of American cities, counties, towns, and villages."
Defendants and intervenors also assert a great portion of the board's time is utilized in performing perfunctory duties such as approving bills, checking vouchers, considering bids, purchasing equipment, etc. One witness testified that in long years of association with the board, he had no knowledge it had ever enacted a single law. It did not have a code of laws or a book of ordinances. They further assert 90 percent of the board's time is taken up in performing duties which would otherwise be performed by a comptroller in a city or *760 state office, a state board such as the state fair board, the highway commission and other such boards and commissions, all of which duties are most essential but administrative in nature.
A similar argument advanced by the Texas Supreme Court in Avery v. Midland County, 406 S.W.2d 422, 426, where that Court said "the primary function of the commissioners court is the administration of the business affairs of the county * * Its legislative functions are negligible and county government is not otherwise comparable to the legislature of a state or to the federal Congress * * *" was rejected by the United States Supreme Court on review.
The relevant fact is that the powers of the board of supervisors include the authority to make a substantial number of decisions that affect all citizens, whether they reside inside or outside of Sioux City township.
The legislative authority of this state is vested in a General Assembly, Article III, section 1 of the Iowa Constitution, whereas boards of supervisors of a county have only such powers as are expressly conferred by statute or necessarily implied from the power so conferred. Hilgers v. Woodbury County, 200 Iowa 1318, 1320, 206 N.W. 660, 661.
Without spelling out the functions we believe reflect the delegation of substantial legislative power, we believe as stated in Hanlon v. Towey, 274 Minn. 187, 142 N.W.2d 741, 747, "it is sufficient to say that an examination of the statutes dealing with the power delegated persuades us that the legislature itself does not regard the county as solely an administrative arm of state government."
The fact the county also performs administrative functions and is somewhat responsive or subject to the legislature does not justify the denial of the application of the equal-representation principle to county boards. State ex rel. Sonneborn v. Sylvester, 26 Wis. 2d 43, 132 N.W.2d 249, 256.
Clearly in Iowa boards of supervisors possess the kinds of "governmental powers" which for purposes here necessitate their classification as legislative bodies.
In answer to defendants' and intervenors' first contention considered in this division, we point out that such powers are not to be confused with the powers of administrative boards and commissions to enact rules and regulations even though they have the effect of law. State ex rel. Sonneborn v. Sylvester, supra.
V. Possessed of such powers, the county boards are subject to the principle of one man, one vote in election of its members.
In Avery v. Midland County, Texas, supra, the U. S. Supreme Court stated, commencing at 88 S.Ct. at 1117-1121, 20 L.Ed.2d at 50-54:
"In Reynolds v. Sims, supra, the Equal Protection Clause was applied to the apportionment of state legislatures. Every qualified resident, Reynolds determined, has the right to a ballot for election of state legislators of equal weight to the vote of every other resident, and that right is infringed when legislators are elected from districts of substantially unequal population. The question now before us is whether the Fourteenth Amendment likewise forbids the election of local government officials from districts of disparate size. * * *
"The Equal Protection Clause reaches the exercise of state power however manifested, whether exercised directly or through municipal subdivisions of the State. * * *. Although the forms and functions of local government and the relationships among the various units are matters of state concern, it is now beyond question that a State's political subdivisions must comply with the Fourteenth Amendment. *761 The actions of local government are the actions of the State. * * *
"When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population. * * *
* * * * * *
"The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious. The conclusion of Reynolds v. Sims was that bases other than population were not acceptable grounds for distinguishing among citizens when determining the size of districts used to elect members of state legislatures. We hold today only that the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body.
* * * * * *
"* * * Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population."
Cases in which state highest courts applied the principles of Reynolds v. Sims to units of local government are collected in footnote 3 to Avery v. Midland County, Texas, supra. In this footnote are cited many federal court cases applying Reynolds v. Sims to local government. Many are cited in Meyer v. Campbell, infra. There are additional citations in Armentrout v. Schooler (Mo.), 409 S.W.2d 138, 143.
In Meyer v. Campbell, Iowa, 152 N.W.2d 617, 621, after reviewing cases of the United States Supreme Court starting with Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663, we said "there is nothing in these cases that indicates that the fundamental principle that all men are created equal, and thus accorded an equal vote, should not apply similarly to other inferior bodies that possess legislative power, when the method of their selection is by the elective process."
We hold the apportionment standards which apply to states also apply to those governmental units of the state that exercise general governmental functions and powers delegated to them by the state and are designed to be controlled by the voters of the geographic area served by the body; the county is a governmental instrumentality or division of the state and the board of supervisors is the legislative body of the county. The board exercises legislative powers delegated to it by the state; and the state may exercise its legislative powers only in a legislative body apportioned on a population basis, any general elective municipal organ to which it delegates certain of its powers must be subjected to the same basic constitutional requirement. In support see Avery v. Midland County, Texas, supra, 88 S.Ct. at 1118, 20 L.Ed.2d at 51; Seaman v. Fedourich, 16 N.Y.2d 94, 262 N.Y.S.2d 444, 209 N.E.2d 778, 782; and generally, Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col.L. Rev. 21, 23, 27.
Plaintiffs' first proposition is therefore sustained.
*762 VI. In support of their third proposition plaintiffs contend that the present statutory scheme here adopted for election of board members is invidiously discriminatory to residents in Sioux City township because it designedly avoids the consequences of one man, one vote apportionment by preserving a controlling influence to the population minority (rural residents) of Woodbury County through the requirement that a majority of the board reside in the rural areas; they concede the plan is not in violation of Amendment 14 solely because the residence requirement involves townships of grossly varying population (i. e., that board members reside among townships of grossly varying population) but urge there is no rational basis for at large system of voting which ensures voting control to residences of rural areas who constitute a small minority of the county's population.
Defendants and intervenors on the other hand contend the residence requirement of candidates under section 39.19 is not for voting or representation and is a valid statute, not violative of either the federal or state constitutions.
Section 39.19 states in part:
"Board of supervisors-limitation. No person shall be elected a member of the board of supervisors who is a resident of the same township with any of the members holding over, except that:
"* * *
"2. In counties having five or seven supervisors two members may be residents of a township which embraces a city of thirty-five thousand population."
The precise issue arising from these contentions is whether this section in forbidding election of more than two residents of Sioux City township, which, as previously noted, has 80 percent of the county's population, to the board when single member districts are abolished and voting is at-large is in violation of the Equal Protection Clause of Amendment 14, when absent this limitation more residents of Sioux City might be elected.
As determinative of this issue all cite and rely heavily upon Dusch v. Davis, 387 U.S. 112, 87 S. Ct. 1554, 18 L. Ed. 2d 656, which is factually quite similar and presented the question of the constitutional validity of an electoral scheme providing for at-large voting but requiring that members elected to the governing body reside elsewhere than wholly among the most populous districts which otherwise, by virtue of their voting strength, could have elected a greater number of residents to that body. We agree that case is determinative of the validity of the effect of the residency requirement here and believe that it supports plaintiffs' contentions.
In Dusch the city of Virginia Beach consolidated with adjoining Princess Anne County and adopted a borough form of government. The city council was composed of members elected at-large (four) and one each from the seven boroughs comprising the geographic area. The boroughs of Bayside, Kempsville and Lynnhaven were primarily urban having respective populations of 29,048, 13,900 and 23,731. The boroughs of Blackwater, Princess Anne, and Pungo were primarily rural and had respective populations of 733, 7211 and 2504. Virginia Beach was primarily tourist having a population of 8091. See Davis v. Dusch, 205 Va. 676, 139 S.E.2d 25, 26-27.
As can readily be seen, the urban boroughs could elect a resident majority of the 11-man council when considering the number of at-large candidates they could elect by virtue of their voting strength.
The United States Supreme Court held the electoral scheme guaranteeing each of the seven boroughs, widely variant in population, a resident representative on the governing body of the geographic unit was not invidiously discriminatory to the residents of the urban boroughs.
*763 The principal reason given for sustaining the plan is found in their approval of the trial court's findings.
"* * * `The principal and adequate reason for providing for the election of one councilman from each borough is to assure that there will be members of the City Council with some general knowledge of rural problems to the end that this heterogeneous city will be able to give due consideration to questions presented throughout the entire area. * * * [T]he historypast and presentof the area and population now comprising the City of Virginia Beach demonstrates the compelling need, at least during an appreciable transition period, for knowledge of rural problems in handling the affairs of one of the largest area-wide cities in the United States. * * * The `Seven-Four Plan' is not an evasive scheme to avoid the consequences of reapportionment or to perpetuate certain persons in office. The plan does not preserve any controlling influence of the smaller boroughs, but does indicate a desire for intelligent expression of views on subjects relating to agriculture which remains a great economic factor in the welfare of the entire population. * * *'" Loc. cit. 387 U.S. 116-117, 87 S. Ct. 1556 (Emphasis supplied).
The Court concluded, "The Seven-Four Plan seems to reflect a detente between urban and rural communities that may be important in resolving the complex problems of the modern megalopolis in relation to the city, the suburbia, and the rural countryside. * * *" Loc. cit. 387 U.S. 117, 87 S. Ct. 1556.
The emphasized language imposes limitations we believe to be conditions of acceptability where an attempt is made to reconcile the constitutional requirements of one man, one vote, and the need to strike a balance between the interests of the ever-decreasing number of rural residents and the ever-increasing number of urban residents. Existence of these limitations may justify constitutional deference to an infraction of the principle of approximate equality among voters by state and local governments in experimentations which the Court encourages to reflect detentes as needed. Avery v. Midland County, Texas, supra, 88 S.Ct. at 1120-1121, 20 L.Ed.2d at 53. However, the Supreme Court has made it quite clear that simply a desire to balance representation of urban and rural interests is not alone sufficient justification to impinge upon the equality guaranteed by the constitution. See Reynolds v. Sims, supra, 377 U.S. at 580 and 623, 84 S.Ct. at 1391 and 1413; Davis v. Mann, 377 U.S. 678, 692, 84 S. Ct. 1441, 1448, 12 L. Ed. 2d 609.
We therefore believe the holding of Dusch v. Davis, supra, is: Within a geographical unit comprised of disproportionately populated districts a requirement that some representatives to the governing body of that geographical unit necessarily reside among the less populous districts is not an invidiously discriminatory plan, on its face, to the voters of the most populous districts where the representatives are voted upon by the electorate of the entire geographic unit when such requirement does not manifest an evasive scheme to avoid the consequences of reapportionment or attempt to perpetuate certain persons in office nor preserve any controlling influence to the less populous districts.
The residency requirement here does not meet these conditions of acceptability for in limiting Sioux City township to two resident representatives on the board thereby guaranteeing the rural districts, resident representatives constituting a majority of the board, it preserves a controlling influence to the less populous (rural) districts and is per se invidiously discriminatory to the citizens of Sioux City township. Moreover, in redistricting Sioux City township it is clear the former board controlled by rural resident representatives intended the present scheme to preserve majority control to rural resident representatives, to perpetuate them in office and to avoid the consequences of a reapportionment *764 that will reflect one man, one vote representation. As previously noted, this extension of the Sioux City township area was accomplished over the objection of the only urban resident representative on the board.
We believe there is merit in plaintiffs' argument that apportionment in favoring rural voters over urban voters wrongfully creates two classes of voters within the geographic unit: (1) one class consists of voters residing in Sioux City township; (2) the other those voters residing outside that township.
If the Equal Protection Clause is violated when certain representatives are given an unequal number of constituents, the converse is also true; the Equal Protection Clause is violated if certain constituents are given an unequal number of representatives. Kruidenier v. McCulloch, 258 Iowa 1121, 142 N.W.2d 355, 375.
Here the rural population is given an unequal number of representatives primarily concerned with their interests whereas the urban residents of Sioux City township are denied the right to elect the number of representatives with their interest in mind that absent the residency requirement they could otherwise elect by virtue of their voting strength.
Defendants contend that this analysis presumes that the board members residing elsewhere than Sioux City township (i. e., rural townships) are not vigilant and responsive to the wishes of the residents of Sioux City township, thus ignoring practical realties, i. e., it is not accurate to treat a board member from rural townships as a representative of only the rural townships rather, since his tenure depends upon the county-wide electorate, he must be vigilant to serve the interests of all the people in the county.
This rationale was conceived in Fortson v. Dorsey, 379 U.S. 433, 438, 85 S. Ct. 498, 501, 13 L. Ed. 2d 401, factually and issuably dissimilar so not in point but analogously applied in Dusch v. Davis, supra, thus it is not without merit. However, a careful reading of Dusch v. Davis, supra, discloses that the Court relied upon this rationale only to obviate conclusion that guarantee of a resident representative for each of the disproportionately populated districts who were elected by the voters of the entire geographical unit was not per se invidiously discriminatory to the voters of the urban district. Only because the conditions justifying deviation from equal representation were met by the plan the Court temporarily approved it but warned,
"* * * If a borough's resident on the council represented in fact only the borough, residence being only a front, different conclusions might follow. * * * `As the plan becomes effective, if it then operates to minimize or cancel out the voting strength of racial or political elements of the voting population, it will be time enough to consider whether the system still passes constitutional muster.'" Dusch v. Davis, supra, 387 U.S. at 116-117, 87 S.Ct. at 1556.
It follows then that even though the plan in Dusch did not preserve a controlling influence to the rural districts, the residency requirement in guaranteeing the less populous rural districts a resident representative concededly elected by the geographic unit at-large would be invidiously discriminatory to the voters of the urban districts upon the showing that the rural resident representatives were disregarding the interests of the city as a whole favoring their borough's interests.
Our review in this equitable action is de novo and the scope of the review is the entire action. Rule 334, R.C.P.
In addition to being per se invidiously discriminatory as we have decided, supra, we believe the electoral scheme adopted here is invidiously discriminatory in operation, the rural residents on the board representing in fact only the rural area, residence being only a front, and has in fact *765 resulted in minimizing or canceling out the voting strength of the population majority.
The fact the rurally dominated board, regardless of protest, has assessed a five-eighths mill optional tax each year against Sioux City residents as well as the other 23 townships even though the funds are spent exclusively for the rural area is claimed as a factor indicating the rural resident representatives were disregarding the city's interest as a whole. The former board's refusal to adopt a welfare program particularly beneficial to plaintiffs and the class they represent which would have provided surplus farm foods to impoverished families at no county expense except the small distribution cost, only a minor fraction of which would have been borne by the rural residents, is cited as supporting evidence.
That board's petitioning the legislature to make no change in the apportionment of gas tax refunds between rural areas and cities and towns provides further support for our conclusion. The League of Municipalities was asking the city's percentage be increased to 15 percent, a 7 percent gain over the previous apportionment of these funds. One percent difference in the percentage would have given Sioux City township about $55,000 additional while the quota to the rural area would be cut by a minimal amount. The 7 percent increase would have meant $419,000 additional for road purposes in Sioux City township with a loss of approximately $35,000 to the rural area.
Although some motions pertaining to these controversies were highly objectionable in the form presented, the issue involved was called to the board's attention but did not receive consideration by the board as constituted.
The very situation warned against in Dusch v. Davis, supra, which had not yet occurred there, has been shown to exist in the operation of the scheme before us.
However complicated or sophisticated an apportionment scheme might be, it cannot, consistent with the Equal Protection Clause, result in a significant undervaluation of the weight of the votes of certain citizens merely because of where they happen to reside. W.M.C.A., Inc. v. Lomenzo, 377 U.S. 633, 653, 84 S. Ct. 1418, 1428, 12 L. Ed. 2d 568.
We hold Code section 39.19 in forbidding the election of more than two residents of Sioux City township to the board is violative of Amendment 14 of the federal constitution and Article I of the Iowa Constitution in the circumstances here. As supporting the conclusion reached here see Kruidenier v. McCulloch and Meyer v. Campbell, both supra.
VII. The conclusions reached in Divisions IV and V, supra, of this opinion relative to classification of boards of supervisors as legislative bodies and being subject to the principle of one man, one vote in the election of its members is not limited to Woodbury County.
VIII. "Reapportionment is primarily a matter for legislative consideration and determination, and judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so. Reynolds v. Sims, supra, 377 U.S., at 586, 84 S.Ct., at 1394." Kruidenier v. McCulloch, supra, 258 Iowa 1144, 142 N.W.2d at 368.
The legislature has the duty to establish a system of county government meeting constitutional standards and this Court approaches this problem as it did the apportionment of the state legislature in Kruidenier v. McCulloch, supra, where, in finding the apportionment of the existing law invalid, deferred the effect of the invalidity until the legislature had a reasonable time to act. It cannot be said that the legislature is unaware of the problem or has failed to act. Elections to the *766 board will be held in 1968 before the legislature would ordinarily convene.
Orderly operation of government requires that the county boards heretofore elected under section 39.19 and to be elected thereunder in 1968 be permitted to function for a reasonable period sufficient for the enactment of new legislation and that the validity of the acts of the board so elected should not be challenged upon the basis of this decision. Meyer v. Campbell, supra, Iowa, 152 N.W.2d at 624, and citations.
This type of procedure is born of necessity and was approved in Reynolds v. Sims, supra; W.M.C.A., Inc. v. Lomenzo, supra, 377 U.S. at 654-655, 84 S.Ct. at 1429, 12 L. Ed. 2d 568; and Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 676, 84 S. Ct. 1429, 1440, 12 L. Ed. 2d 595.
Plaintiffs have suggested that should we find the instant apportionment unconstitutional, we might allow the Woodbury County board to exercise its authority under Code section 359.1 to divide Sioux City township in such a manner that it might conceivably elect three supervisors under the present statute.
We prefer, however, that the Iowa legislature be afforded an opportunity to enact corrective legislation to provide Woodbury County residents constitutional apportionment for its board of supervisors.
As suggested in Kruidenier v. McCulloch, supra, Iowa, 142 N.W.2d at 368, the Iowa legislature must approach its assignment with the understanding that the Constitutions, both federal and state, permit no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body.
Consequently, the declaration contained in Division VI, supra, of this opinion shall be prospective in effect. We retain jurisdiction and, if for any reason corrective legislation with any inplementation required is not enacted by June 1, 1969, providing Woodbury County residents a system of county government in accordance with constitutional standards, we will entertain application of interested parties for further and appropriate relief.
IX. The action of the trial court in dismissing plaintiffs' substituted and amended petition and assessing costs against them is
Reversed.
All Justices concur, except RAWLINGS, J., who takes no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597895/ | 818 So. 2d 562 (2002)
UNITED SERVICES AUTOMOBILE ASSOCIATION, Appellant,
v.
Steven A. MODREGON and Tanya Modregon on behalf of themselves and all others similarly situated, Appellees.
Nos. 2D01-1324, 2D01-1598.
District Court of Appeal of Florida, Second District.
February 20, 2002.
William A. Gillen, Jr., and Richard M. Zabak of Gray, Harris, Robinson, Shackelford, Farrior, Tampa; and Dwight J. Davis, Thomas F. Urban, and S. Stewart Haskins of King & Spalding, Atlanta, GA, for Appellant.
Richard J. Lantinberg of Cooper, Ridge & Beale, P.A., Jacksonville; Kenneth J. Vinale of Milberg Weiss Bershad Hynes & Lerach LLP, Boca Raton; and Janine L. Pollack and Bruce D. Bernstein of Milberg Weiss Bershad Hynes & Lerach LLP, New York, NY, for Appellees.
BLUE, Chief Judge.
In consolidated cases, United Services Automobile Association (USAA) appeals an order that denied its motion to dismiss and an order that denied its motion to compel an appraisal. We affirm the order denying the appraisal; we dismiss the appeal of the order that denied USAA's motion to dismiss.
Steven A. and Tanya Modregon have filed a class action lawsuit against their automobile insurer, USAA. They alleged that USAA has a corporate policy requiring the use of non-OEM replacement parts[1] for repairs. They further alleged that this corporate policy constitutes a breach of their insurance policy. Under the insurance policy, USAA's limit of liability for loss is "the lesser of the actual cash value of the property or part damaged or *563 stolen, or the amount necessary to repair or replace the property or part." The insurance policy defines actual cash value as "the amount which it would cost to replace the stolen or damaged property with new property of like kind and quality, less allowance for depreciation and physical deterioration." The insurance policy also states that "[i]f we and you do not agree on the amount of loss, either may demand an appraisal."
USAA filed a motion to compel an appraisal. The trial court denied the motion, holding that "the gravamen of [the] complaint challenges a policy decision by Defendant to use non-OEM parts, not the relative value of the damage to Plaintiff's vehicle" and that "[w]hether non-OEM parts are parts of `like kind and quality' is not an appropriate issue for an appraiser to determine." We have reviewed the class action complaint and agree that it states more than a disagreement over the amount of loss for the Modregons' vehicle. Accordingly, we affirm the order denying USAA's motion to compel an appraisal. See Fla. Select Ins. Co. v. Keelean, 727 So. 2d 1131 (Fla. 2d DCA 1999).
As to the order denying USAA's motion to dismiss, this order is not appealable. See Fla. R.App. P. 9.130 (listing appealable, nonfinal orders but omitting orders denying motions to dismiss); RD & G Leasing, Inc. v. Stebnicki, 626 So. 2d 1002, 1003 (Fla. 3d DCA 1993) (finding no interlocutory jurisdiction over order denying motion to dismiss). Therefore, we dismiss the appeal of this order.
Case 2D01-1324 is dismissed; case 2D01-1598 is affirmed.
NORTHCUTT and GREEN, JJ., Concur.
NOTES
[1] "`Nonoriginal equipment manufacturer aftermarket crash part' means an aftermarket crash part made by any manufacturer other than the original vehicle manufacturer or [its] supplier." § 501.32(3), Fla. Stat. (2000). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597927/ | 818 So. 2d 1124 (2002)
Heather J. MARTIN; Annette McKay Martin, Mother and Representative of the Heirs at Law of Lisa May; Judy Smith, Mother and Court Appointed Conservator of the Person and Estate of William Greg Smith; Mamie Ivy, Mother and Representative of the Heirs at Law of Calandra C. Ivy, Deceased; Delmontez Magee; Pamela Louise Harris; Lorie Lee Armstrong; Annie Stevens, Mother and Representative of the Heirs at Law of Yusef Mckinley, Deceased; Frankie M. Hughes, Mother and Representative of the Heirs at Law of Chris Hughes, Deceased; and Willie Paul Dixon, Father and Representative of the Heirs at Law of Marcus Dixon, Deceased
v.
Dr. Susan FLANAGAN, Administratrix of the Estate of Mary R. Vanderbeck, Deceased; Scruggs Farms, a Joint Venture; and Scruggs Farms and Supplies, LLC.
No. 2001-CA-00300-SCT.
Supreme Court of Mississippi.
May 23, 2002.
*1125 Jeffrey Dean Leathers, Ronald D. Michael, Bonneville, Michael D. Greer, Tupelo, attorneys for appellants.
Gregory M. Hunsucker, William M. Beasley, Tupelo, Charles G. Copeland, Rebecca S. Jordan, Ridgeland, attorneys for appellees.
EN BANC.
WALLER, J., for the Court.
¶ 1. Heather J. Martin, Annette McKay Martin, Judy Smith, Mamie Ivey, Calandra C. Ivey Delmontez Magee, Pamela Louise Harrris, Lorie Lee Armstrong, Annie Stevens, Frankie M. Huges and Willie Paul Dixon ("Martin") filed suit in the Circuit Court of Lee County for the death of three individuals and serious injuries to five others as a result of an automobile accident on an icy road in Lee County on January 12, 1996.[1] After filing an answer and conducting extensive discovery, the Estate of Mary R. Vanderbeck, Scruggs Farms and Scruggs Farms and Supplies, LLC, filed separate motions for summary judgment, which were later granted. The circuit court made two findings: (1) "As long as owners of unimproved property do not perform an affirmative act altering the natural flow of water, they do not in Mississippi have an affirmative duty in tort to prevent surface water from flowing across their property onto a roadway" and; (2) Martin had "presented no credible evidence... that the defendants created an artificial condition on the property."
¶ 2. On appeal, Martin contends that the use of the land by Estate of Vanderbeck and Scruggs Farms created artificial conditions which caused unreasonable water run-off. We find that Martin's arguments are without merit and affirm the grant of summary judgment to the Estate and Scruggs Farms.
FACTS
¶ 3. The alleged proximate cause of the accident in question was the accumulation of water on a public road. The water allegedly ran off from the defendants' property and subsequently froze, creating a hazard on the public road. The circuit court ruled that Martin had failed to prove legal causation and to create a genuine issue of material fact.
¶ 4. The property adjacent to the ice formation was owned by the Estate. The property had been leased by Scruggs *1126 Farms for several years. The lease does not specify that any duties were imposed on either party and does not contain a legal description of the leased land.
¶ 5. Martin offered evidence which showed the existence of three or more field roads that extended from the property side of the culvert and up a hill. Martin also filed the affidavit of Richard Forbes, a licensed professional mechanical engineer, who stated that excessive wear and erosion of these field roads created ruts in the field roads. These ruts captured surface water from the property and channeled it downhill toward Coley Road. The water then flowed over the culvert and spilled over onto Coley Road. The point of Coley Road immediately adjacent to the culvert was the only area in the immediate vicinity where ice formed.
¶ 6. It is uncontested that none of the land, including the land on the hill or hillside, adjacent to Coley Road was in cultivation. Mitchell Scruggs testified during a deposition that Scruggs Farms' equipment accessed fields located on the land by turning off Coley Road and crossing a culvert. Scruggs rarely used the ingress/egress over the culvert, and when it was used, the tractors turned immediately left and drove drive north, parallel to Coley Road, and not up the hill. The record does not show that Scruggs cleared, graded, or made new water channels on the land. There is no proof that the natural contours of the land had been altered.
DISCUSSION
¶ 7. A trial court's decision to grant summary judgment is reviewed de novo. Hartford Ins. Co. v. Sheffield, 808 So. 2d 891, 894 (Miss.2001); Hernandez v. Vickery Chevrolet-Oldsmobile Co., 652 So. 2d 179, 181 (Miss.1995). Entry of summary judgment is appropriate when there exists no genuine issue of material fact that can be found and the moving party is entitled to judgment as a matter of law. Hartford Ins. Co. v. Sheffield, 808 So.2d at 894; Brown v. Credit Ctr., Inc., 444 So. 2d 358, 362 (Miss.1983). The burden of demonstrating that no genuine issue of fact exists is on the moving party, viewing all evidence in the light most favorable to the non-moving party. Hartford Ins. Co. v. Sheffield, 808 So.2d at 894; Cook v. Children's Med. Group, P.A., 756 So. 2d 734, 739 (Miss.1999).
I. WHETHER THE CIRCUIT COURT ERRED IN FINDING THAT THE PROPERTY WAS UNIMPROVED.
II. WHETHER THE LOWER COURT ERRED BY FINDING THAT THE DEFENDANTS DID NOT PERFORM AN AFFIRMATIVE ACT WHICH CREATED THE DANGEROUS CONDITION.
III. WHETHER THE DEFENDANTS HAD A DUTY TO EXERCISE REASONABLE CARE IN PREVENTING THE CREATION OF A DANGEROUS CONDITION.
¶ 8. To "improve" land means to "develop" land. Black's Law Dictionary 761 (7th ed.1999). Land may be considered to be "improved" even though the value of the land has not been enhanced by the improvement. Id.
¶ 9. An owner of land which is situated over other lands ("the upper landowner") is liable for water which flows onto land which lies underneath the incline when he has, by artificial means, discharged the water in a manner that unreasonably damages the lower landowner. Hall v. Wood, 443 So. 2d 834, 839 (Miss. 1983).
*1127 ¶ 10. The duties of upper landowners are set out in Hall, as follows:
Where the flow of waters has been rendered by the operation of the laws of physics upon the natural contours of the land, a lower landowner has no rights against his upper neighbor for damages thus caused. Certainly upper landowners may use well established watercourses through lower lands to drain upper properties. On the other hand, an upper landowner may not unreasonably alter natural drainage patterns to the detriment of his lower neighbor.
Id. (citations omitted).
¶ 11. Hall goes on to state that an upper landowner may use his lands in a reasonable manner, even if, as a result of this use, the waters harm lower landowners. Id. However, the use of the land cannot be unreasonable. See, e.g., Homes, Inc. v. Anderson, 235 So. 2d 680, 682 (Miss. 1970); Lauck v. Gilbert, 252 Miss. 371, 173 So. 2d 626 (1965); American Sand & Gravel Co. v. Rushing, 183 Miss. 496, 502, 184 So. 60 (1938); Bd. of Drainage Comm'rs v. Bd. of Drainage Comm'rs, 130 Miss. 764, 95 So. 75 (1923).
¶ 12. As set out in Hall, it is impossible for an upper landowner to retain all water that comes upon property:
The owner of unimproved upper lands may allow diffused surface waters to drain from his lands unimpeded in their natural state even though lower landowners are affected. To require an upper landowner to retain all waters coming onto his property from all sources, especially rainfall, would (a) be to require an impossibility and (b) impose an intolerable burden on the owners of upper lands in every water shed.
443 So.2d at 839.
¶ 13. In the absence of proof of an affirmative act creating an artificial condition, the upper landowner cannot be liable for the damage allegedly caused by the diffusion of surface waters. Id.; see also Fazio v. Fegley Oil Co., 714 A.2d 510, 514 (Pa.Cmwlth.1998), appeal denied, 557 Pa. 656, 734 A.2d 863 (1999); Restatement (Second) of Torts § 368 (1965). In Hall, the Court held that an upper landowner who stripped his land should reasonably have known his actions would result in erosion which in turn would result in substantial silting, sedimentation, and general pollution of lake, and that the lower landowners were entitled to injunctive relief against him. 443 So.2d at 840. In Fazio, the Pennsylvania court defined an artificial condition, for which an upper landowner might be liable, as one where the grade of the property was artificial, where the flow of water differed from the natural channel of water flow, or where the upper landowner did something to increase the quantity of the water flow. 714 A.2d at 513-14.
¶ 14. Martin argues that the Scruggs' use of the field roads and of the culvert for ingress and egress constituted an artificial condition, and that the use of the field roads constituted an affirmative act, thus making the defendants liable for the dangerous condition on the road. Scruggs responds that no affirmative act was performed and that there is no basis for liability. Vanderbeck contends that summary judgment was proper because the Estate had no duty to travelers on the road.
¶ 15. Martin cites and relies on Maucieri v. Ware, 263 A.D. 721, 30 N.Y.S.2d 672, 673 (N.Y.App.Div.1941). In that case, a pedestrian brought suit for injuries received from a fall onto an icy sidewalk abutting the defendant's land. The plaintiff alleged that this fall was caused by the icy accumulation of water discharged by the defendant's driveway. On appeal, the court found that there was evidence sufficient for a jury to conclude that the driveway *1128 changed the natural contours of the land and caused surface waters to concentrate and discharge on the sidewalk. This ruling appears to be in conflict with Mississippi law, which requires the upper landowner's use to be unreasonable.
¶ 16. Scruggs cites LaForm v. Bethlehem Township, 346 Pa.Super. 512, 499 A.2d 1373, 1378 (1985), for the rule that "an upper landowner is liable for the effects of surface water running off his property only when he has (1) diverted the water from its natural channel by artificial means or (2) unreasonably or unnecessarily increased the quantity or changed the quality of water discharged." Id. In Fazio, the LaForm rule was adopted, holding that proof of a single identifiable act or a dramatic change in the landscape caused by the upper landowner is required. 714 A.2d at 513. Fazio alleged that the defendants were liable for injuries she incurred when she slipped on ice. Water from an artificial condition created by a mini-mart had accumulated on a public thoroughfare. The court held that the artificial condition caused unnecessary and unreasonable water runoff which resulted in a risk of harm to the public when the water froze. 714 A.2d at 514. See also LaForm, 499 A.2d at 1378.
¶ 17. The Restatement (Second) of Torts § 368, "Conditions Dangerous to Travelers on Adjacent Highway," provides as follows:
A possessor of land who creates or permits to remain thereon an excavation or other artificial condition so near an existing highway that he realizes or should realize that it involves an unreasonable risk to others accidently brought into contact with such condition while traveling with reasonable care upon the highway, is subject to liability for physical harm thereby caused to persons who:
(a) are traveling on the highway, or
(b) foreseeably deviate from it in the ordinary course of travel.
Also instructive is Restatement (Second) of Torts § 349, which defines the duties of landowners to maintain highways or warn motorists of dangerous conditions on the highway. A possessor of land over which there is a public highway or private right of way is not subject to liability for physical harm caused to travelers upon the highway or persons lawfully using the way by his failure to exercise reasonable care (a) to maintain the highway or way in safe condition for their use, or (b) to warn them of dangerous conditions in the way which, although not created by him, are known to him and which they neither know nor are likely to discover.
¶ 18. Mississippi follows the rationale of LaForm and Fazio, requiring an unreasonable affirmative act on the part of the landowner for liability to result. No genuine issue of material fact exists that the use of the land by Scruggs and/or the Estate was unreasonable.
¶ 19. These issues are without merit.
CONCLUSION
¶ 20. For the reasons stated above, the Lee County Circuit Court's grant of summary judgment to the Vanderbeck Estate, Scruggs Farms and Scruggs Farms and Supplies is affirmed.
¶ 21. AFFIRMED.
PITTMAN, C.J., SMITH, P.J., COBB, CARLSON AND GRAVES, JJ., CONCUR. DIAZ, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE, P.J., AND EASLEY, J.
DIAZ, J., Dissenting:
¶ 22. Because I would find that the trial court erred in granting summary judgment, I respectfully dissent.
*1129 ¶ 23. As related by the majority, this Court laid out the duties of landowners to their fellow landowners in Hall v. Wood, 443 So. 2d 834 (Miss.1983),
[W]e hold that upper landowners such as Hall are entitled to make reasonable use of their land. Where there is a reasonable likelihood of damage to the property of lower landowners, however, upper landowners are required to do whatever is reasonable to minimize the damage. The fact that some damage nevertheless occurs to the lower landowners does not render the upper landowner liable. On the other hand, where the upper landowner has done nothing in an effort to ameliorate the adverse effect on lower landowners and where the damage is in fact substantial, and further where the development activities of the upper landowner are a major proximate cause of that damage, the lower landowners are entitled to damages and/or injunctive relief as may be appropriate.
Id. at 839.
¶ 24. Furthermore, in Mizell v. Cauthen, 251 Miss. 418, 426, 169 So. 2d 814, 816 (1964), this Court likewise found that a defendant landowner was under the "duty of using reasonable care to prevent his property, which abutted the public way, from becoming a source of danger to the persons using the same." Id.
¶ 25. The majority narrows this duty of reasonable care by relying on a case from a foreign jurisdiction, Fazio v. Fegley Oil Co., 714 A.2d 510, 514 (Pa.Cmwlth.1998)(holding that an unreasonable affirmative act is required on the part of the landowner to create liability). I, however, believe that based on Hall, Mizell, and the Restatement (Second) of Torts §§ 349 & 368 (1965), landowners such as the defendants in the case at bar are simply required to use reasonable care in creating or maintaining roadways on their property. Nevertheless, I conclude that a question of fact exists in this case no matter which interpretation of the law is applied.
¶ 26. Under both interpretations, the creation and maintenance of a man-made roadway is an "affirmative act" which is subject to an analysis of whether that act or actions were reasonable. Here, there is evidence to show that the water run-off from defendants' field roads created a dangerous condition on Coley Road. An engineer, Richard Forbes, stated the following in his affidavit:
4. In my opinion, the cause of the accident was surface water which drained down from adjoining landowners with a higher elevation down field roads and certain ruts in their property which flowed directly across the top of an existing culvert and across both lanes of traffic of Coley Road.
5. At the time this water was flowing across the highway, the temperature dropped below freezing and caused a large ice spot to form.
6. In my opinion the ice spot would not have occurred but for the artificial, man-made condition which caused the water to flow onto Coley Road.
¶ 27. Furthermore, Robert B. Coley, who is very familiar with Coley Road, stated in his affidavit that he was aware of water run-off freezing on Coley Road "dozens of times."
¶ 28. As stated by the majority, the burden of demonstrating that no genuine issue of material fact exists is on the moving party, viewing all evidence in the light most favorable to the non-moving party. Hartford Ins. Co. v. Sheffield, 808 So. 2d 891, 894 (Miss.2001); Cook v. Children's Med. Group, P.A., 756 So. 2d 734, 739 (Miss.1999). Here, I believe a genuine *1130 issue of material fact exists as to whether the defendants did exercise reasonable care. Thus, summary judgment was inappropriate.
McRAE, P.J., AND EASLEY, J., JOIN THIS OPINION.
NOTES
[1] We have previously reviewed Martin's wrongful death claims against the City of Tupelo in City of Tupelo v. Martin, 747 So. 2d 822 (Miss.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1550636/ | 229 B.R. 806 (1999)
In re TULSA LITHO COMPANY, Debtor.
Neal Tomlins, Plan Trustee for the Chapter 11 Bankruptcy Estate of Tulsa Litho Company, Plaintiff-Appellant,
v.
BRW Paper Co., Inc., Defendant-Appellee.
BAP No. NO-98-058, Bankruptcy No. 96-01814, Adversary No. 97-00378.
United States Bankruptcy Appellate Panel of the Tenth Circuit.
February 23, 1999.
*807 Neal Tomlins (Ronald E. Goins and Ellen E. Gallagher with him on the brief), Tomlins & Goins, P.C., Tulsa, OK, for Plaintiff-Appellant.
Mark Stromberg of Shields, Britton & Fraser, P.C., Dallas, TX, for Defendant-Appellee.
Before McFEELEY, Chief Judge, CLARK, and ROBINSON, Bankruptcy Judges.
OPINION
McFEELEY, Chief Judge.
Neal Tomlins, Plan Trustee for the Chapter 11 Bankruptcy Estate of Tulsa Litho Company (the "Trustee"), appeals the judgment of the United States Bankruptcy Court for the Northern District of Oklahoma dismissing the Complaint to Avoid and Recover Preferential Transfer and finding that such preferential transfer fell within the ordinary course of business exception of 11 U.S.C. § 547(c)(2). We affirm.
I. Appellate Jurisdiction
The Bankruptcy Appellate Panel has jurisdiction over this appeal. The bankruptcy court's judgment disposed of the adversary proceeding on the merits and is subject to appeal under 28 U.S.C. § 158(a)(1). See Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 712, 116 S.Ct. 1712, 135 L.Ed.2d 1 (1996). The Trustee's notice of appeal was timely under Fed.R.Bankr.P. 8002, and the parties have consented to this Court's jurisdiction by failing to elect to have the appeal heard by the United States District Court for the Northern District of Oklahoma. 28 U.S.C. § 158(c)(1); Fed.R.Bankr.P. 8001; 10th Cir. BAP L.R. 8001-1.
II. Standard of Review
"For purposes of standard of review, decisions by judges are traditionally divided into three categories, denominated questions of law (reviewable de novo), questions of fact (reviewable for clear error), and matters of discretion (reviewable for `abuse of discretion')." Pierce v. Underwood, 487 U.S. 552, 558, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988); see Fed.R.Bankr.P. 8013; Fowler Bros. v. Young (In re Young), 91 F.3d 1367, 1370 (10th Cir.1996). The bankruptcy court's determination that the transaction at issue fell within the ordinary course of business exception of § 547(c)(2) is a question of fact, reversible only if clearly erroneous. See Payne v. Clarendon Nat'l Ins. Co. (In re Sunset Sales, Inc.), 220 B.R. 1005, 1020 (10th Cir. BAP 1998).
III. Background
Tulsa Litho Company ("Tulsa Litho"), is a corporation engaged in the business of sheetfed printing for commercial uses. Tulsa Litho uses large quantities of paper in its business.
In April 1996, Tulsa Litho was acquired by Consolidated Graphics. Shortly thereafter, Tulsa Litho contacted BRW Paper Company *808 ("BRW"), to purchase paper on an open credit account. Consolidated Graphics had been a customer of BRW's for quite some time, and enjoyed favorable rates. Tulsa Litho submitted a credit application to BRW using Consolidated Graphics's credit references as its own. Thereafter BRW delivered paper to Tulsa Litho on open account, based on Tulsa Litho's affiliation with Consolidated Graphics. BRW's first transactions with Tulsa Litho occurred in April 1996, as evidenced by the following invoices[1]:
Invoice No. Date Amount
60646 4/17/96 $ 756.00
60698 4/18/96 $3,770.00
60790 4/23/96 $7,052.43
60969 4/26/96 $7,700.70
Invoice numbers 60646, 60790, and 60969 had payment terms of "1% 30, net 31," meaning that Tulsa Litho would receive a 1% discount if the invoice were paid within thirty days, but full payment was nevertheless due thirty-one days after the date on the invoice. Invoice number 60698 had payment terms of "2% 20, net 21," indicating a 2% discount if paid within twenty days, or full payment due twenty-one days after the date on the invoice.
On or about May 8, 1996, Tulsa Litho issued a cashier's check to BRW in the amount of $18,893.55 in payment of the April invoices. This amount is consistent with the 2% 20-day payment term historically enjoyed by Consolidated Graphics, but is inconsistent with the terms printed on the invoices. BRW received Tulsa Litho's payment at its lockbox and posted the payment to Tulsa Litho's account on May 20, 1996.
Tulsa Litho filed its petition for relief under Chapter 11 of the United States Bankruptcy Code on May 15, 1996. During the period from February 19, 1996 to May 8, 1996, Tulsa Litho made 473 payments to its creditors. Of those payments, nine were made by cashier's check, including the payment to BRW. Tulsa Litho unilaterally determined which of its creditors it would pay by cashier's check.
Bryan Barlow, one of BRW's principals, testified that it was customary for BRW to receive payments at its lockbox in the form of corporate checks, cashier's checks, money orders, and cash, and, although most payments received were in the form of corporate checks, it was not unusual to receive some payments in the form of cashier's checks. Mr. Barlow also testified that BRW was not aware that Tulsa Litho was experiencing financial difficulty and did not demand payment from Tulsa Litho in the form of a cashier's check or money order.
Tulsa Litho's payment of BRW's April invoice by cashier's check is the transfer at issue in this appeal. The parties do not dispute the bankruptcy court's finding that this transaction constitutes a preferential transfer under 11 U.S.C. § 547(b).[2] What is at issue on appeal is the bankruptcy court's determination that the transaction was not avoidable because it fell within the ordinary course of business exception contained in 11 U.S.C. § 547(c)(2).
IV. Discussion
The "ordinary course" of business exception is found at 11 U.S.C. § 547(c)(2) and provides that the trustee may not avoid a preferential transfer:
(2) to the extent that such transfer was
*809 (A) in payment of a debt incurred by the debtor in the ordinary course of business or financial affairs of the debtor and the transferee;
(B) made in the ordinary course of business or financial affairs of the debtor and the transferee; and
(C) made according to ordinary business terms. . . .
The Tenth Circuit has held that the ordinary course of business exception contains a subjective test in subsection (B) and an objective test in subsection (C). Sunset Sales, 220 B.R. at 1020. The subjective test examines whether the transfers at issue were "ordinary as between the parties" and the objective test examines whether the transfers were "ordinary in the industry." Id. A transaction must meet both tests in order to qualify as an exception.
The ordinary course of business exception is an affirmative defense. Clark v. Balcor Real Estate Fin., Inc. (In re Meridith Hoffman Partners), 12 F.3d 1549, 1553 (10th Cir.1993). The creditor has the burden of establishing each of these elements by a preponderance of the evidence. Id. This defense is narrowly construed. Sunset Sales, 220 B.R. at 1020 (quoting Jobin v. McKay (In re M & L Business Machine Co.), 84 F.3d 1330, 1339 (10th Cir.1996)). Findings under these subsections are usually factual, and accordingly are reviewed under the clearly erroneous standard. Id.
The parties do not dispute that the transaction meets the requirements of § 547(c)(2)(A). The Trustee contends that BRW failed to establish its affirmative defense that the preferential transfer was within the ordinary course of business exception because it did not prove by a preponderance of the evidence that the transfer met both the subjective test and the objective test of this exception.
A. The Subjective Test
When applying the subjective test of subsection (B), courts compare transfers from the pre-preference period with transfers during the preference period and weigh the following four primary factors: "(1) the length of time the parties were engaged in the transaction in issue; (2) whether the amount or form of tender differed from past practices; (3) whether the debtor or creditor engaged in any unusual collection or payment activity; and (4) the circumstances under which the payment was made." Sunset Sales, 220 B.R. at 1020-21. When considering the first two factors, if there are no prior transactions, courts should generally look to see whether the debtor adhered to the contract payment terms. Id. at 1021.
The Trustee argues that BRW did not prove that it met the requirements of the subjective test for the following reasons:
1) BRW did not prove that the invoices were paid according to the contract payment terms;
2) BRW did not prove that payment by a cashier's check was a usual payment activity for Tulsa Litho;
3) BRW did not prove that the circumstances under which it received the cashier's check were within the ordinary course of Tulsa Litho's business or financial affairs.
The Trustee's arguments are without merit. The transaction at issue was the first between BRW and Tulsa Litho. The Trustee argues that since Tulsa Litho had no prior dealing with BRW and it did not pay the invoices according to their printed terms,[3] BRW failed the first part of the subjective test. The bankruptcy court held that BRW met this part of the test based on evidence that the "actual credit terms between the parties" were other than those printed on the invoice. (Aplts. App. at 0047 n. 7). The court reasoned that it was the dealings between the parties and not the printed terms on an invoice that established the course of dealing.[4]
*810 The bankruptcy court's findings are consistent with the policy behind the ordinary course of business exception, which is to leave normal business practices between the two parties undisturbed.[5] It is what is normal between the two parties that controls, not necessarily the printed words of an invoice.
The record supports the bankruptcy court's holding. Although Tulsa Litho did not pay BRW in accordance with the printed terms on the invoices it received from BRW, it did pay BRW in accordance with Consolidated Graphic's established payment practices. There was evidence presented from which the bankruptcy judge could find that when Tulsa Litho was acquired by Consolidated Graphics, it assumed its payment practices and that BRW dealt with Tulsa Litho like it dealt with Consolidated Graphics and all its affiliates.[6]
The third prong of the subjective test examines both the debtor and the creditor's conduct to determine their normal payment practices. The Trustee contends that because Tulsa Litho used cashier's checks to pay only 9 out of the 473 invoices during the preference period, BRW failed to establish that payment with a cashier's check was within the parties' normal business practices.
The bankruptcy court made factual findings that BRW did not demand payment by cashier's check and that Tulsa Litho made a unilateral decision to pay BRW with a cashier's check. In the absence of any additional factors, the bankruptcy court held that the singular fact that Tulsa Litho paid with a cashier's check was insufficient to defeat the ordinary course of business exception.[7] We agree.
This part of the subjective tests looks for "unusual payment activity." The Trustee relies heavily on the fact that only nine invoices were paid with a cashier's check. By itself, the number of invoices paid by cashier's check is not dispositive. What is significant for this prong of the subjective test is what constitutes a normal payment method for these two parties. It was not unusual for BRW to receive payment by cashier's check. In the absence of any other evidence that payment with a cashier's check was unusual, we hold that payment by cashier's check alone is not enough to defeat the ordinary course of business exception.
The circumstances under which the debtor made the preferential transfer is the focus of the fourth prong of the subjective test. The Trustee argues that because Tulsa Litho used cashier's checks to pay those creditors who had been "helpful" following its acquisition by Consolidated Graphics, the circumstances *811 under which the check was transferred were not within Tulsa Litho's ordinary course of business.
The issue is not whether the transfer in question is preferential; it is. The issue is whether the transfer was within the ordinary course of business exception. The bankruptcy court found that neither the circumstances surrounding BRW's behavior nor Tulsa Litho's behavior were unusual. Specifically, the bankruptcy court found it significant that BRW did not ask for the cashier's check and often received such checks for outstanding invoices. While the bankruptcy court did find that Tulsa Litho issued the cashier's check to BRW hoping that BRW would offer unsecured credit to them after it filed for bankruptcy, it also found that this behavior was not unusual. This holding is not clearly erroneous.
B. Objective Test
The Tenth Circuit has interpreted the phrase "ordinary business terms" in the objective test of subsection (C) to mean those terms that are used in "`normal financing relations': the kinds of terms that creditors and debtors use in ordinary circumstances when debtors are healthy." Sunset Sales, 220 B.R. at 1021 (quoting Clark v. Balcor Real Estate Fin., Inc. (In re Meridith Hoffman Partners), 12 F.3d 1549, 1553 (10th Cir.1993)).
The Trustee asserts that BRW failed to meet this test for two reasons: 1) it did not present evidence that it was "ordinary" for creditors to sell products to a financially troubled company without obtaining its financial information; and 2) it did not show that use of a cashier's check on the eve of bankruptcy is within "ordinary business terms."
The bankruptcy court found that BRW was unaware of the financial difficulties of Tulsa Litho, that BRW extended credit to Tulsa Litho in accordance with the terms that it extended credit to Consolidated Graphics,[8] that the credit terms extended by BRW were ordinary within industry standards, and the payment made by Tulsa Litho to BRW was within these credit terms. There was evidence before the Court to support these findings. It was not clearly erroneous for the bankruptcy court to find that this evidence satisfied the objective test.
V. Conclusion
For the reasons set forth above, the judgment is AFFIRMED.
NOTES
[1] BRW also delivered paper to Tulsa Litho in May 1996, but, with the exception of invoice number 61620, which was paid as an administrative claim under the terms of the confirmed plan, these invoices remain unpaid and are not the subject of this appeal.
Invoice No. Date Amount
61112 5/01/96 $1,446.64
61299 5/08/96 $ 829.27
61493 5/13/96 $1,193.40
61620 5/15/96 $1,920.73
61524 5/15/96 $ 9.71
61983 5/24/96 $ 672.00
[2] The bankruptcy court made the following findings of fact: 1) BRW was a creditor of Tulsa Litho; 2) the Debtor transferred to BRW the sum of $18,893.55 by cashier's check on or about May 8, 1996 (the "Transfer"); 3) the Transfer was made within 90 days of the date of Debtor's Petition for Relief under Chapter 11; 4) the Debtor was insolvent at the time of the transfer; and 5) the Transfer enabled BRW to receive more than BRW would receive if the case were one under Chapter 7, the Transfer had not been made, and BRW received payment pursuant to Chapter 7 on such debt. The bankruptcy court also concluded that the Transfer was made on account of antecedent debt.
[3] Specifically, the timing of the payment and the amount of the cashier's check varied from the printed invoice terms.
[4] See Yurika Foods Corp. v. United Parcel Serv. (In re Yurika Foods Corp.), 888 F.2d 42, 45 (6th Cir.1989)(finding that irregular business transactions may be considered ordinary if such transactions are within a consistent course of dealing between the parties) (quoting In re Fulghum Constr. Corp., 872 F.2d 739, 742 (6th Cir.1989)).
[5] The policy behind the ordinary course of business exception is "to leave undisturbed normal financial relations, because it does not detract from the general policy of the preference section to discourage unusual action by either the debtor or his creditors during the debtor's slide into bankruptcy." S.Rep. No. 95-989, at 88 (1978), reprinted in 1978 U.S.C.C.A.N. 5787, 5874.
[6] Brian Barlow, currently the general manager for BRW and an employee of the paper industry for fourteen years, testified that BRW extended credit to Tulsa Litho after receiving a financial application from them in which they represented themselves as a subsidiary of Consolidated Graphics. Based on that information, BRW gave Tulsa Litho the same standardized credit terms they gave Consolidated Graphics and all of its affiliates.
[7] The bankruptcy court distinguished cases in which payment with a cashier's check did defeat the ordinary course of business exception by noting that in these cases, several additional factors played an important role in the decision. See Everlock Fastening Sys., Inc. v. Health Alliance Plan (In re Everlock Fastening Sys., Inc.), 171 B.R. 251 (Bankr.E.D.Mich.1994) (holding that the issuance of a cashier's check for past due insurance premiums did not meet the ordinary course of business exception when the cashier's check was issued hours before the petition was filed, it covered more items than previous practice, and the creditor and debtor had a course of dealing encompassing 144 separate payments that were not made with a cashier's check); Flatau v. Marathon Oil Co. (In re Craig Oil Co.), 31 B.R. 402 (Bankr.M.D.Ga.1983) (holding that it was not within the ordinary course of debtor's business to pay with a cashier's check when the creditor requested cashier's checks, a third party had requested that the creditor join in an involuntary petition, the debtor was delinquent in its payments and over its credit limit), aff'd, 785 F.2d 1563 (11th Cir.1986).
[8] See supra note 6. Tulsa Litho provided a financial statement to BRW citing Consolidated Graphic's credit references. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1032400/ | FILED
NOT FOR PUBLICATION JUL 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10681
Plaintiff - Appellant, D.C. No. 2:10-cr-00576-KJD-
GWF-1
v.
BRYAN HISER, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued January 16, 2013
Submitted July 8, 2013
San Francisco, California
Before: FARRIS and BYBEE, Circuit Judges, and ADELMAN, District Judge.**
The United States appeals Bryan Hiser’s sentence imposed after he pled
guilty to two counts of violating 18 U.S.C. § 922(g)(1). The United States
contends that the district court erred in determining that Hiser’s prior burglary
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
convictions did not constitute crimes of violence for purposes of sentence
enhancement according to U.S.S.G § 2K2.1(a)(2). We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
We review the district court’s interpretation of the sentencing guidelines de
novo. United States v. Alvarez-Hernandez, 478 F.3d 1060, 1063 (9th Cir. 2007).
Hiser’s prior two convictions were for burglary in violation of Nev. Rev. Stat.
205.060. Nevada’s burglary statute is facially broader than the generic definition
of burglary because it “does not require the entry to have been unlawful in the way
most burglary laws do.” Descamps v. United States, No. 11-9540, 2013 WL
3064407, at *4 (U.S. June 20, 2013). Nevada has long since eliminated “[t]he
common-law vestige of ‘breaking’ as an element in the crime of burglary.”
McNeeley v. State, 409 P.2d 135, 136 (Nev. 1964) (citing State v. Watkins, 11 Nev.
30 (1876)). Under Nevada’s statute, consent to entry is not a defense, “so long as
the defendant was shown to have made the entry with larcenous intent.” Thomas v.
State, 584 P.2d 674, 677 (Nev. 1978) (citing favorably for support People v.
Deptula, 373 P.2d 430, 431–32 (Cal. 1962) (en banc)). Accordingly, Nevada
courts have upheld convictions for burglary that did not include unlawful entry.
See, e.g., Stephans v. State, 262 P.3d 727 (Nev. 2011) (upholding burglary
conviction for shoplifting). Thus, Nevada’s burglary statute is quite similar to that
of California’s. See Descamps, at *4 (citing People v. Barry, 29 P. 1026, 1026–27
(Cal. 1892) (“The common-law element, to wit, the use of force by breaking, in
order to constitute burglary, was originally a part of our statute; but it has long
since ceased to exist . . . . That the entry is made in the daytime, when the store is
open for business, may render it more difficult to prove the criminal intent present
in the mind of the defendant when he enters; but that is a matter of evidence, and
not a question of law.”)). “In sweeping so widely, [Nevada’s burglary statute] goes
beyond the normal, ‘generic’ definition of burglary.” Id. Therefore, Hiser’s prior
two convictions could not constitute crimes of violence under the categorical
approach. See id. at *5.
Additionally, because the Nevada statute is indivisible with respect to the
element of entry—an element we determined is broader than the generic definition
of burglary—we are precluded from applying the modified categorical approach
under the Supreme Court’s recent decision in Descamps. See id. at *14. Reading
the Nevada burglary statute in conjunction with Nev. Rev. Stat. 205.065, as the
government contends we must, does not alter this conclusion, as the latter statute
only indicates what reasonable inferences a jury may make if they determine the
entry was unlawful. It does not change the fact that an individual can be convicted
under the Nevada statute without “breaking and entering or [committing] similar
conduct . . . [and covers] a shoplifter who enters a store, like any customer, during
3
normal business hours.” Id. at 4. Therefore, we are precluded from implementing
the modified categorical approach in conducting our categorical analysis of the
Nevada burglary statute. See id. at *5, *14.
AFFIRMED.
4 | 01-03-2023 | 07-08-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1550647/ | 114 F.2d 494 (1940)
HOHENTHAL
v.
SMITH.
No. 7461.
United States Court of Appeals for the District of Columbia.
Decided July 22, 1940.
*495 Harlan Wood and Levi H. David, both of Washington, D. C., for appellant.
Austin F. Canfield and William T. Hannan, both of Washington, D. C., for appellee.
Before STEPHENS, MILLER, and RUTLEDGE, Associate Justices.
RUTLEDGE, Associate Justice.
The appeal is from a directed verdict and judgment for defendant Howard Lee Smith in an action for damages growing out of alleged malpractice in causing a subcutaneous needle to be broken off in the body of plaintiff Mary Eleanor Browning Hohenthal and failing to remove it promptly. The verdict was directed at the close of plaintiff's evidence, which, so far as pertinent to the issues on appeal, is substantially as follows:
January 24, 1936, defendant performed an operation on plaintiff for gall bladder disability at Emergency Hospital. Immediately following the operation plaintiff was removed to the room which she had engaged in the hospital. Because plaintiff had lost a considerable amount of body fluid during the operation, defendant instructed an intern to administer a hypodermoclysis, consisting of a saline and glucose solution. This the intern proceeded to do while plaintiff was still unconscious from the anaesthetic and after defendant had left. The equipment for the hypodermoclysis was furnished by the hospital and was brought in by a nurse. There is evidence tending to show that the lights had been dimmed in the room and were not turned up during the injection. While the intern was inserting the needles in plaintiff's sides under the armpits the needle on the right side broke off at the hub, leaving a segment two inches in length in the subcutaneous tissues. He examined the hub carefully and testified that it appeared to be a "little blackish" or rusty inside, leading him to conclude that it was latently defective. He tried to withdraw the broken needle but was unable to do so and called the resident physician, Dr. Mitrani. After several attempts to retrieve the needle Dr. Mitrani called defendant. Defendant decided to allow the needle to remain temporarily.
Plaintiff felt pain in her right side at various times during the next six weeks, but she apparently never demanded and defendant did not volunteer information as to its cause. On March 7, 1936, defendant informed her that the needle had been broken off in her side and that it should be removed. She immediately consulted another doctor, who advised her that the needle should be removed at once. She returned to defendant on March 9 and he operated that day to extract the needle. There is evidence to show that the needle was rusty when removed. Plaintiff testified that the defendant told her on March 16 that the needle was rusty and that the intern had been "careless" in allowing the room to remain darkened during the hypodermoclysis. After the needle was removed plaintiff continued to feel pain in her right side and consulted four other doctors. One of these, Dr. Fifer, treated her rather extensively, but he felt that he did her little good. He testified as follows: "I thought at first that she had a painful scar. But the further along I went, the more I believed it was not a painful scar, but more a worked-up case, psychological." The other doctors whom she consulted did not testify.
The trial court directed the jury to return a verdict for defendant on the grounds that (1) defendant was not responsible for the negligence of the intern, if he was negligent, since plaintiff had failed to prove that the intern was in defendant's employ; (2) plaintiff had failed to prove that defendant's treatment after the needle was broken off in plaintiff's body was not in accordance with the standard of physicians practicing in the District. We think the trial court's ruling was correct on both points.
There is authority for the view that an operating surgeon is liable for the *496 negligence of hospital employees while actually assisting him in the operating room.[1] But where employees of the hospital are negligent in carrying out the surgeon's instructions as to treatment after the operation, the overwhelming weight of authority holds that the surgeon is not liable in the absence of a showing that he was negligent in giving the instructions or selecting the persons to carry them out, that he was present and could have avoided the injury by exercising due care, or that his special contract relative to the negligent employee was such as to make the doctrine of respondent superior applicable.[2] These cases clearly hold that the mere fact that the surgeon gives the instructions, or even specially designates the particular employee who is to carry out the instructions,[3] does not give rise to a master-servant relationship. Part of the service furnished to the patient and charged for by the hospital is the assistance of nurses, interns and attendants in caring for the patient after the operation pursuant to instructions given by the operating surgeon. They perform the duty of their employer (the hospital) to the patient when they carry out the instructions of the doctor. Such evidence as there is on the point indicates that it was part of the normal duties of interns at Emergency Hospital to give hypodermoclyses after operations. There is no suggestion that it is the sort of thing which the operating surgeon must do himself, that it is not customary to have interns do it, or that defendant expressly or impliedly contracted to perform it himself.[4]
It follows that defendant's giving instructions to the intern to administer a hypodermoclysis did not alter the master-servant relationship between the hospital and the intern and did not create an employment contract or relation between defendant and the intern. The fact that defendant's instructions related to a "medical measure" rather than to "usual nursing measures" cannot in itself create an employment relation.[5] It is not suggested *497 that defendant was negligent in giving his instructions, or in assigning the duty to the intern,[6] and, as we hold that the doctrine of respondent superior is not applicable, we need not decide whether the intern was negligent.
Plaintiff contends that, even though there was no original negligence or defendant is not liable for it, he was negligent in failing to remove the needle for over six weeks after it was broken off in plaintiff's side. We think this contention must fail because plaintiff has not substantiated it with any evidence in the record. It is clear that a plaintiff in a malpractice action has the burden of proving that the defendant was negligent.[7] It is equally clear that to prove negligence plaintiff must show that defendant's practice did not accord with the standard of members of his profession in the same locality.[8] Plaintiff has proved that defendant allowed the broken needle to remain in her side for over six weeks, but she has not proved that it was negligent to do so. Only two doctors were called as witnesses by plaintiff the intern and Dr. Fifer. Neither was asked whether the treatment given by defendant was contrary to accepted practice among physicians in the District, or even whether he considered the treatment negligent. The other doctors who had examined and treated plaintiff were not called, and plaintiff expressly disavowed any intention to subpoena them.
Plaintiff contends that even though she has failed to produce evidence of negligence in the treatment she is entitled to go to the jury under the doctrine of res ipsa loquitur. But defendant's conduct does not speak for itself as being negligent. We cannot say as matter of law that the mere leaving of the needle in the patient's body under the circumstances shown by the evidence was sufficient to sustain a verdict of negligence or that the length of time which elapsed before defendant informed plaintiff of its presence and removed it was sufficient for this purpose. The operation was a major one. It left the patient greatly weakened, as shown by the necessity for the hypodermoclysis and other evidence. The patient's own evidence shows that she was of highly nervous disposition. These facts, which are uncontradicted, certainly point as clearly to the conclusion that the decision to allow the needle to remain until the patient's strength was recovered sufficiently to withstand the effects of the removal, physical and psychological, was proper, if not essential to preventing serious impediment to recovery, as to that of negligence. In fact, we think they constitute no evidence of or basis for inferring negligence.
We think also the same conclusion must be reached with reference to the so-called delay in making the needle's presence known to the plaintiff and removing it. The operation took place on January 24. Plaintiff remained in the hospital until February *498 10, when she was removed to her home in an ambulance. Defendant thereafter attended her at home. On February 27 she visited defendant at his office, and returned on March 7, when he informed her of the presence of the needle and told her, "We will have to take it out before it either causes an infection or moves down to a danger zone." Two days later, March 9, defendant removed the needle at the hospital, using a local anaesthetic.
The total length of time which elapsed between the operation and giving plaintiff the information concerning the needle's presence was six weeks. More than two of these were spent in the hospital and when she left it she was removed in an ambulance. Thereafter recovery appears to have been rapid, and within a little more than three weeks after she returned to her home and within ten days after she first appears to have been able to go to defendant's office, he informed her fully concerning the facts and the necessity for removal. We cannot say as matter of law that defendant should have informed her earlier or that a jury would be justified in finding that he should have done so. He acted with reasonable promptness in view of all the circumstances and a verdict that it was negligent for him not to do so earlier, on the evidence here presented, hardly could be sustained. The mere fact that plaintiff suffered pain from the needle during the period prior to its removal does not make the failure to remove it earlier negligent. In addition to the shortness of the time, it must be remembered that her physical condition for at least ten days following the operation was serious, her tendency toward nervousness was high, and the location of the needle in fatty tissue made danger of infection or movement to a zone of danger slight. In these circumstances there was no need for haste and there may have been real need for delay sufficient to assure that excitement or psychological disturbance incident to the removal would not cause a relapse in the patient's physical recovery. In the light of these facts the evidence indicates that the delay was not negligent rather than the contrary.
Furthermore, appellant misapplies the doctrine of res ipsa loquitur. It is permissibly applied when the facts which the plaintiff proves are sufficient to sustain an inference of negligence, although evidence directly establishing the negligent act is not available.[9] Here the evidence disclosed fully the nature of the acts alleged to be negligent and as we have said, in the absence of evidence to the contrary, they present no reasonable basis for inferring negligence. Furthermore, if defendant's conduct were as obviously negligent or susceptible of an inference of negligence as plaintiff says it was, it would seem there could be no difficulty in securing confirmation of this fact from qualified physicians. Although she called two physicians to testify, as has been stated, neither was questioned on this crucial issue. The failure to question them in this respect or to call others may be consistent with plaintiff's view that negligence on the facts was so obvious that expert opinion was not required. It may be equally consistent with the view that such opinion, if presented, would be adverse.
Giving the evidence the interpretation most favorable to plaintiff,[10] we think she has failed to prove that defendant was negligent or to establish a sufficient basis for permitting the jury reasonably to infer that he was. The judgment is affirmed.
NOTES
[1] Aderhold v. Bishop, 1923, 94 Okl. 203, 221 P. 752, 60 A.L.R. 137; Notes, 1929, 60 A.L.R. 147; 1930, 65 A.L.R. 1023.
[2] Harris v. Fall, 7 Cir., 1910, 177 F. 79, 27 L.R.A.,N.S., 1174; Norton v. Hefner, 1917, 132 Ark. 18, 198 S.W. 97, L.R.A.1918C, 132; Hunner v. Stevenson, 1913, 122 Md. 40, 89 A. 418 (1914) 27 Harv.L.Rev. 492; Baker v. Wentworth, 1892, 155 Mass. 338, 29 N.E. 589; Broz v. Omaha Maternity & General Hospital Association, 1914, 96 Neb. 648, 148 N.W. 575, L.R.A.1915D, 334; Stewart v. Manasses, 1914, 244 Pa. 221, 90 A. 574; Meadows v. Patterson, 1937, 21 Tenn. App. 283, 109 S.W.2d 417; Wright v. Conway, 1925, 34 Wyo. 1, 241 P. 369, 1926, 242 P. 1107; Perionowsky v. Freeman, Q.B.,1866, 4 Foster & F. 977; Note, 1929, 60 A.L.R. 147, 150; cf. Harlan v. Bryant, 7 Cir., 1936, 87 F.2d 170; Olson v. Bolstad, 1925, 161 Minn. 419, 201 N.W. 918; Hale v. Atkins, 1923, 215 Mo.App. 380, 256 S.W. 544; Morrison v. Henke, 1916, 165 Wis. 166, 160 N.W. 173; Malkowski v. Graham, 1919, 169 Wis. 398, 172 N.W. 785, 4 A.L.R. 1524, and Note, 1919, 4 A.L.R. 1527; Note, 1919, 4 A.L.R. 191. See also Reynolds v. Smith, 1910, 148 Iowa 264, 127 N.W. 192, 194.
In Messina v. Société Francaise de Bienfaissance, La.App.,1936, 170 So. 801, the two concurring judges apparently took the view that a hospital employee becomes temporarily the employee of the surgeon while carrying out the latter's instructions even as to aftertreatment. We think this view, in its broad implications, is contrary to the clear weight of authority. Saucier v. Ross, 1916, 112 Miss. 306, 73 So. 49, which has been described as contrary to the weight of authority [Note, 1927, 46 A.L.R. 1454, 1458], holds merely that the physician is liable where by the exercise of due care he could have discovered the negligent act of the hospital employee in time to avert its harmful consequences.
There is authority to the effect that, where by contract the employee becomes pro tempore the employee of the surgeon, the latter may be liable. Simons v. Northern Pacific Ry., 1933, 94 Mont. 355, 22 P.2d 609; cf. Mullins v. Du Vall, 1920, 25 Ga.App. 690, 104 S.E. 513, (1921) 34 Harv.L.Rev. 563.
[3] Cf. Meadows v. Patterson, 1937, 21 Tenn.App. 283, 109 S.W.2d 417.
[4] Cf. Harlan v. Bryant, 7 Cir., 1936, 87 F.2d 170.
[5] The distinction is suggested in a concurring opinion in Messina v. Société Francaise de Bienfaissance, La.App., 1936, 170 So. 801, where it is said that nursing services come within the hospital's contract, whereas "medical measures" do not. Aside from creating the difficulty of distinguishing between "nursing" and "medical" activities, this thesis would appear to have the strange effect of making the hospital liable for virtually none of the acts of its interns, whereas the surgeon would be liable for practically all of them. Interns, being doctors, obviously are retained by the hospital to perform medical services, just as nurses are retained to perform nursing services. Why the hospital should be liable (if it is liable under any circumstances merely for the negligent acts of its servants, as to which we express no opinion) for the negligence of some of its servants (nurses) but not of others (interns) when it contracts to furnish the services of both to the patient is difficult to understand. Conversely, why the surgeon should be liable for the negligence of some of the hospital's servants (interns) but not of others (nurses) when he has not contracted to furnish the services of either to the patient is equally difficult of comprehension. In determining whether he has impliedly contracted to furnish the services in question, the fact that he might perform them himself is not controlling. The significant question is whether the services are of the type normally performed by the hospital through its servants, whether nurses or interns.
[6] Cf. Levy v. Vaughan, 1914, 42 App. D.C. 146.
[7] Cayton v. English, 1927, 57 App.D.C. 324, 23 F.2d 745; Carr v. Shifflette, 1936, 65 App.D.C. 268, 82 F.2d 874; Ewing v. Goode, C.C.,S.D.Ohio, 1897, 78 F. 442.
[8] Sweeney v. Erving, 1910, 35 App.D. C. 57, 43 L.R.A.,N.S., 734, affirmed, 1913, 228 U.S. 233, 33 S.Ct. 416, 57 L. Ed. 815, Ann.Cas.1914D, 905; Levy v. Vaughan, 1914, 42 App.D.C. 146; Carson v. Jackson, 1922, 52 App.D.C. 51, 281 F. 411; Cayton v. English, 1927, 57 App.D.C. 324, 23 F.2d 745; Wilson v. Borden, 1932, 61 App.D.C. 327, 62 F.2d 866; Carr v. Shifflette, 1936, 65 App.D. C. 268, 82 F.2d 874.
[9] Moore v. Clagett, 1919, 48 App.D.C. 410, 415; Fisher v. Washington Coca-Cola Bottling Works, 1936, 66 App.D.C. 7, 9, 84 F.2d 261, 105 A.L.R. 1034; Faras v. Lower California Development Co., 1915, 27 Cal.App. 688, 695, 151 P. 35, 38; Cook v. Newhall, 1913, 213 Mass. 392, 395, 101 N.E. 72, 73-74; Fitzgerald v. Southern Ry., 1906, 141 N.C. 530, 54 S.E. 391, 6 L.R.A.,N.S., 337.
[10] Jackson v. Capital Transit Co., 1938, 69 App.D.C. 147, 99 F.2d 380. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1550648/ | 374 B.R. 579 (2007)
In re Earl Evans HYLTON, II, Robin Roberts Hylton, Debtors.
No. 07-70320.
United States Bankruptcy Court, W.D. Virginia, Roanoke Division.
August 22, 2007.
*580 Berrell F. Shrader, Blacksburg, VA, for Debtors.
DECISION AND ORDER
ROSS W. KRUMM, Bankruptcy Judge.
The matter before the court is the objection to the confirmation of the Debtors' proposed Chapter 13 Plan ("Plan") by eCAST Settlement Corporation ("eCAST"), a creditor in the Debtors' bankruptcy case. The Court conducted a hearing on the objection on April 25, 2007. Both parties submitted authorities in support *581 of their respective positions. After due consideration of the evidence and authorities and for the reasons stated herein, the objection is overruled in part and sustained in part.
BACKGROUND
The facts relevant to a decision in this matter are not in dispute. On February 28, 2007, the Debtors filed a voluntary petition for relief pursuant to Chapter 13 of the Bankruptcy Code.[1] Both Schedule I and Form B22C reflect a household size of four. Schedule I reflects total monthly gross income of $8,611.[2] Schedule J reflects monthly disposable income of $201.08. Form B22C reflects a gross monthly income of $8,907.59[3] and monthly disposable income of $126.74.
The Debtors' list $73,986.90 of unsecured debt on Schedule F and $200,817.65 in secured debt on Schedule D, which reflects liens on the residence of the Debtors, two vehicles, a recreational boat, and household furniture. According to the terms of the vehicle loans, the vehicles will be paid off within the sixty months following the filing date of the Plan.[4] In calculating their monthly expenses on Form B22C, the Debtors claim the IRS Local Transportation Ownership Expense allowance for both vehicles.
On April 12, 2007, eCAST filed an objection to the confirmation of the Debtors' proposed Chapter 13 Plan. The objection raises two issues. The first issue is whether the Plan satisfies the disposable income test. Specifically, eCAST argues that the Debtors have improperly claimed the ownership expense deduction for their two vehicles, which will be owned free and clear of liens during at least some portion of their Plan, and their boat, which eCAST contends is an impermissible expense. The second issue is whether Section 1325(b)(1)(B), as amended by the Bankruptcy Abuse Prevention and Consumer. Protection Act of 2005 ("BAPCPA"), permits debtors with above median income to enter into a plan of shorter duration than sixty months.[5]
DISCUSSION
This court has jurisdiction over the parties aid subject matter of this proceeding under, 28 U.S.C. §§ 151, 157, and 1334. This is a case filed under Title 11. The court may hear this core preceding under 28 U.S.C. § 157(b)(2). Venue is proper in this District under 28 U.S.C. § 1409(a).
Section 1325(a)(3) states that a court shall confirm a plan if, among other things, it is "proposed in good faith and not by any means forbidden by law." Section 1325(b)(1)(B) provides that, if either the trustee or the holder of an allowed, secured claim objects to confirmation of a plan, the court may not approve the plan unless, as of the effective date of the plan, "the plan provides that all of the debtor's projected disposable income to be received in the applicable commitment period ... will be applied to make payments under the plan." The issues raised by the objection *582 of eCAST turn on the interpretation of the phrase "projected disposable income to be received in the applicable commitment period." Id. (emphasis added). However, the determination of the issues raised by eCAST remain contingent upon a determination of whether the Debtors' income falls above or below the median income in the state where the Debtors reside.
I. Calculation of Income under Official Form B22C
Chapter 13 debtors are required to file a calculation of current monthly income on Official Form B22C. Interim Bankruptcy Rule 1007(b)(6). If the calculation exceeds the statewide median income for a household of the same size, the debtors must then complete a calculation of disposable income. Id. The Debtors filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code on February 28, 2007. The Debtors' reside in Virginia. The Debtors' household includes four members. According to Form B22C, the Debtors' total gross monthly income, derived from their average monthly income during the six months prior, to filing the bankruptcy petition, is $8,907.59. Annualized, this current income amounts to $106,981.08. In Virginia, the median income for a four person household is $79,931.00.[6] Therefore, the Debtors' income is above the median.
II. Projected Disposable Income
In calculating disposable income under Section 1325(b), the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 ("BAPCPA") distinguishes between debtors with income above and those below the median family income for similarly-sized households. In re Barr, 341 B.R. 181, 185 (Bankr.M.D.N.C.2006). For debtors with below-median-income in the state where the debtor resides, disposable income is determined by using Schedules I and J, as was done prior to the passage of BAPCPA. Barr, 341 B.R. at 185. For the debtors with above-median-income in the state where the debtor resides, the amount of disposable income is determined by using the means test provided for in Section 707(b)(2). 11 U.S.C. § 1325(b)(3)(2006). Therefore, the disposable income of the Debtors in this case must be determined by using the means test. At issue in this case are the Debtors' vehicle and boat expenses, which the Debtors contend are allowed under the means test.
A. Deductions for Vehicle Ownership Expense
In determining a disposable income figure, the means test requires an above-median debtor calculate expenses and deductions, pursuant to Section 707(b)(2)(A) and (B), using. Form B22C. 11 U.S.C. § 1325(b)(3); In re Girodes, 350 B.R. 31, 37 (Bankr.M.D.N.C.2006). Section 707(b)(2)(A)(ii)(I), provides, in part:
The debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor's actual monthly expenses for the categories specified as Other Necessary. Expenses issued by the Internal Revenue Service for the area in which the debtor resides, as in effect on the date of the order for relief[.]
11 U.S.C. § 707(b)(2)(A)(ii)(I).
The Local Standards include a standard for transportation. The Local Transportation Standards include an allowance for *583 vehicle operating expenses and for vehicle ownership expenses. These standards vary depending on the region of the country where a debtor resides as well as the number of vehicles a debtor owns.
In this case, the Debtors took the ownership allowance for their two vehicles that will be owned free of any liens within the sixty months following the petition date. eCAST objects to the Debtors' claim of the ownership allowance, arguing that the Debtors may not claim the ownership expense for debt free vehicles. The courts are split concerning this issue.
A number of courts have concluded that a debtor may not claim the ownership allowance under the Local Transportation Standards if the debtor owns a vehicle debt free. In re Harris, 353 B.R. 304 (Bankr.E.D.Okla.2006); In re Oliver, 350 B.R. 294 (Bankr.W.D.Tex.2006); In re McGuire, 342 B.R. 608 (Bankr.W.D.Mo. 2006); In re Hardacre, 338 B.R. 718 (Bankr.N.D.Tex.2006). These courts rely upon' a section of the Internal Revenue Manual, which instructs that "if a taxpayer has a car payment, the allowable ownership cost added to the allowable operating cost equals the allowable transportation expense," but, "if a taxpayer has no car payment, only the operating cost portion of the transportation standard is used to figure the allowable transportation expense." Internal Revenue Manual, Financial Analysis Handbook § 5.15.1.7(4)(b). The Manual also provides that the ownership expense is allowed only for the "purchase and/or lease of a vehicle." Internal Revenue Manual, Financial Analysis Handbook § 5.8.5.5.2. Reliance upon the language of the Manual is based upon the Section 707(b)(2)(A)(ii)(I), which states that the debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the Local Transportation Standards. McGuire, 342 B.R. at 613. In short, these courts interpret the plain language of Section 707(b)(2)(A)(ii)(I) to place a cap on a debtor's expense allowances.
Other courts have concluded that a debtor may claim an ownership allowance under the Local Transportation Standards if the debtor owns the vehicle debt free. In re Lynch, 368 B.R. 487 (Bankr.E.D.Va. 2007); In re Enright, 2007 WL 748432 (Bankr.M.D.N.C. Mar.6, 2007), 2007 Bankr.LEXIS 812; In re Hartwick, 352 B.R. 867 (Bankr.D.Minn.2006); In re Fowler, 349 B.R. 414 (Bankr.D.Del.2006). These courts read the language of Section 707(b)(2)(A)(ii)(I) to provide a fixed allowance, rather than a cap on the available deduction.
This court finds the arguments for permitting the fixed ownership allowance persuasive. In interpreting the Bankruptcy Code, the starting point for the court's inquiry into congressional intent is the statutory language itself. Lamie v. U.S. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). "It is well established that `when the statute's language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.'" Id. (quoting Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6, 120 S.Ct. 1942, 147 L.Ed.2d 1 (2000) (internal quotation marks omitted) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989) (in turn quoting Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 61 L.Ed. 442 (1917)))).
Section 707(b)(2)(A)(ii)(I) provides that "[t]he debtor's monthly expenses shall be the debtor's applicable monthly expense amounts specified under the National Standards and Local Standards, and the debtor's actual monthly expenses for the categories specified as Other Necessary *584 Expenses." 11 U.S.C. § 707(b)(2)(A)(ii)(I) (emphasis added). The use of "applicable" with respect to National and Local Standards and "actual" with respect to Other Necessary Expenses indicates that Congress used these different terms to achieve different results. See In re Enright, 2007 WL 748432, at *7, 2007 Bankr.LEXIS 812, at *7; In re Farrar-Johnson, 353 B.R. at 230-31; In re Fowler, 349 B.R. at 418. To give these terms different meaning is fitting given that the allowances listed in the National and Local Standards are contingent upon where the debtor lives and the Other Necessary Expenses are not. See In re Enright, 2007 WL 748432, at *6, 2007 Bankr.LEXIS at *6 (citing U.S. Trustee Program Means Testing, August 3, 2007, available at http://www.usdoj.gov/ ust/eo/bapcpalmeanstesting.htm). Therefore, the expenses under the Local Standards only need to be applicable to the debtor, "because of where he lives and how large his household is. It makes no difference whether he `actually' has them." In re Farrar-Johnson, 353 B.R. at 231.
Furthermore, although this court finds the statutory language unambiguous, the legislative history of the statute supports the same finding. United States v. Sheek, 990 F.2d 150 152-53 (4th Cir.1993) ("Statutory construction must begin with the language of the statute and the court should not look beyond that language unless there is ambiguity."). As the court explained in Fowler:
A prior version of the BAPCPA which was never passed defined "projected monthly net income" for the means test to require a calculation of expenses as follows:
(A) the expense allowances under the applicable National Standards, Local Standards, and Other Necessary Expenses allowance (excluding payments for debts) for the debtor ... in the area in which the debtor resides as determined under the Internal Revenue Service financial analysis for expenses in effect as of the date of the order for relief.
H.R. 3150, 105th Congress (1998) (emphasis added). The reference to the Internal Revenue Service financial analysis was replaced by the language currently in section 707(b)(2)(A) which simply states that a debtor gets the "applicable monthly expense amounts specified under the National and Local Standards." 11 U.S.C. § 707(b)(2)(A)(ii)(I)"
The change from the prior version evidences Congress' intent that the Courts not be bound by the financial analysis contained in the IRM and lends credence to the Court's conclusion that it should look only to the amounts set forth in the Local Standards. See, e.g., Transcontinental & Western Air, Inc. v. Civil Aeronautics Bd., 336 U.S. 601, 606[, 69 S.Ct. 756, 93 L.Ed. 911] (1949) (relying on legislative history to prior unenacted bill for clarification of language used in bill that was ultimately enacted); Springfield Indus. Corp. v. United States, 663 F.Supp. 128, 11 Ct. Int'l Trade 331, 338 (1987), rev'd on other grounds, 842 F.2d 1284 (Fed.Cir. 1988) (acknowledging that "[s]ilence or lack of clarity at the point where crucial language is finally inserted can sometimes be clarified by [legislative] history, even from bills which did not pass in prior years" but ultimately holding that the legislative history was not helpful to illuminate the term because the enacted bill was too different from the prior version).
In re Fowler, 349 B.R. at 419. Therefore, the Debtors in this case may properly deduct the ownership expense for their two vehicles, even though they will be owned debt free during the course of their Plan.
*585 B. Deductions for Boat Expense
In this case, the Debtors also seek to deduct the monthly payment for debt listed as secured by their boat ("boat payment") as an expense when calculating their disposable income on Form B22C. eCAST objects to the Debtors' deduction of this expense, arguing that the boat payment must be reasonably necessary for the maintenance and support of the debtors.
Section 707(b)(2)(A)(iii) permits debtors to deduct their average monthly payments arising on account of secured debts. The deduction is for:
(iii) The debtor's average monthly payments on account of secured debts shall be calculated as the sum of
(I) the total of all amounts scheduled as contractually due to secured creditors in each month of the 60 months following the date of the petition; and
(II) any additional payments to secured creditors necessary for the debtor, in filing a plan under chapter 13 of this title, to maintain possession of the debtor's primary residence, motor vehicle, or other property necessary for the support of the debtor and the debtor's dependents, that serves as collateral for secured debts;
divided by 60.
11 U.S.C. § 707(b)(2)(A)(iii).
As discussed above, the starting point for the court's inquiry into congressional intent is the statutory language itself. Lamie, 540 U.S. at 534, 124 S.Ct. 1023. The language of the Section 707(b)(2)(A)(iii)(I) is clear in providing for the deduction of all secured debt that will become contractually due within the sixty months after the petition date. According to the Debtors' Plan, the last boat payment is due June 5, 2009, which is within sixty months after the petition date. Therefore, the Debtors, in computing the claimed deduction, will total the remaining balance of the debt through June 5, 2009 and divide that total by sixty. See 11 U.S.C. § 707(b)(2)(A)(iii)(I). There is no evidence that the debt securing the boat is of the kind discussed in Section 707(b)(2)(A)(iii)(II), therefore, it is not relevant to the computation of the Debtors' disposable income.
eCAST also attempts to find support for its position based upon the fact that those who have mortgages and secured auto loans must also account for these secured debts under Section 707(b)(2)(A)(iii) in combination with the allowances for IRS National and Local Standards under 707(b)(2)(A)(ii). As such, eCAST seems to conclude that all secured debts under Section 707(b)(2)(A)(iii) must fit into a set of IRS guidelines as described in Section 707(b)(2)(A)(ii). Such an argument, however, is misplaced.
Mortgages and secured auto loans may be deducted from a debtor's current monthly income under Section 707(b)(2)(A)(ii) as part of the expenses accounted for under the National and Local Standards. Mortgages and secured auto loans may also be deducted from a debtor's current monthly income as payments on account of secured debts under Section 707(b)(2)(A)(iii). Debtors, however, may not account for such expenses twice or, as some courts have described this issue, "double dip." In re McGuire, 342 B.R. 608, 612 (Bankr.W.D.Mo.2006). The potential for double-dipping is made possible because, while some debtors have mortgages and auto loans, others rent their living space and lease their automobiles. Double-dipping is avoided by requiring debtors deduct from the IRS Standard expenses the payments on their monthly mortgage and car payments. In re McGuire, 342 B.R. at 612. Thus, while certain secured debts accounted for in Section 707(b)(2)(A)(iii) may also be accounted for in Section 707(b)(2)(A)(ii), there is no *586 requirement for Section 707(b)(2)(A)(iii) debt to also be of an expense described in Section 707(b)(2)(A)(ii).
As pointed out by eCAST in its objection, the payment of secured debt on the Debtors' boat in this case does not fall into any of the expense categories set forth in Section 707(b)(2)(A)(ii), therefore, there is no risk of double-dipping. As such, the Debtors' monthly payments on account of the secured debt for their boat need not be reasonably necessary for the maintenance and support of the Debtors under the means test.
Notwithstanding the fact that the Debtors are entitled to account for the boat payments when calculating their disposable income under the means test, confirmation of a plan proposing to retain the boat is subject to the good faith test under 11 U.S.C. § 1325(a)(3). In the Fourth Circuit, a court's inquiry into whether a Chapter 13 plan has been proposed in good faith is governed by a totality of circumstances inquiry. Neufeld v. Freeman, 794 F.2d 149, 152 (4th Cir.1986) (citing Deans v. O'Donnell 692 F.2d 968, 972 (4th Cir. 1982)). The inquiry focuses on factors such as the percentage of proposed repayment to creditors, the debtor's financial situation, the period of time over which creditors will be paid, the debtor's employment history and prospects, the nature and amount of unsecured claims, the debtor's past bankruptcy filings, the debtor's honesty in representing the facts of the case, the nature of the debtor's pre-petition conduct that gave rise to the debts, whether the debts would be dischargeable in a Chapter 7 proceeding, and any other unusual or exceptional problems the debtor faces. Id.
Courts have denied confirmation of Chapter 13 plans that propose to pay for nonessential or luxury, secured assets. See, e.g., In re Kasun, 186 B.R. 62, 63-64 (Bankr.E.D.Va.1995).[7] These courts hold that such plans would discriminate against the debtors' unsecured creditors, see 11 U.S.C. § 1322(b)(1), and that such discrimination indicates that the plan was filed in bad faith. See 11 U.S.C. § 1325(a)(3); Kasun, 186 B.R. at 63-64. While an abovemedian debtor who proposes to retain a nonessential or luxury asset may not be doing so at the expense of unsecured creditors post-BAPCPA, because the return to general unsecured creditors under a Chapter 13 plan is guided by the means test, such a conclusion does not make this court any less mindful of the fact that "the good faith inquiry is intended to prevent abuse of the provisions, purpose, or spirit of Chapter 13." Solomon v. Cosby (In re Solomon), 67 F.3d 1128, 1134 (4th Cir. 1995) (citing Neufeld, 794 F.2d at 152). As such, this court concludes that the Debtors' proposal to retain their boat, which is used solely for recreational purposes, is subject to the Bankruptcy Code's good faith test.[8]
Ill. Applicable Commitment Period
eCAST, along with the Chapter 13 Trustee, objects to the confirmation of the *587 proposed plan arguing that an above-median debtor has an applicable commitment period of five years and that the Debtors' proposed Plan length is less than five years and does not pay all allowed unsecured creditors in full. Section 1325(b)(1) states:
If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan
(A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or
(B) the plan provides that all of the debtor's projected disposable income to be received in the applicable commitment period beginning on the date that the first payment is due under the plan will be applied to make payments to unsecured creditors under the plan.
11 U.S.C. 1325(b)(1). The term applicable commitment period is defined in Section 1325(b)(4)(A), which provides that, if a debtor's income is below-median, then the applicable commitment period is three years and, if the, debtor's income is above-median, as in this case, then the applicable commitment period is five years. A split of authority, however, exists as to whether the "applicable commitment period" is a purely time requirement (herein "temporal") or a monetary multiplier requirement (herein "multiplier"). See, e.g., In re Enright, 2007 WL 748432, at *6, 2007 Bankr.LEXIS 812, at *6 (providing a representative list of cases addressing the "applicable commitment period").
Debtors assert that "applicable commitment period" is a multiplier and that a confirmable plan need only include an amount of projected disposable income equal to that which would be received during the "applicable commitment period." Thus, the Debtors interpret Section 1325(b)(4)(A) to mandate a specific return to unsecured creditors, which is calculated by projecting a debtor's disposable income over the "applicable commitment period," but may be paid over a period of a shorter duration than the "applicable commitment period."
While this interpretation of Section 1325(b)(4)(A) finds support in some courts, this court agrees with the reasoning of the majority of courts, which have concluded that the "applicable commitment period" is a temporal requirement. See, e.g., In re Girodes, 350 B.R. 31, 35 (Bankr.M.D.N.C. 2006). These courts find support in the plain language of the statute, having determined that "[t]he use of the term `period' implies time period rather than amount" In re Girodes, 350 B.R. at 35. This conclusion is bolstered by the numerous temporal references made throughout the Bankruptcy Code,[9] which stand in contrast to equally numerous multiplier requirements.[10]*588 See Keene Corp. v. United States, 508 U.S. 200, 208, 113 S.Ct. 2035, 124 L.Ed.2d 118 (1993) ("Where Congress includes particular language in one section of a statute but omits it in another, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (internal quotation marks & alterations omitted)); see also Gaffney v. Riverboat Servs. of Indiana, Inc., 451 F.3d 424, 445 (7th Cir.2006) (noting that the interpretation of words in a statute is dependent upon the context in which they appear).
CONCLUSION
For the above-stated reasons, the court concludes that the plain language of Section 707(b)(2)(A)(ii)(I) permits the Debtors to take the transportation ownership allowance on their vehicles even though they will be owned debt free at some point during the course of a confirmed Chapter 13 Plan. The plain language of Section 707(b)(2)(A)(iii)(I) also permits the Debtors to reduce their projected disposable income by the average monthly payments on account of the debt securing their boat. Finally, the plain language of Section 1325(b)(4)(A) requires the Debtors' to propose a sixty month plan. Therefore, the Debtors' Plan does not comply with the requirements of Section 1325(b) and may not be confirmed. Accordingly, it is
ORDERED:
That the confirmation of the Debtors' Chapter 13 Plan is denied.
Copies of this order are directed to be sent to counsel for the Debtor, Berrell F. Shrader, Esq., Colony Park Suite 303, 1999 South Main Street, Blacksburg, Virginia 24060; counsel for eCAST Settlement Corporation, Matthew Huebschman, Esq., Shenandoah Legal Group, P.C., 310 South Jefferson Street, P.O. Box 75, Roanoke, Virginia 24002; and to Rebecca Connelly, Esq., P.O. Box 1001, Roanoke, Virginia 24005.
NOTES
[1] Because this case was commenced after October 16, 2005, it is subject to the amendments to the Bankruptcy Code made by the Bankruptcy Abuse and Consumer Protection Act of 2005 ("BAPCPA").
[2] Annualized gross income per Schedule I is $103,938.60.
[3] Annualized gross income per Form B22C is $106,891.08.
[4] The vehicle payments will end in October 2009 and October 2011, if payments continue to be made in accordance with the terms of the loan agreement. See Docket Entry # 9.
[5] The Chapter 13 Trustee also filed an objection to the confirmation of the Debtors' Plan. See Docket #'s 15 and 23. The Trustee's objection raises the same issue of plan duration raised by eCAST.
[6] Census Bureau Median Family Income By Family Size, August 3, 2007, available at http://www.usdoj.gov/ust/eo/bapcpai 20070201/bci_data/median_income_table. htm.
[7] In its objection to confirmation, eCAST cites In re Webster, 165 B.R. 173, 176 (Bankr. E.D.Va.1994), which addresses the Section 1322(b)(1) issue, but does not address good' faith under Section 1325(a)(3). eCAST also cites In re Cox, 249 B.R. 29 (Bankr.N.D.Fla. 2000), which addresses this issue of substantial abuse under Section 707(b) when the Debtor reaffirmed the debt on a recreational boat.
[8] At present, the impact on inclusion of the secured debt in the plan versus any potential deficiency should the asset be sold or surrendered is unknown. To achieve confirmation with the asset included in the plan, the Debtors will have to demonstrate that unsecured creditors are better off than they would be if the asset is excluded and the monthly payments on the secured debt are added into a monthly plan payment.
[9] As noted in In re Girodes, 350 B.12. 31, 35 (Bankr.M.D.N.C.2006):
The use of the term "period" implies time period rather than amount. Temporal references are made throughout Chapter 13 of the Bankruptcy Code. For example, § 1322(a)(4) states:
plan may provide for less than full payment of all amounts owed for a claim entitled to priority under section 507(a)(1)(B) only if the plan provides that all of the debtor's projected disposable income for a 5-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan.
Section 1322(d)(1) provides that if a debtor is above the median income, "the plan may not provide for payments over a period that is longer than 5 years." If a debtor is below the median income, "the plan may not provide for payments over a period that is longer than 3 years, unless the court, for cause, approves a longer period, but the court may not approve a period that is longer than 5 years." 11 U.S.C. § 1322(d)(2).
Id. at 35.
[10] In In re Slusher, 359 B.R. 290, 301-02 (Bankr.D.Nev.2007), the court concluded:
Had Congress wanted to signify a multiplicand, rather than a temporal period, it could easily have done so; it did just that in numerous other areas of the Bankruptcy Code, including other areas of Section 1325. See, e.g., 11 U.S.C. 507(a)(5)(B)(i) ("the number of employees covered by each such plan multiplied by $ 10,000"); 704(b)(2); 707(b)(2)(A)(i) ("if the debtor's current monthly income, reduced by the amounts determined under clauses (ii), (iii), or (iv), and multiplied by 60 is not less than"); 707(b)(2)(B)(iv); 707(b)(6); 707(b)(7)(A); 1322(d)(1); 1322(d)(2); 1325(b)(3) ("if the debtor has current monthly income, when multiplied by 12"); 1325(b)(4)(A)(2); 1326(b)(3)(B)(ii).
Id. at 301-02. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1550651/ | 374 B.R. 24 (2007)
In re Alane TARATUSKA, Debtor.
Alane Taratuska, Plaintiff,
v.
The Education Resources Institute, Inc., et al., Defendants.
Bankruptcy No. 01-10361-RS, Adversary No. 05-1653.
United States Bankruptcy Court, D. Massachusetts.
August 23, 2007.
*25 *26 Walter Oney, Attorney at Law, Fitchburg, MA, for Plaintiff.
Daniel Glosband, Goodwin Procter LLP, Boston, MA, John F. White, Topkins & Bevans, Braintree, MA, for Defendants.
REVISED MEMORANDUM AND ORDER[1]
ROBERT SOMMA, Bankruptcy Judge.
Introduction
Alane Taratuska filed a complaint in her underlying Chapter 7 case, seeking a discharge of several student loans on an undue hardship basis, thereby commencing this adversary proceeding. One of these student loans was made by Society National Bank ("Bank") ("Loan") and guaranteed by The Education Resources Institute, Inc. ("TERI") ("Guaranty"). The Loan was obtained through a student loan marketing service operated by a nonprofit organization known as The Access Group. Upon Taratuska's default on the Loan, TERI paid on the Guaranty and obtained an assignment of the Loan from the Bank.[2] Thereafter, TERI sued Taratuska and obtained a state court default judgment on the Loan ("Judgment").
Taratuska has now moved for summary judgment that the Loan is not excepted from discharge. TERI opposes that motion and has filed a cross motion seeking a contrary determination.
I
At Issue
Section 523(a)(8) excepts certain student loans from discharge absent undue hardship. In her summary judgment motion, Taratuska contends that the Loan is not within the class or type of student loan excepted from discharge under that section.[3]
At issue is whether the Loan is one made under a program funded in whole or in part by a nonprofit institution.[4] If so, then the Loan is excepted from discharge unless Taratuska establishes at trial that *27 repayment of the Loan imposes an undue hardship on her and her dependents. If not, then the. Loan is discharged and no trial is required.
II
Procedural Status
On July 12, 2007, I held a hearing on the motions. Based upon the written submissions by the parties (including affidavits, answers to interrogatories, and related exhibits), the arguments at the hearing, and applicable law, the Court finds that the Loan is not excepted from discharge under Section 523(a)(8).
III
Standard
A party is entitled to summary judgment only upon a showing that there is no genuine issue of material fact and that, on the uncontroverted facts, the movant is entitled to judgment as a matter of law. F.R.Civ.P. 56(c). See Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir.1989).
Where, as here, the moving party would not bear the burden of proof at trial, the movant's initial burden is to demonstrate or point out a lack of evidence to support at least one essential element of the opposing party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322-323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the opposing party to adduce such evidence on each of the disputed elements as at trial would be sufficient to withstand a motion for directed verdict. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment will enter for the movant if the party bearing the burden of proof fails to establish the existence of an element essential to its case. Celotex v. Catrett, 477 U.S. at 322-323, 106 S.Ct. 2548; In re Varrasso, 37 F.3d 760, 763 n. 21 (1st Cir. 1994).
Here, the burden at trial falls on TERI to demonstrate that the Loan is one ". . . made under any program funded in whole or in part . . . by a nonprofit institution . . ." 11 U.S.C. 523(a)(8). Hence, for summary judgment, Taratuska must establish that there is a lack of evidence to support TERI's contention that a nonprofit institution funded (in whole or in part) the program under which the Loan was made; if she does so, then TERI must adduce such evidence on its contention as at trial would be sufficient to withstand a directed verdict.[5] Taratuska has done so; TERI has not.
IV
Factual Background
The uncontroverted facts material to the outcome of this matter are as follows.
In July 1996, Taratuska borrowed $15,277.56 from the Bank to fund her graduate education at Boston University.[6] In February 2001, she commenced the Case. In April 2001, the Court issued a discharge order and in May 2001 closed the Case. Taratuska had filed debt schedules reflecting $93,000 in student loans (including the Loan) but did not seek a determination as to their dischargeability during the Case. In November 2002, TERI obtained the Judgment.[7] Unable to satisfy *28 the Judgment or otherwise to repay the student loans, in December 2005, Taratuska moved to reopen the Case. The Court granted that request and Taratuska thereupon commenced this adversary proceeding.
At the time of the Loan, the Bank was a commercial bank and TERI was a nonprofit institution. At that time, the Bank made student loans, some federally guaranteed, others not. The Bank referred to these student loans as Financed Student Loans and classified them in at least two groups: Financed Federal Loans ( federally guaranteed) and Financed Private Loans (not federally guaranteed). Also at that time, The Access Group ("TAG") marketed and coordinated student loans among students, educational institutions, lenders, loan guarantors, and loan servicers. TAG did so under the labels Law Access Loans, Business Access Loans and Graduate Access Loans, classifying student loans by educational purpose or course of study.[8] TAG appears to have provided the Loan application form and the form promissory note reflecting the Loan ("Application") ("Note"). The Application states that the Loan is ". . . a private education loan that must be repaid." The Note identifies Taratuska as maker, the Bank as payee and TERI as guarantor. There are several references in the Note to TAG (and its Graduate Access Loan label) but the Note confers no rights and imposes no obligations upon TAG. TAG grouped its student loans, commercial and nonprofit alike, under a single classification (e.g., all graduate school loans under the Graduate Access Loan label). The Bank grouped its student loans, as noted, under separate classifications reflecting the loan type (e.g., federally subsidized in one class, not federally subsidized in another).[9]
TERI principally served as a guarantor of student loans disbursed by lending institutions, deriving its revenues from loan guarantee fees. TERI did not advance funds to anyone on account of the Loan when it was made in 1996. Rather, when Taratuska defaulted on the Loan, in late 2000, TERI paid the balance due and did so in accordance with the Guaranty and in its customary role as guarantor. TERI was not obligated to purchase the Loan from the Bank when the Loan was made, and it did not do so. Its obligation was to pay the Loan upon Taratuska's default, and it did so. TERI's rights upon such default included the right to obtain an assignment of the Loan and related promissory note, and it did so.
V
Discussion
For summary judgment, the matter reduces to this: whether TERI has adduced evidence that a nonprofit institution funded the student loan program under which the Loan was made. This, in turn, requires consideration of the meaning of "program" and "funded" as employed in Section 523(a)(8) and as applied in this matter. Neither term is defined in the Code.
*29 A. Parsing the Statute
Section 523(a)(8) requires four elements for the student loan discharge exception at issue: (a) an educational loan must be made (b) under a program (c) funded (d) by a nonprofit institution. The parties acknowledge the establishment of one such element: the Loan was made. There remains for determination whether TERI has adduced evidence (sufficient to withstand a directed verdict at trial) that the Loan was made under a program funded by a nonprofit institution.[10] Ultimately, given the uncontroverted facts, this matter concerns differing interpretations of the statute and not disputes regarding such facts.
B. Funding
TERI does not contend that it or any other nonprofit institution advanced funds to Taratuska or to anyone on her account when the Loan was made. TERI does contend that the giving of the Guaranty to the Bank constitutes program funding on account of the Loan. The Court disagrees and holds that the giving of a guaranty doe not constitute funding within the meaning of Section 523(a)(8). A guaranty is generally understood to mean a promise to pay the debt of another who is liable in the first instance yet fails to pay the debt when due. Funding is generally understood to mean the advance of money to an individual, entity or venture for a specific purpose. See Black's Law Dictionary (8th ed.2004). These are very different undertakings. A commitment to perform an act upon the occurrence of a future event (i.e., to pay a debt as a secondary obligor when the primary obligor fails to do so) is not equivalent to a commitment presently to advance the funds that give rise to that debt. Notably, the statute employs both terms, plainly indicating that they have different meanings; otherwise, one or the other would be unnecessary.[11] Hence, the giving of the Guaranty does not constitute the program funding contemplated by Section 523(a)(8) on account of the Loan.[12]
C. The Program
TERI also contends that, even if the Guaranty does not constitute the program funding specified in the statute, the Loan is nonetheless excepted from discharge because it was made under a program funded in part by a nonprofit institution. In support of that contention, TERI argues as follows: (a) TAG is a student loan program; (b) student loans obtained through TAG are funded by commercial lenders and nonprofit institutions; (c) Taratuska obtained the Loan through TAG; (d) thus, the Loan was made under a student loan program (namely, TAG) funded in part by *30 a nonprofit institution (indeed, many nonprofit institutions); and (c) therefore, the Loan is excepted from discharge.
Taratuska disputes this contention, arguing as follows: (a) TAG is not a student loan program; (b) even if TAG is a student loan program, it is not the student loan program under which the Loan was made: (c) the Loan was made by the Bank under its Financed Private Loan program which is comprised entirely of commercial (i.e., not federally subsidized) loans; (d) thus, the Loan was made under a student loan program (namely, the Financed Private Loan program of the Bank) funded entirely by a commercial lender (namely, the Bank); and (c) therefore, the Loan is not excepted from discharge.
TERI's argument in favor of TAG as the requisite statutory program fails for two reasons. First, TERI has not established that TAG is a student loan program. TERI has adduced no evidence that TAG makes student loans, advances funds, guarantees debts or otherwise performs the activities that are reasonably associated with loan program status. Moreover, by its own admission, TAG's program appellations (like Graduate Access Loans) are service marks and marketing labels, tools employed more customarily by a student loan broker than a student loan lender. TAG can claim program status only in the most superficial and generic sense, if at all, by reference to, its self-styled marketing categories, service marks and labels. The statute requires more substantive attributes for program status where the extreme consequence of discharge exception is at stake.
By contrast, the Bank operates and maintains an actual student loan program: originating and making loans, fixing terms, advancing funds, contracting with guarantors, hiring loan servicers, grouping discrete student loan types within common classifications, accounting for and reporting about the performance and status of each such student loan program, even packaging its many loans into an investment portfolio for public consideration and investment.
By any reasonably formulated understanding of the term "program", TERI has adduced evidence not that it operates a student loan program but, rather, that TAG provides services to those, like the Bank, who do.
Second, even if TAG is a student loan program, TERI's claim for TAG's status as the funded program for the Loan fails because TAG indiscriminately groups commercial and nonprofit student loans in a single, unitary classification, disregarding the disparate terms and attributes of such different loans. TERI's reading of the statute that the indiscriminate inclusion of commercial and nonprofit loans in a single classification constitutes a student loan program funded in part by a nonprofit institution ensures inequitable outcomes: it converts dischargeable commercial student loans into non-dischargeable commercial student loans solely as a consequence of TAG's classification system, a system that ignores loan attributes altogether.[13] Under that reading, no TAG-related commercial loan would ever be dischargeable as long as one TAG-related nonprofit loan remained unpaid. This seems both illogical and unfair.
A better reading of the program requirement of Section 523(a)(8), and the one I find here applicable, recognizes separate program classifications for nonprofit student loans and commercial student loans, whether made under TAG or the Bank's Financed Private Loan program, and determines *31 funded program status based on such appropriately discrete classifications. By that approach, the economic expectations of all concerned student borrowers, nonprofit and commercial lenders, loan guarantors are fully met: nonprofit loan programs retain the congressionally mandated protection of discharge exception while commercial loan programs retain the benefit of their market-driven bargain (reflected in the terms of such loans). This approach serves the goals of Congress student borrower accountability and student loan program integrity without extending the discharge exception protection to commercial lenders for loans not otherwise entitled to such protection.[14]
VI
Conclusion
TERI has failed to establish an essential clement of its case, namely, that the Loan was made under a program funded (in whole or in part) by a nonprofit institution.
Order
For the reasons stated above, the motion of Taratuska for summary judgment is hereby granted and the cross-motion of TERI for summary judgment is hereby denied. A separate judgment will be issued upon the completion of this adversary proceeding.
NOTES
[1] This Revised Memorandum and Order differs from the original, issued August 16, 2007, only in that it incorporates the corrections identified in the Errata Sheet of August 22, 2007.
[2] At the time the Loan was made, the Bank was one of numerous bank subsidiaries of an Ohio-based bank holding company. Thereafter, the Bank was merged into one of these subsidiaries. References to the Bank herein are to the pre- and post-merger entity.
[3] Taratuska's bankruptcy case pre-dates the 2005 amendments to the Bankruptcy Code. Hence, this matter is determined under the pre-amendment version of Section 523(a)(8). That version excepts from discharge education-related debts including a debt for an educational loan ". . . made under any program funded in whole or in part by a governmental unit or nonprofit institution . . . unless excepting such debt from discharge . . . will impose an undue hardship on the debtor and the debtor's dependents . . ." 11 U.S.C. 523(a)(8).
[4] The parties have stipulated that the Loan would be excepted from discharge under Section 523(a)(8) only if it were "made under any program funded in whole or in part by a governmental unit or nonprofit institution" and not under any of the other discharge exceptions in that section. TERI has further acknowledged that neither the Loan nor the program at issue was funded by a governmental unit.
[5] See, e.g. In re Smith, 328 B.R. 605, 611 (1st Cir. BAP 2005).
[6] Funds were also disbursed for so-called guarantee fees to TERI on account of the Loan. For the purposes of this decision, I include these fees in the Loan.
[7] The Judgment was in the amount of $23,651.09. TERI now claims a balance due in the amount of $35,254.12 at June 27, 2007 (plus attorney's fees and costs).
[8] According to TERI's submissions, Law Access, Inc. was a nonprofit organization doing business as The Access Group and its student loan labels or classifications were TAG service marks not separate legal entities or business units.
[9] The Loan was later included in a student loan portfolio marketed to the investing public by a Bank-related investment vehicle. The offering materials reflected the Bank's student loan classifications.
[10] Courts have determined that it is the program and not the loan that must be funded under Section 523(a)(8). See., e.g., In re Hammarstrom, 95 B.R. 160, 165 (Bankr. N.D.Cal.1989). I agree with that reading of the statute. However, there is no commonly accepted understanding of what program funding means other than the advance of funds for a loan made under a particular program's auspices. Apart from TERI's contention (which I reject) that the Guaranty constitutes program funding, the parties appear to agree, and I so conclude, that funding a program means advancing funds for a loan or loans under that program.
[11] The student loan discharge exception extends to ". . . an educational loan made, issued or guaranteed by a governmental unit, or made under any program funded in whole or in part by a governmental unit or nonprofit institution . . ." 11 U.S.C. sec. 523(a)(8) (emphasis supplied).
[12] Other courts take a different view. See In re O'Brien, 419 F.3d 104, 105 (2d Cir.2005); Hammarstrom, 95 B.R. at 165; and In re McClain, 272 B.R. 42 (Bankr.D.N.H.2002).
[13] I do not consider course of study a loan attribute for Section 523(a)(8) purposes.
[14] Here, too, other courts take a different view. See O'Brien, 419 F.3d at 106-107; In re Pilcher, 149 B.R. 595 (9th Cir. BAP 1993); In re Bolen, 287 B.R. 127 (D.Vt.2002). These cases are well-reasoned but do not seem to take into account the outcome I find objectionable the conversion of a dischargeable commercial student loan into a non-dischargeable commercial student loan for reasons having little to do with the loan itself. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1550656/ | 374 B.R. 745 (2007)
In re Samuel D. HILL and Susie M. Hill, Debtors.
Helen M. Garcia, Debtor.
Nos. 02-0014-A13, 02-01314-M13.
United States Bankruptcy Court, S.D. California.
August 7, 2007.
*746 Nathan Shilberg, El Cajon, CA, for Debtors.
Rebecca Pennington, San Diego, CA, for Chapter 13 Trustee.
ORDERS ON TRUSTEE'S MOTIONS TO DISMISS
PETER W. BOWIE, Chief Judge.
The above-captioned cases were heard on the same date and involve a common issue of law. Specifically, the Chapter 13 Trustee has moved to dismiss both cases because they have exceeded 60 months in length. Debtors in both cases oppose, and ask for more time to complete performance under their respective plans.
This Court has subject matter jurisdiction over both cases pursuant to 28 U.S.C. § 1334 and General Order No. 312-D of the United States District Court for the Southern District of California. These are core proceedings under 28 U.S.C. § 157(b)(2)(A), (O).
Hill
The Hills filed their Chapter 13 petition on January 16, 2002, through their current attorney of record. On the same date, they filed their proposed plan, providing for monthly payments of $675 and a 100% dividend to unsecured creditors. Their Schedules tell an, important part of the story because they owned their home free of all liens except a small property tax obligation of $541. They valued their *747 home at $165,000. They also declared $27,772.62 in general unsecured debt, plus $2,780 in the unsecured portion of their vehicle debt. Their income was from a Civil Service pension and a nominal sum from Social Security, with a combined total of $2,034 per month.
At the meeting of creditors, the debtors signed a modification of their plan to add 10% interest for the unsecured creditors, undoubtedly because of the amount of nonexempt equity in their home. Subsequently, their plan, as modified, was confirmed on April 24, 2002.
The difficulty in this case has arisen because at the time of confirmation the claims bar date had not passed. The total claims ultimately received exceeded the claims listed on the Schedules. Had those amounts been known at time of confirmation, the plan would not have been feasible, and therefore not confirmable. But, it was confirmed.
On July 25, 2002 the Chapter 13 Trustee sent debtors and their attorney a "Notice of Claims Filed and Intention to Pay Claims". That form showed that several claims listed in the Schedules had not been filed, and the claims that had been filed totaled $46,444.91, not including attorneys' fees or the trustee's administrative costs, and was roughly $16,000 more than scheduled. Debtors did nothing thereafter to seek to amend their plan to bring it to completion within 60 months. The only way they could have done so, however, would have been to increase the monthly plan payment They could not reduce the percentage paid to unsecureds because of the non-exempt equity in their home. They could not increase their plan payment, either, because their only income was fixed, they were already in their 70'S and had no realistic way of supplementing their income.
On May 5, 2005 the Chapter 13 Trustee sent the debtors and their attorney notice that their case was projected to exceed the five year time limit by approximately another five years, that they should review their case with their attorney, and that if their case was not "paid in full by the five year date", the trustee would seek dismissal. On August 24, 2006 the trustee sent an almost identical notice, although the projected date of completion had been shortened by almost a year, to August 24, 2011, still over four years in excess of the five year period.
Finally, on May 22, 2007 the Chapter 13 Trustee moved to dismiss, asserting:
[C]ause exists in that it has been over 5 years since case was filed and debtor's plan provides that debtors will pay sufficient funds to the trustee on or before five years from commencement of this case to fully complete the plan.
Mr. Hill opposes the trustee's motion to dismiss. He notes that his wife died in 2006, he is now 77, and still lives on his Civil Service pension without other income. The house remains unencumbered and he now values it at $450,000. He has explored a home equity line of credit and a reverse mortgage, but does not feel those are viable options. Of course, one difficulty with borrowing against the equity in the home is the necessity of repaying the loan. Mr. Hill has no additional income from which to do so.
It appears, that Mr. Hill has consistently made payments to the trustee and is substantially current after more than 60 months. He asks that he be allowed to continue to make payments at the current rate until the plan is paid off. He asserts without any contradiction that the problem derives from having innocently underestimated certain creditor claims. The trustee says it will take approximately 53 more months to complete the plan, and Mr. Hill does not disagree.
*748 Garcia
Mrs. Garcia's petition was filed on February 6, 2002, and her plan filed the same date provided for payments of $285 per month and 100% to unsecured creditors. She owned her home free and clear of any liens and valued it at $280,000. Because of the non-exempt equity in her home she, too, modified her plan to add 10% interest to unsecured creditors, after which it was confirmed. She listed $12,434 in unsecured debt on Schedule F. Her income was derived from support payments from the County and from Social Security, totaling $1,308.10 per month.
On September 3, 2002 the Chapter 13 Trustee sent notice to Mrs. Garcia and her attorney that the claims which had been filed totaled $29,959, and that two had not filed although they were scheduled. Excluding interest, attorneys fees and the trustee's fees, it would take more than 105 months to pay off all the filed claims.
On May 5, 2005 the Chapter 13 Trustee sent both Mrs. Garcia and her attorney" notice of the length problem, with the estimated completion date of October 2, 2010 for the case filed February 6, 2002. As with the Hills the trustee advised that a motion to dismiss would be triggered by failure to pay the plan in full by the five year date. In June, 2006 new counsel substituted in for Mrs. Garcia. On August 24, 2006 the trustee sent another notice to Mrs. Garcia, with a copy to her new counsel. The estimated completion date had changed to April 24, 2010.
Mrs. Garcia, like Mr. Hill, asks to continue at the current rate of payment until she completes the plan. The trustee calculates that would require an additional 33 months, not including attorneys' fees. It appears Mrs. Garcia has no way to increase her income so that she could increase her payments. Her only real asset is the house, but she has no income to pay any debt service if she borrows against the equity in it.
Discussion
At the time both plans were confirmed 11 U.S.C. § 1322(c) required that a plan provide for all payments to be made within 36 months or, for cause, within 60 months. A number of courts have examined whether that requirement is a basis for dismissal, in addition to a requirement for confirmation. In this Court's view, the better reasoned cases hold that § 1322(c) is an element for confirmation, and that a separate statute, § 1307 governs dismissals. Nowhere in § 1307 is it specified that failure to complete a confirmed plan in 60 months is, in itself, a ground for dismissal. See In re Henry, 343 B.R. 190 (Bankr. N.D.Ill.2006); In re Brown, 296 B.R. 20 (Bankr.N.D.Ca.2003); In re Harter, 279 B.R. 284 (Bankr.S.D.Ca.2002); In re Black, 78 B.R. 840 (Bankr.S.D.Ohio 1987). The trustee has not argued otherwise.
Does that mean a debtor can continue to pay under a plan almost indefinitely? Some courts have considered that a debtor may continue to perform for a "reasonable" period of time after the 60 months. See In re Brown, supra (12 months); In re Harter, supra (2 months); In re Black, supra ("few months"). The "reasonable" time period may well be drawn from traditional contract law, which generally provides: "If no time is specified for the performance of an act required to be performed, a reasonable time is allowed." Cal. Civil Code § 1657.
The court in In re Black, supra, explained the thinking of Congress in adopting the 3 year-5 year provision of § 1322(c). Borrowing from the House Judiciary Committee Report, it wrote:
[I]n certain areas of the country, inadequate supervision of debtors attempting to perform under wage earner plans have [sic] made them a way of life for *749 certain debtors. Extensions on plans, new cases, and newly incurred debts put some debtors under court supervised repayment plans for seven to ten years. This has become the closest thing there is to involuntary servitude. . . .
78 B.R. at 841.
The Chapter 13 Trustee makes two arguments: 1) the amount of time necessary to complete the Hill and Garcia plans, calculated to take at least 53 and 33 more months, respectively, is not reasonable; and 2) each debtor agreed "to pay sufficient funds to the Trustee on or before five years from commencement of this case to fully complete this Plan." That statement appears in the first paragraph of each plan. The trustee argues that on the facts of these cases, because of the time it will take to complete each, there is a "material default by the debtor with respect to a term of a confirmed plan", which is an express ground for dismissal under 11 U.S.C. § 1307(c)(6).
It should be noted that the situation Mr. Hill and Mrs. Garcia find themselves in is not a product of "inadequate supervision", nor is it the product of any neglect or failure to make the required monthly payments to the trustee. If confirmation were held off pending the running of the claims bar date, neither plan would have been confirmable without drawing down, on the equity in their homes which, because of their limited and fixed incomes probably would have required sale of the properties. But holding off confirmation significantly delays distributions to any creditors, and most courts do not wait past the claims bar date. See In re Brown, supra.
Section 1307(c) of Title 11, United States Code, provides in relevant part:
(c) [O]n request of a party in interest or the United States trustee after notice' and a hearing, the court may convert a case under this chapter to a case under Chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including
. . .
(6) material default by the debtor with respect to a term of a confirmed plan. . . .
As already noted, both debtors expressly agreed in the standard form plans they proposed "to pay sufficient funds to the Trustee on or before five years from commencement of this case to fully complete this Plan." The court finds and concludes that that is a term of each debtor's confirmed plan. When a debtor needs 33 months, or 53 months to add on to performance over the preceding 60-plus months, the Court finds and concludes each is a material breach of a term of each debtor's confirmed plan.
The fact that the Court has found a material breach of a plan term does not compel conversion or, dismissal under § 1307(c), however. Congress certainly could have written "shall convert or dismiss", but instead Congress wrote "may", which grants this Court discretion to decide whether to dismiss even in the face of a material breach. As already noted, Congress fixed the 3 year-5 year provision of § 1322 as a protection for debtors, to provide them the proverbial fresh start within a reasonable period of time and to not subject them to "involuntary servitude" indefinitely. Here, it is the debtors asking to continue under their plans.
The Court has struggled the most with the fact that each debtor started their case with sufficient non-exempt equity to pay all their creditors, which is why their confirmed plans call for a 100% dividend plus 10% interest. In the intervening years, that non-exempt, equity has grown significantly. If someone were to propose a viable way to use some of that equity to *750 pay off these plans without forcing the sale of the homes either now, or later under a reverse mortgage the Court would be inclined to require the debtors to do so or suffer dismissal of their cases. But no one has proposed a way.
The facts are that each of these debtors has been consistently performing over the past 60-plus months on their confirmed plans to pay unsecured creditors 100% plus 10% interest. No secured claims are being dragged out for vehicles because they were excluded from the plans and paid under their contracts. No real property arrearages are being dragged out either the only item was $541 Mr. Hill owed the County. Except for the Chapter 13 Trustee's Fees, all the payments go to the unsecured creditors (or for fees for debtors' attorneys). No unsecured creditor has been heard to complain about receiving 100% plus 10% interest over the past five years.
Weighing all the circumstances, including the costs to debtors of dismissing and refiling (which may include accrued contract rates of interest in excess of 10%), recognizing that the automatic stay is not preventing any secured creditor from resorting to its collateral, the Court finds and concludes that it is in the best interests of both the creditors and each of the debtors to allow them to continue to perform under their confirmed plans.
The Court, therefore, exercises its discretion under the circumstances of these two cases to deny the Chapter 13 Trustee's motions to dismiss in each case, for the reasons set out above.
IT IS SO ORDERED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599427/ | 467 N.W.2d 662 (1991)
237 Neb. 729
STATE of Nebraska, Appellee,
v.
Thomas S. BALLARD, Appellant.
No. 89-438.
Supreme Court of Nebraska.
April 5, 1991.
*664 Kirk E. Naylor, Jr., for appellant.
Robert M. Spire, Atty. Gen., and Sharon M. Lindgren, for appellee.
HASTINGS, C.J., WHITE, CAPORALE, SHANAHAN, GRANT and FAHRNBRUCH, JJ., and COLWELL, District Judge, Retired.
HASTINGS, Chief Justice.
The defendant, Thomas S. Ballard, was found guilty following a trial by jury on two counts of first degree sexual assault, pursuant to Neb.Rev.Stat. § 28-319(1)(a) (Reissue 1989). He appeals, assigning as error (1) the overruling of objections to cross-examination of defendant, (2) the failure of the trial court to grant a mistrial concerning the cross-examination of defendant, and (3) the overruling of defendant's challenge for cause of an impaneled juror. We affirm.
The evidence was sufficient to support verdicts of guilty on both counts of sexual assault committed on November 17, 1988. No complaint as to the sufficiency of the evidence has been raised.
On direct examination, the defendant testified that his name was Thomas Sidney Ballard, but that in 1979 he changed his name to Shane J. Ballard. He also testified that he had previously used the name Jerry Taulbee in an effort to get employment by using connections with family members surnamed Taulbee. On cross-examination, the defendant was asked why he used an alias, and he explained that everyone called him Jerry or Shane and that Shane was not an alias. When the defendant explained that he used the surname of Taulbee to help get a job, the prosecution asked if that was the real reason the defendant used that name. The defendant replied affirmatively, and the prosecution asked if it was not true that the defendant was a fugitive from justice at the time he used the name of Taulbee. Defense counsel's objection that it was "an improper question" was overruled. The prosecution then asked, without objection, if the defendant was not a fugitive from justice on November 17, 1988. The defendant admitted that there was a warrant out for his arrest, but denied that was the real reason he was using the name Jerry Taulbee.
When a defendant in a criminal case testifies in his own behalf, he is subject to the same rules of cross-examination as any other witness and may be required to testify on his cross-examination as to any matter brought out or suggested by him on his direct examination. State v. Pitts, 212 Neb. 295, 322 N.W.2d 443 (1982). When the object of the cross-examination is to collaterally ascertain the accuracy or credibility of the witness, some latitude should be permitted, and the scope of such latitude is ordinarily subject to the discretion of the trial judge, and, unless abused, its exercise is not reversible error. Id. Cross-examination is proper as to anything tending to affect the accuracy, veracity, or credibility of the witness. State v. Sutton, 231 Neb. 30, 434 N.W.2d 689 (1989).
Defendant cites Neb.Rev.Stat. § 27-609 (Reissue 1989) as a means of determining the limits of cross-examination for impeachment. Section 27-609 provides that evidence that a witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record during cross-examination, but only if the crime (1) was punishable by death or imprisonment in excess of 1 year under the law under which he or she was convicted or *665 (2) involved dishonesty or false statement regardless of the punishment. This section is not relevant in this case, however, as the cross-examination concerned an outstanding arrest warrant, rather than a conviction.
The case at bar is analogous to State v. Sutton, supra, where the defendant clearly testified on his direct examination on the subject of his personal use of cocaine. This court found that the trial court did not abuse its discretion in allowing the prosecutor to cross-examine the defendant regarding prior sales and use of cocaine, as the subjects of whether the defendant used cocaine and sold cocaine were within the scope of his direct examination and were proper subjects for impeachment or rebuttal.
There is nothing in the record to suggest that the defendant requested a mistrial. When there occurs in the course of a trial a highly prejudicial event which is likely to materially affect the outcome of the trial, the party aggrieved must raise his objection then and move for mistrial. His failure to do so when he reasonably should know of the prejudicial occurrence constitutes a waiver of the objection. State v. Archbold, 217 Neb. 345, 350 N.W.2d 500 (1984). In the absence of plain error, where an issue is raised for the first time in the Supreme Court, it will be disregarded inasmuch as the district court cannot commit error in failing to resolve an issue never presented and submitted for disposition. Wagner v. City of Omaha, 236 Neb. 843, 464 N.W.2d 175 (1991). There is no merit to defendant's second assignment of error. Finally, we consider defendant's complaint that the court failed to strike juror Smith. The supplemental bill of exceptions shows that the jury voir dire was conducted on February 27, 1989, and the additional voir dire of juror Smith was conducted on February 22, 1989. Quite obviously these dates are in error, and the additional voir dire must have followed the original voir dire. In any event, at the original voir dire examination, juror Smith, when asked if he knew anyone "in law enforcement work, or [who] work[ed] with a law enforcement agency," admitted to knowing one of the members of the Alliance Police Department. However, Smith claimed that this relationship would not affect his ability to judge the case, and he was passed for cause.
At some later time, before the trial actually commenced on February 28, 1989, information apparently came to the court's attention that juror Smith's wife was employed by the county attorney's office. Further voir dire was permitted. Juror Smith insisted that he had not discussed the case with his wife, that the fact that she worked for the county attorney would not affect Smith's ability to judge the evidence in this case, and that his wife had not told him anything about the evidence in the case. When asked why he had not disclosed this relationship when earlier asked if he had any friends or relatives in law enforcement, Smith replied that when defendant's counsel asked about law enforcement personnel he thought the attorney meant police officers and that he did not feel the county attorney's office was a law enforcement office. Defense counsel's motion to strike the juror for cause was denied.
As a general rule, the retention or rejection of a venireperson as a juror is a matter of discretion with the trial court. State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990).
A party who fails to challenge prospective jurors for disqualification and does not use his or her peremptory challenges to remove such jurors from the panel waives any objections to their selection. State v. Green, 236 Neb. 33, 458 N.W.2d 472 (1990).
In Sayer Acres, Inc. v. Middle Republican Nat. Resources Dist., 205 Neb. 360, 287 N.W.2d 692 (1980), the appellants contended that the verdict must be set aside because it was discovered after the verdict had been rendered that one of the jurors had a brother who was a member of the board of directors of the condemner district. The appellants had not contended *666 that they did not have full and ample opportunity to examine all the jurors at the time of voir dire. The court noted that the right to challenge a juror for cause may be waived or lost by a lack of diligence, and the failure to make appropriate inquiry as to the qualifications of prospective jurors on voir dire waives later objections based on the facts that might have been disclosed by such inquiry. The court found that by passing the jurors for cause, the appellants waived any objection to their selection as jurors.
It is difficult to believe that defendant's trial counsel, who is not the same attorney representing defendant in this appeal and who practices law in Alliance and Box Butte County, did not know of the connection between juror Smith and the county attorney's secretary. However, be that as it may, counsel had the opportunity to elicit this information during the initial voir dire. The record does not disclose that the juror was untruthful. He simply did not understand the question. If counsel desires specific information on voir dire, he or she must ask specific questions. See, also, McCamish v. Douglas Cty. Hosp., 237 Neb. 484, 466 N.W.2d 521 (1991).
The judgment of the district court is affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597850/ | (2008)
Mark I. SOKOLOW, et al., Plaintiffs,
v.
THE PALESTINE LIBERATION ORGANIZATION, the Palestinian Authority (a/k/a "The Palestinian Interim Self-Government Authority" and/or "The Palestinian Council" and/or "The Palestinian National Authority"), and John Does 1-99, Defendants.
No. 04 CV 397(DBD).
United States District Court, S.D. New York.
September 30, 2008.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, District Judge.
In an action brought under the Antiterrorism Act of 1991, 18 U.S.C. § 2331 et. seq. ("ATA"), United States citizens and guardians, family members and the estates of United States citizens, are suing the Palestine Liberation Organization ("PLO") and the Palestinian Authority[1] ("PA"), for injuries and death allegedly suffered as a result of a series of terrorist attacks occurring over a three year period in Israel. Plaintiffs assert causes of action for international terrorism, pursuant to 18 U.S.C. § 2333, and various state law claims.
The PLO and PA seek dismissal of the amended complaint for lack of subject matter jurisdiction and personal jurisdiction, pursuant to Fed.R.Civ.P. 12(b)(1) and (2), respectively. They also move, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the pendent state law causes of action for failure to state a claim for relief. Plaintiffs cross-move seeking the summary denial of defendants' motion to dismiss for want of personal jurisdiction. In the alternative, plaintiffs seek an order granting them jurisdictional discovery.[2]
The Court finds that it has subject matter jurisdiction in this action, and hence dismissal on this basis is unwarranted. Defendants' motion to dismiss, for lack of personal jurisdiction and failure to state a claim, is denied without prejudice to renew. Plaintiffs' cross-motion is granted to the extent that limited jurisdictional discovery is ordered.
In the amended complaint, plaintiffs allege that defendants are responsible for planning and carrying out a series of terrorist attacks which specifically targeted civilians. The attacks themselves were allegedly committed by officials, agents and employees of the defendants. Plaintiffs further allege that defendants offered and provided those, acting on their behalf, with substantial material and pecuniary inducements and incentives to plan, organize and execute acts of international terrorism, including the terrorist attacks in which plaintiffs were harmed. Plaintiffs claim that defendants have carried out and utilized these attacks intending to terrorize, intimidate, and coerce the civilian population of Israel into acquiescing to defendants' political goals and demands, and to influence the policy of the United States and Israeli governments in favor of accepting defendants' political goals and demands.
Plaintiffs allege seven separate terrorist attacks; two shooting incidents and five bombings. Specifically, plaintiffs indicate that there were two machine gun attacks. One, in which the shooter opened fire at a civilian automobile traveling the roads near Jerusalem and, in the other, at passersby on the streets of downtown Jerusalem. The locations of the subject bombings are identified as: a crowded bus stop in northern Jerusalem; a cafeteria on the Hebrew University campus in Jerusalem; a passenger-filled civilian bus in Jerusalem; and two bombings occurring on the streets of downtown Jerusalem. Plaintiffs allege that, as a result of these attacks, thirty-three innocent persons were killed and hundreds wounded. Among the killed and wounded were purportedly scores of American citizens.
SUBJECT MATTER JURISDICTION
Defendants contend that no subject matter jurisdiction exists in this case for several reasons. None of their arguments in support thereof has merit. "When jurisdiction is challenged, the plaintiff bears the burden of showing by a preponderance of the evidence that subject matter jurisdiction exists, and the district court may examine evidence outside of the pleadings to make this determination." Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir.2008) (internal quotation marks and citations omitted).
Plaintiffs bring this action under the ATA, which affords civil remedies to United States nationals and their estates, survivors, or heirs, who are injured by reason of an act of international terrorism. 18 U.S.C. § 2333(a). Defendants maintain that the ATA does not provide extraterritorial jurisdiction where, as here, the attacks did not target United States' interests. They further argue that, since this action should be maintained in an Israeli court, this Court is an inappropriate forum.
The ATA bestows subject matter jurisdiction upon the federal courts regardless of whether or not the victims were specifically targeted because of their United States' citizenship. See, Biton v. Palestinian Interim Self-Gov't Auth., 510 F.Supp.2d 144, 146 (D.D.C.2007) ("Biton IV"); see also, Rubin v. Hamas-Islamic Resistance Movement, 2004 WL 2216489, at *2 (D.D.C. Sept. 27, 2004) (Finding that the court had subject matter jurisdiction by virtue of the plain language of § 2333 of the ATA.). Additionally, a district court should dismiss an action on the grounds of inconvenience or inappropriateness of the forum where the alternative available forum is shown to be significantly more convenient and appropriate. 18 U.S.C. § 2334(d).[3] Defendants have failed to make any showing that an Israeli court is a more appropriate forum in which to litigate this action. See e.g., Knox v. Palestine Liberation Org., 248 F.R.D. 420, 427 (S.D.N.Y.2008) ("Knox III"); Linde v. Arab Bank, PLC, 384 F.Supp.2d 571, 591 n. 13 (E.D.N.Y.2005); Estates of Ungar ex rel. Strachman v. Palestinian Auth., 153 F.Supp.2d 76, 100 (D.R.I.2001) ("Ungar I").
Nor does this case, as defendants contend, involve non-justiciable issues precluding federal jurisdiction under the political question doctrine. Defendants warn that, in addition to potentially poisoning any prospect for peace, judicial determinations, made in the course of this litigation, will "interfere with the goals and efforts of the Executive branch to achieve Palestinian statehood through the promotion of President Abbas and the government vehicles of the [PA] and PLO...." (Defs.' Supplemental Opp'n Mem. at 35).
As one court previously observed, "[t]he PA and PLO repeatedly fail to realize that the non-justiciability doctrine is one of political questions and not political cases." Estates of Ungar v. Palestinian Auth., 315 F.Supp.2d 164, 174 (D.R.I.2004) ("Ungar III"). An action does not lie beyond judicial cognizance solely because it raises questions touching upon foreign relations. Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). In responding to similar political and foreign policy concerns previously raised by the PLO, the Second Circuit Court of Appeals, in Klinghoffer v. S.N.C. Achille Lauro, 937 F.2d 44 (2d Cir.1991), observed that "[t]he fact that the issues before [the court] arise in a politically charged context does not convert what is essentially an ordinary tort suit into a non-justiciable political question." Klinghoffer, 937 F.2d at 49.
The relevant factors to consider, in determining whether a case involves a non-justiciable political question, include: (1) "textually demonstrable constitutional commitment of the issue to a coordinate political department;" (2) "a lack of judicially discoverable and manageable standards for resolving it;" (3) "the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;" (4) "the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government;" (5) "an unusual need for unquestioning adherence to a political decision already made;" and (6) "the potentiality of embarrassment from multifarious pronouncements by various departments on one question." Baker, 369 U.S. at 217, 82 S.Ct. 691. Although no one factor is determinative, the first factor (i.e., "textually demonstrable constitutional commitment of the issue to a coordinate political department") is the paramount concern. 767 Third Ave. Assocs. v. Consulate Gen. of Socialist Fed. Republic of Yugoslavia, 218 F.3d 152, 160 (2d Cir. 2000) (quoting Lamont v. Woods, 948 F.2d 825, 831 (2d Cir.1991)).
By enacting the ATA, "both the Executive and Legislative Branches have expressly endorsed the concept of suing terrorist in federal court[.]" Klinghoffer, 937 F.2d at 49-50; see also, Ungar v. Palestine Liberation Org., 402 F.3d 274, 280-81 (1st Cir.2005) ("Ungar IV") Since plaintiffs' action is one in tort, it presents legal questions which have been constitutionally committed to the judicial branch of the government. Klinghoffer, 937 F.2d at 49; see also, Biton v. Palestinian Interim Self-Gov't Auth., 412 F.Supp.2d 1, 6 (D.D.C.2005) ("Biton II") (noting that "the ATA provides jurisdiction for suits in federal courts, the basic elements of the claim lies in tort, not in the relations between Palestine and Israel."). Moreover, the ATA and the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. §§ 1330, 1602-1611 ("FSIA"), as well as traditional common law tort principles, provide this Court with judicially discoverable and manageable standards necessary to resolve the legal issues applicable to this lawsuit. See, Ungar IV, 402 F.3d at 281; Klinghoffer, 937 F.2d at 49; Ungar III, 315 F.Supp.2d at 174; Biton v. Palestinian Interim Self-Gov't Auth., 310 F.Supp.2d 172, 184 (D.D.C.2004) ("Biton I"). Litigation of this matter will not require the Court to make nonjudicial policy determinations. After considering all relevant factors, this Court finds that the political question doctrine does not preclude judicial resolution of this case. See, Ungar IV, 402 F.3d at 282; Klinghoffer, 937 F.2d at 50; Estate of Klieman v. Palestinian Auth., 424 F.Supp.2d 153, 162 (D.D.C.2006) ("Klieman I"): Gilmore v. Palestinian Interim Self-Gov't Auth., 422 F.Supp.2d 96, 100 (D.D.C.2006); Biton II, 412 F.Supp.2d at 4-5; Ungar III, 315 F.Supp.2d at 174; Biton I, 310 F.Supp.2d at 184-85; Knox v. Palestine Liberation Org., 306 F.Supp.2d 424, 449 (S.D.N.Y.2004) ("Knox I"); Estates of Ungar ex rel. Strachman v. Palestinian Auth., 228 F.Supp.2d 40, 45-46 (D.R.I.2002) ("Ungar II"), aff'd on other grounds 2003 WL 21254790 (1st Cir. May 23, 2003).
Defendants also argue that sovereign immunity shields them from suit, under the ATA and FSIA, and hence this Court lacks subject matter jurisdiction.[4] The sovereign immunity doctrine, which "is premised upon the perfect equality and absolute independence of sovereigns," "is designed to give foreign states and their instrumentalities some protection from the inconvenience of suit." Republic of Philippines v. Pimentel, ___ U.S. ___, 128 S.Ct. 2180, 2189-90, 171 L.Ed.2d 131 (2008) (internal quotation marks and citations omitted). An ATA action may not be maintained against a foreign state, or the agencies, officers and employees thereof, acting within their official capacity or under color of legal authority. 18 U.S.C. § 2337(2). The ATA's exclusion, of foreign states and governmental actors from its coverage, is consistent with, and to be applied in accordance with, the ordinary sovereign immunity principles codified in the FSIA. See, Hurst v. Socialist People's Libyan Arab Jamahiriya, 474 F.Supp.2d 19, 29 n. 13 (D.D.C.2007); Klieman I, 424 F.Supp.2d at 158; Ungar III, 315 F.Supp.2d at 175; Knox I, 306 F.Supp.2d at 430-31. The FSIA provides the sole basis for obtaining jurisdiction over a foreign state. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439, 109 S.Ct. 683, 102 L.Ed.2d 818 (1989).
Under the FSIA, a foreign state is presumptively immune from suit unless certain limited exceptions exists. Permanent Mission of India to the United Nations v. Citv of New York, ___ U.S. ___, 127 S.Ct. 2352, 2355, 168 L.Ed.2d 85 (2007). A "foreign state" includes a political subdivision of a foreign state and its agencies or instrumentalities. 28 U.S.C. § 1603(a). In seeking dismissal on sovereign immunity grounds, defendants bear the initial burden of presenting a prima facie case that they are foreign sovereigns. In re Terrorist Attacks on September 11, 2001, 538 F.3d 71, 80 (2d Cir.2008) (quoting Virtual Countries, Inc. v. Republic of South Africa, 300 F.3d 230, 241 (2d Cir.2002)). Neither the PLO nor the PA have satisfied this initial evidentiary burden.
While the PLO and PA argue their sovereignty, they do not claim individual statehood status. Their assertion of immunity derives from the claimed sovereignty of the State of Palestine. Defendants contend that they are essential agencies of Palestine, performing core governmental functions and, as such, are entitled to immunity.
Palestine, whose statehood is not recognized by the United States, does not meet the definition of a "state," under United States and international law, and hence does not constitute a foreign state for FSIA purposes.[5]See, Ungar IV, 402 F.3d at 292; Gilmore, 422 F.Supp.2d at 101; Ungar III, 315 F.Supp.2d at 178-79; Biton I, 310 F.Supp.2d at 180-81; Knox I, 306 F.Supp.2d at 434; Ungar II, 228 F.Supp.2d at 49; see also, Klinghoffer, 937 F.2d at 47-48. Since Palestine is not recognized, under United States law, as a "foreign state," the defendants cannot derivatively secure sovereign immunity as agencies and/or instrumentalities of Palestine. See, Ungar II, 402 F.3d at 294; Ungar I, 315 F.Supp.2d at 177. Similarly unavailing is defendants' alternative argument that, should Palestinian Statehood be found not to exist, the PA is nevertheless entitled to immunity as a political subdivision of Israel. See, Biton III, 510 F.Supp.2d at 147 (Noting that the Israeli government and the Israeli Supreme Court have both rejected the contention that the PA is a subdivision of Israel.).
Finally, defendants argue that subject matter jurisdiction is lacking because this action is premised on acts of war, which is barred under the ATA, and further is based on conduct which does not meet the statutory definition of "international terrorism."[6] Plaintiffs maintain that the purported failings, of which defendants complain, do not affect subject matter jurisdiction, but rather presents an issue as to the adequacy of the pleadings, under Fed.R.Civ.P. 12(b)(6). The characterization of the legal nature of defendants' objections is irrelevant because the Court finds that the attacks, as alleged to have occurred in the amended complaint, do not constitute acts of war nor do they, as a matter of law, fall outside the statutory definition of "international terrorism."
An ATA action may not be brought "for injury or loss by reason of an act of war." 18 U.S.C. § 2336(a). In pertinent part, "the term `act of war' means any act occurring in the course of ... armed conflict between military forces of any origin[.]" 18 U.S.C. § 2331(4)(C). Defendants contend that the persistence of violence, between Israelis and Palestinians in the West Bank and Gaza Strip, constitute "armed conflict," under the ATA. They, therefore, conclude that plaintiffs are precluded from maintaining this action because their alleged injuries were sustained in the midst of an armed conflict. They further contend that the attacks were not intended as acts of terrorism. Rather, defendants argue that the attacks were allegedly committed in an attempt to end the illegal occupation of these territories.
Six of the seven subject attacks occurred in Jerusalem.[7] There has been no showing that the situs of the attacks were in any combat or militarized zone, or were otherwise targeted at military or governmental personnel or interests. Rather, plaintiffs allege that the attacks were intentionally targeted at the civilian population. They were purportedly carried out at locations where non-combatants citizens would be known to congregate, such as in the cafeteria on the Hebrew University campus and on a commercial passenger bus. Additionally, the use of bombs, under such circumstances, is indicative of an intent to cause far-reaching devastation upon the masses. The "benefit" of such weaponry is its merciless capability of indiscriminately killing and maiming untold numbers in heavily populated civilian areas. Such claimed violent attacks upon non-combatant civilians, who were allegedly simply going about their everyday lives, do not constitute acts of war for purposes of the ATA. See e.g., Klieman I, 424 F.Supp.2d at 167 (Attack, on recognized public transport bus in which all the passengers were noncombatant civilians, found not to have occurred in the course of an armed attack.); Biton II, 412 F.Supp.2d at 10-11 (Finding, as a matter of law, that attack on recognized school bus full of noncombatant students and teachers did not occur during the course of an armed conflict.). Furthermore, such alleged acts of violence do not fall outside the statutory definition of "international terrorism" as a matter of law. See e.g., Biton IV, 510 F.Supp.2d at 147 ("[I]ntentionally bombing a bus load of school children [] is `terrorism' by any measure, alleged ambiguities in international law notwithstanding."). At this stage of the litigation, the allegations in the amended complaint, accepted as true, are sufficient to demonstrate that the attacks meet the statutory definition of international terrorism. See e.g., Klieman I, 424 F.Supp.2d at 153; Gilmore, 422 F.Supp.2d at 101-102; Biton I, 310 F.Supp.2d at 185.
After careful examination of all of the parties' submissions and arguments, the Court finds that subject matter jurisdiction exists in this case.
PERSONAL JURISDICTION
Defendants have also formally moved, pursuant to Fed.R.Civ.P. 12(b)(2), to dismiss the amended complaint for lack of personal jurisdiction. Plaintiffs move for an order summarily denying defendants' motion. They contend that, pursuant to Fed.R.Civ.P. 12(h)(1), defendants waived the defense of lack of personal jurisdiction by failing to assert it when they initially raised the issue of subject matter jurisdiction.[8]
In moving to dismiss the complaint under Rule 12, the failure to include a lack of personal jurisdiction as one of the grounds will result in the waiver of such a defense. Fed.R.Civ.P. 12(g)(2), (h)(1). Here, defendants did not raise the issue of subject matter jurisdiction in the context of a motion to dismiss filed by them. Rather, they advanced such an argument in opposition to plaintiffs* motion for a default judgment. Thus, defendants have not waived their right to challenge personal jurisdiction.
Plaintiffs alternatively seek an order permitting them to conduct jurisdictional discovery and directing the parties to formulate a joint discovery plan. Granting jurisdiction discovery is warranted where plaintiffs have establish a prima facie case that the Court has jurisdiction over the defendants. In re Terrorist Attacks, 538 F.3d at 96 (quoting Jazini v. Nissan Motor Co., Ltd., 148 F.3d 181, 186 (2d Cir.1998)). A number of federal courts have concluded that both the PA and PLO have sufficient minimum contacts with the United States to justify the exercise of personal jurisdiction under the Due Process Clause, See e.g., Estate of Klieman v. Palestinian Auth., 467 F.Supp.2d 107, 113 (D.D.C.2006) ("Klieman II"); Ungar I, 153 F.Supp.2d at 88; Biton I, 310 F.Supp.2d at 179. Defendants argue that plaintiffs are precluded from relying on the findings made by prior courts because they were either erroneous or there has been a change of circumstances relevant to the issue of jurisdiction. Personal jurisdiction must be determined on a case-by-case basis because it is dependent upon the defendants' contacts with the State at the time the lawsuit was commenced. See, Klinghoffer, 937 F.2d at 52. The Court finds that limited jurisdictional discovery is warranted, prior to determining defendants' motion to dismiss for lack of personal jurisdiction.[9]See e.g., Knox v. Palestine Liberation Org., 229 F.R.D. 65, 67 (S.D.N.Y.2005) ("Knox II").
CONCLUSION
Accordingly, dismissal for lack of subject matter jurisdiction is denied. Defendants' motion to dismiss, for lack of personal jurisdiction and failure to state a claim, is denied without prejudice to renew. Plaintiffs' cross-motion is granted to the extent they may conduct limited jurisdictional discovery. The matter is referred to Magistrate Judge Ronald L. Ellis for the purpose of supervising jurisdictional discovery.
Defendants are hereby cautioned that, if they wilfully refuse to engage in jurisdictional discovery, it may result in being deemed a concession that the Court has personal jurisdiction over them. See e.g., Knox II, 229 F.R.D. at 71 (Sanctioning defendants, for their failure to comply with court orders regarding jurisdiction discovery, by finding "facts sufficient to permit the exercise of personal jurisdiction over defendants[.]"). Should defendants, in addition to voluntarily foregoing jurisdictional discovery, wilfully choose not to otherwise further defend in this action, plaintiffs may renew their motion for a default judgment.
SO ORDERED:
NOTES
[1] The Palestinian Authority is also known as "The Palestinian Interim Self-Government Authority," "The Palestinian Council" and "The Palestinian National Authority."
[2] Following the failure of both the PLO and PA to timely respond to the complaint, plaintiffs moved for default. Defendants appeared in this action to oppose the default motion, arguing that no subject matter jurisdiction existed. By Order dated August 4, 2006, plaintiffs' motion was denied without prejudice. The parties were afforded an opportunity to make additional submissions and arguments addressing the issue of jurisdiction. The Court indicated that it would thereafter determine, based on the record as a whole, whether the requisite jurisdiction was present. The Court further advised that, if subject matter jurisdiction was found to exist and if defendants wilfully chose not to further defend against this action, the Court would then consider whether a judgment of default should be entered against the defendants.
[3] Subdivision (d) of § 2334 provides:
The district court shall not dismiss any action brought under section 2333 of this title on the grounds of inconvenience or inappropriateness of the forum, unless
(1) the action may be maintained in a foreign court that has jurisdiction over the subject matter and over all the defendants;
(2) that foreign court is significantly more convenient and appropriate; and
(3) that foreign court offers a remedy which is substantially the same as the one available in the courts of the United States.
18 U.S.C. § 2334(d).
[4] In previous similar lawsuits, the PLO and PA raised, and the courts rejected, the same sovereign immunity arguments now asserted in this litigation. Defendants have failed to demonstrate any change of circumstances, be it legal or factual in nature, that would affect the applicability and/or preclusive effect of the prior holdings of those courts. Thus, defendants are collaterally estopped from relitigating the issue of their sovereign immunity. See, Biton IV, 510 F.Supp.2d at 147; Klieman I, 424 F.Supp.2d at 159-60; Biton II, 412 F.Supp.2d at 4-5. Notwithstanding such a procedural bar, this Court independently finds that defendants' claim of sovereign immunity lacks substantive merit.
[5] In determining statehood under the FSIA, the Second Circuit Court of Appeals has relied upon the definition of "state," set forth in the Restatement (Third). See e.g., Klinghoffer, 937 F.2d at 47. The Restatement (Third) provides that:
Under international law, a state is an entity that has a defined territory and a permanent population under the control of its own government, and that engages in, or has the capacity to engage in, formal relations with other entities.
Restatement (Third) of the Foreign Relations Law of the United States § 201.
The First Circuit Court of Appeals has cautioned that the Restatement standard may be misplaced. Ungar IV, 402 F.3d at 284 n. 6. The First Circuit opined that the appropriate standard may be "that a foreign state, for purposes of the FSIA, is an entity that has been recognized as a sovereign by the United States government." Id. The First Circuit, however, noted that even, "[i]f recognition were the test, the result would be the same" because "the United States has not recognized Palestine as a sovereign nation." Id.; see also, Knox I, 306 F.Supp.2d at 438-40 (Finding that, even if Palestine constitutes a "state," the PLO and PA are still not entitled to immunity because the United States does not recognize or otherwise treat Palestine as a sovereign state, nor does it recognize the PLO and PA as official representatives of the purported State of Palestine.).
[6] "[T]he term `international terrorism means activities that'
(A) involve violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or of any State, or that would be a criminal violation if committed within the jurisdiction of the United States or of any State;
(B) appear to be intended
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnaping; and
(C) occur primarily outside the territorial jurisdiction of the United States, or transcend national boundaries in terms of the means by which they are accomplished, the person they appear intended to intimidate or coerce, or the locale in which their perpetrators operate or seek asylum[.]"
18 U.S.C. § 2331(1)(A-C).
[7] One of the machine gun attacks allegedly targeted a civilian's automobile traveling upon a public highway in the West Bank.
[8] Other than a single reference that defendants' motion should also be summarily denied "on the basis of collateral estoppel," plaintiffs advance no legal or factual basis in support of this alternative legal ground. (Pls.' Supp. Mem. at 2).
[9] Defendants have also moved, pursuant to Fed.R.Civ.P. 12(b)(6), to dismiss the pendent law claims for failure to state a claim for relief. It is inappropriate for the Court to address the adequacy of the pleadings until the threshold issue of personal jurisdiction is determined. Accordingly, the Rule 12(b)(6) branch of defendants' motion is similarly denied without prejudice. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597967/ | 583 F. Supp. 1089 (1984)
TVSM, INC.
v.
ALEXANDER & ALEXANDER, INC., Defendant and Third-Party Plaintiff,
and
Wausau Underwriters Insurance Company, Defendant,
and
Showtime Entertainment, Third-Party Defendant.
Civ. A. No. 82-5831.
United States District Court, E.D. Pennsylvania.
April 24, 1984.
*1090 Sandra A. Girifalco, Philadelphia, Pa., for third-party plaintiff Alexander & Alexander.
Joseph F. Van Horn, Jr., Philadelphia, Pa., for defendant.
OPINION
JOSEPH S. LORD, III, Senior District Judge.
Plaintiff's business prepares program guides for cable television companies throughout the United States. Third party defendant Showtime Entertainment sells shows for transmission on cable television. Showtime provides plaintiff with schedules which TVSM compiles, prints and distributes in its program guides. On July 27, 1982, TVSM published and distributed inaccurate program guides. In all of the guides, according to the complaint, the listings for Showtime Entertainment programming was in error by one hour. The complaint alleges that TVSM incurred increased expenses to notify recipients of the program guides of the inaccuracy of the *1091 guide and to distribute corrected program guides.
The complaint alleges further that TVSM advised defendant Alexander & Alexander, plaintiff's insurance broker, of the loss. Alexander & Alexander (A & A) advised TVSM, according to the complaint, that a policy obtained through A & A and written by defendant Wausau Underwriters Insurance Company covered the claim. Wausau allegedly agreed that the policy provided coverage for the claim. However, it subsequently refused to pay TVSM for the increased expenses plaintiff had incurred.
Plaintiff's complaint comprises three counts. Count I alleges that the Wausau policy covers plaintiff's claim and that Wausau's refusal to pay has been in bad faith.
Count II alleges that TVSM and Wausau intended that the Wausau policy provide coverage for claims such as this and demands that, in the event that the policy does not cover this claim, the court reform the contract to include this claim.
Count III alleges, in the alternative, that if the Wausau policy is not deemed to provide coverage for this claim and if the court refuses to reform the contract between plaintiff and Wausau, A & A, as agent of TVSM for the purpose of acquiring insurance coverage, negligently breached its duties and obligations to TVSM.
Defendant A & A filed a third-party complaint against Showtime Entertainment (Showtime), alleging that Showtime promotes its business by providing monthly program guide production kits to publishers of cable television program guides such as TVSM. It further alleges, that on June 17, 1982, Showtime sent to TVSM its August 1982 program guide production kit containing inaccurate times for its program listings. The third-party complaint further alleges that if TVSM incurred damages, as alleged in its complaint, the damages were caused by the negligence of Showtime. The complaint demands judgment against the third-party defendant, Showtime, for all sums that may be adjudged against defendant A & A.
Third-party defendant Showtime has moved for judgment on the pleadings and for dismissal of Showtime as a third-party defendant in this action. Under Federal Rule of Civil Procedure 14(a) a defendant, as a third-party plaintiff, may bring in a person not a party to the action "who is or may be liable" to the defendant for all or part of the plaintiff's claim against defendant. Because there is no set of facts and no theory under which third-party defendant Showtime may be liable to third-party plaintiff A & A, I will grant Showtime's motion.
I have diversity jurisdiction over this case. Therefore, Pennsylvania law provides the answer to the question whether the third-party defendant "may be liable" to the third-party plaintiff. Federal Rule of Civil Procedure 14(a) provides merely a procedural means of adding a third-party defendant; it provides no substantive rights. Under Pennsylvania law, the only means by which Showtime may be liable to third-party plaintiff A & A are indemnity, contribution, and subrogation.
I. Indemnity
Indemnity shifts the entire loss from one defendant to another. Burch v. Sears, ___ Pa.Super. ___, 467 A.2d 615, 622 (1983). In Pennsylvania, indemnity is available only from those who are primarily liable to those who are merely secondarily or vicariously liable. Id. "To evaluate primary as against secondary liability courts have focused on factors such as active or passive negligence and knowledge of or opportunity to discover or prevent the harm." Id. The Pennsylvania Supreme Court has described indemnity as follows:
It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable.
Builders Supply Co. v. McCabe, 366 Pa. 322, 325, 77 A.2d 368 (1951). In the *1092 present case, plaintiff's complaint cannot be construed to allege secondary negligence on the part of A & A and primary negligence on the part of Showtime. Furthermore, there is no contractual relationship or other "legal relationship" alleged between A & A and Showtime. If the jury finds against defendant A & A, it will do so based on the theory that A & A was negligent in obtaining the Wausau insurance policy for the plaintiff. This negligence, if found by the jury, would be active fault on the part of the defendant A & A, and A & A could not shift its loss to Showtime because there is no secondary relationship between A & A and Showtime.
II. Contribution
A right to contribution in Pennsylvania arises only among joint tortfeasors. Lasprogata v. Qualls, 263 Pa.Super. 174, 178 n. 2, 397 A.2d 803, 805 n. 2 (1979). See also Tesch v. United States, 546 F. Supp. 526 (1982). 42 Pa.Cons.Stat. Ann. § 8322 defines joint tortfeasors as "two or more persons jointly or severally liable in tort for the same injury to persons or property, whether or not judgment has been recovered against all or some of them." According to Lasprogata, in order for the parties to be joint tortfeasors "`the parties must either act together in committing the wrong, or their acts, if independent of each other, must unite in causing a single injury.'" Id. 263 Pa.Super. at 179 n. 4, 397 A.2d 803, quoting Black's Law Dictionary, 1661 (4th ed. 1968). If the acts of the parties are severable as to time, and neither has the opportunity to guard against the other's acts, and each breaches a different duty owed to the injured plaintiff, the parties cannot be considered joint tortfeasors. Id. at 179, 397 A.2d at 805. Clearly, A & A and Showtime could not be found to be joint tortfeasors. Their alleged acts of negligence are totally separate acts that not only were severable as to time, but also breached different duties owed to plaintiff.
III. Subrogation
Third-party plaintiff A & A's last argument is that if A & A is liable to TVSM, it will be liable "to the same extent as an insurer would have been liable had the insurance been properly effected." According to the argument, if Wausau were to pay the claim, Wausau would be subrogated to the rights of the insured to collect from Showtime. Thus, because A & A will be liable to the extent that Wausau would have been liable, A & A argues that it too can be subrogated to the insured's right of action against Showtime. This theory has two defects. First, a right of subrogation is a contractual right between the insurer and the insured. A & A makes no claim that it had a contract with the plaintiff that would grant A & A a right to subrogation. Secondly, if A & A is found liable, the liability will be based on A & A's negligence in not acquiring the proper policy. Therefore, A & A will not be entitled to subrogation as an equitable right because A & A cannot be in the same position as an insurer who is liable for a claim through no fault of its own.
For the foregoing reasons, I will grant third-party defendant's motion for judgment on the pleadings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597944/ | 583 F. Supp. 396 (1984)
GIGLIOTTI CORPORATION
v.
BUILDING AND CONSTRUCTION TRADES COUNCIL OF PHILADELPHIA AND VICINITY.
Civ. A. No. 83-4640.
United States District Court, E.D. Pennsylvania.
March 29, 1984.
*397 *398 Roger D. Susanin, Bray, McAleese, McGoldrick & Susanin, Bala Cynwyd, Pa., for plaintiff.
Richard B. Sigmond, Meranze, Katz, Spear & Wilderman, Philadelphia, Pa., for defendant.
OPINION
JOSEPH S. LORD, III, Senior District Judge.
Plaintiff is a general contractor. Defendant is a labor organization whose members comprise various trade unions in the Philadelphia area and its surroundings. Defendant has filed a demand for arbitration with the American Arbitration Association, based on a 1969 contract between defendant and Chris Gigliotti and Son, Inc., plaintiff's predecessor corporation. Plaintiff seeks a declaration that the contract is unenforceable as against plaintiff and a permanent injunction barring the arbitration.
The parties have stipulated to the following facts: On March 19, 1969 Chris Gigliotti and Son, Inc. entered into a contract with the defendant. Among other provisions, that contract guaranteed that Chris Gigliotti and Son, Inc. would bargain only with a member union of the defendant council. It further guaranteed that Chris Gigliotti and Son, Inc. would require its subcontractors to enter into collective bargaining agreements only with member unions of the defendant. Furthermore, the contract stated that the agreement "shall remain in full force and effect until the day of March 19, 1970, and shall continue from year to year thereafter unless either party gives written notice to the other, ninety days prior to any annual termination date, of the desire to change any of the terms of this agreement." (Exhibit B to the stipulation). On April 19, 1974, Thomas Magrann, the business manager of the defendant, sent a letter to Chris Gigliotti and Son, Inc., along with a revised building trades agreement. The letter stated that the 1969 agreement was "for all intents and purposes ... outmoded". (Exhibit C to the stipulation). That letter was received on or about April 24, 1974.
On April 30, 1974, Chris Gigliotti and Son, Inc. merged into Verree-Welsh Homes, Inc. (Exhibit A to the stipulation). On the same day, the enterprise resulting from the merger was renamed Gigliotti Corporation. The ownership interests in Chris Gigliotti and Son, Inc., Verree-Welsh Homes, Inc. and Gigliotti Corporation during the relevant time periods were as follows: (1) On March 19, 1969, eighty-five percent of the outstanding shares of Verree-Welsh Homes, Inc. was owned by Chris Gigliotti. Fifteen percent of the outstanding shares of Verree-Welsh Homes, Inc. was owned by Frank J. Montamuro; (2) On March 19, 1969, eighty-five percent of the outstanding shares of Chris Gigliotti and Son, Inc. was owned by Chris Gigliotti. Fifteen percent of the outstanding shares was owned by Frank J. Montamuro; and (3) On May 1, 1974, ninety-five percent of the outstanding shares of Gigliotti Corporation was owned by Chris Gigliotti. Five percent of the outstanding shares of Gigliotti Corporation was owned by Frank J. Montamuro.
From March 19, 1969 until the date of merger, April 30, 1974, Chris Gigliotti and Son, Inc. employed carpenters and laborers who were represented by member unions of the Building and Construction Trades Council. It did not employ any other individuals skilled in trades represented by member unions of the BCTC. From March 19, 1969 until the date of the merger, April 30, 1974, Verree-Welsh Homes, Inc. engaged solely in the purchase, development, and sale of real estate and at no time did it employ any construction workers.
Neither Chris Gigliotti and Son, Inc. nor Gigliotti Corporation ever communicated any notice of termination to the BCTC in reference to the 1969 agreement. Furthermore, neither Chris Gigliotti and Son, Inc. nor Gigliotti Corporation ever responded to *399 the 1974 letter from Thomas Magrann mentioned above.
On May 1, 1975, the Home Builders Association, on behalf of Gigliotti Corporation, entered into a collective bargaining agreement with the Laborers District Council of the Metropolitan Area of Philadelphia and Vicinity. On May 1, 1978, the Home Builders Association, on behalf of Gigliotti Corporation, entered into a collective bargaining agreement with the Metropolitan District Council of the United Brotherhood of Carpenters and Joiners of America. (Exhibit E to the stipulation).
The collective bargaining agreements between Gigliotti Corporation and the United Brotherhood of Carpenters and Joiners and the Laborers' District Council terminated in 1983. Since the termination of those agreements, Gigliotti Corporation has not entered into any collective bargaining agreements with any of the affiliated local unions of the BCTC. Furthermore, since the termination in 1983 of those agreements, Gigliotti Corporation has subcontracted work on occasion to subcontractors who are not signatory to collective bargaining agreements with affiliated local unions of the BCTC. On August 1, 1983, the BCTC made a demand for arbitration based on its 1969 agreement with Chris Gigliotti and Sons, Inc., contending that plaintiff should hire only members of unions affiliated with BCTC.
Under § 301 of the Labor Management Relations Act, 29 U.S.C. § 185(a), I have jurisdiction over this suit. Because the contract calls for arbitration, however, my role as a federal district judge is very limited. United Steelworkers v. American Manufacturing Company, 363 U.S. 564, 80 S. Ct. 1343, 4 L. Ed. 2d 1403 (1960). Under United Steelworkers, I must determine whether the dispute in question is arbitrable. Normally, my determination would be limited to "whether the party seeking arbitration is making a claim which on its face is governed by the contract." Id. at 568, 80 S.Ct. at 1346.
In this case, however, there is an additional question: whether the contract is enforceable against Gigliotti Corporation. If Gigliotti is not bound by the contract, then it cannot be compelled to arbitrate a dispute pursuant to the arbitration clause of the contract. John Wiley and Sons, Inc. v. Livingston, 376 U.S. 543, 84 S. Ct. 909, 11 L. Ed. 2d 898 (1964).
I. Arbitrability of the dispute
The arbitration clause in the agreement states that "all disputes, grievances or complaints involving the interpretation or application of this Agreement" shall be arbitrated. Assuming that Gigliotti Corporation is a party to the contract, this broad clause clearly covers the dispute in question, i.e., whether or not the plaintiff is bound to hire carpenters and laborers who are members of the unions affiliated with the BCTC.
II. Enforceability of the contract against plaintiff
Plaintiff asserts, however, five reasons why the 1969 contract with BCTC is unenforceable against Gigliotti Corporation. First, Gigliotti Corporation claims that it is not bound by the contract because plaintiff is not a signatory to the contract. Second, plaintiff argues that before the merger, BCTC, through the 1974 Magrann letter, terminated the contract with Chris Gigliotti and Son, Inc. pursuant to the termination clause. Thirdly, plaintiff asserts that the Magrann letter repudiated the contract as a matter of law. Fourth, plaintiff argues that the contract automatically terminated as a matter of law when Gigliotti Corporation executed collective bargaining agreements in 1975 and 1978 with its employees. And, finally, plaintiff asserts that the contract violates §§ 1 and 2 of the Sherman Act and is therefore unenforceable as contrary to public policy.
Because I find that plaintiff is bound by the contract as a successor to Chris Gigliotti and Son, Inc. and because the contract has not been terminated or repudiated as a matter of law, I refuse to grant plaintiff's requested declaratory and injunctive relief.
*400 The fact that plaintiff is not signatory to the contract with BCTC is not necessarily conclusive. In John Wiley, supra, the Court held that a successor corporation was required to arbitrate under a contract entered into by its predecessor with the union. In Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 94 S. Ct. 2236, 41 L. Ed. 2d 46 (1974), the Court held that a corporation that merely purchased the assets of its predecessor was not bound by the collective bargaining agreement of its predecessor with the union. The answer to the question of successor liability for a contract with the union depends on the particular facts in each case. Id. at 262 n. 9, 94 S.Ct. at 2243 n. 9. The Howard Johnson Court distinguished Wiley because Wiley involved a merger "as a result of which the initial employing entity completely disappeared", id. at 257, 94 S.Ct. at 2240, whereas Howard Johnson's merely bought some of the assets from the initial employers and the original companies continued to exist as viable corporate entities. Id.
The Court in Howard Johnson set forth reasons for distinguishing between a merger and a purchase of assets. First, the merger in Wiley "was conducted `against a background of state law that embodied the general rule that in merger situations the surviving corporation is liable for the obligations of the disappearing corporation'", Howard Johnson Co., supra, at 257, 94 S.Ct. at 2241, quoting NLRB v. Burns International Security Services, 406 U.S. 272, 286, 92 S. Ct. 1571, 1581, 32 L. Ed. 2d 61 (1972).
Furthermore, in a merger situation, the original contracting party disappears and there may be no means to enforce the obligation voluntarily undertaken by the disappearing corporation. In Howard Johnson the union had a realistic remedy against the corporations that sold some of their assets to Howard Johnson.
The present case falls squarely within the Wiley reasoning. First, there was a merger as a result of which Chris Gigliotti and Son, Inc. disappeared. Second, Pennsylvania state law in existence at the time of the merger held the surviving corporation of a merger responsible for all the liabilities and obligations of each of the corporations so merged or consolidated, 15 Pa.Stat.Ann. § 1907, Dawejko v. Jorgensen Steel Company, 290 Pa.Super. 15, 434 A.2d 106 (1981). Third, the merger agreement itself makes Gigliotti Corporation responsible for the contract obligations of its predecessor. That contract states:
The continuing corporation shall ... be responsible for all debts, liabilities, obligations and duties of each constituent corporation, and all said rights, liens, debts, liabilities, obligations and duties shall henceforth attach to the continuing corporation and may be enforced against it to the same extent as if they had been incurred or contracted by it ...
There can be no doubt, therefore, that in this case a requirement to arbitrate disputes with the BCTC was "fairly within the reasonable expectations of the parties." 417 U.S. at 257, 94 S.Ct. at 2241. There is no merit to plaintiff's argument that the merger provides an escape from the duties to arbitrate under the contract with the BCTC.
Plaintiff's second argument that the 1974 Magrann letter terminated the contract can also be dismissed. A determination of whether the letter terminated the contract or not depends on an interpretation of the termination clause of the contract. Because the arbitration clause of the contract calls for arbitration of all disputes involving the interpretation of the agreement, this question is clearly one for the arbitrator.
Gigliotti Corporation contends next that the agreement between BCTC and Chris Gigliotti and Son, Inc. is a pre-hire agreement authorized by § 8(f) of the National Labor Relations Act, 29 U.S.C. § 158(f). In Jim McNeff v. Todd, ___ U.S. ___, 103 S. Ct. 1753, 75 L. Ed. 2d 830 (1983), the Court held that a § 8(f) pre-hire agreement can be repudiated by a party before the union gains majority status. According to plaintiff, *401 the Magrann letter was a repudiation of the agreement by the union.
This argument also fails. First, defendant contests plaintiff's characterization of the agreement between Chris Gigliotti and Son, Inc. and BCTC as merely a pre-hire agreement under § 8(f). In Altemose Construction Co. v. BCTC, No. 73-773, slip op. (E.D.Pa. July 5, 1983), Judge Shapiro found that this very agreement was "at least a pre-hire agreement." In that case, it was necessary for the judge to find a pre-hire agreement in order to establish a collective bargaining relationship between the parties. Judge Shapiro did not consider whether the agreement was more than a § 8(f) pre-hire agreement. I agree with defendant's contention that Judge Shapiro's finding that the agreement was "at least a pre-hire" agreement is not determinative of the question whether the agreement was more than an agreement under § 8(f). Furthermore, even assuming that this is a § 8(f) agreement, there is no evidence in the record as to when or whether the union reached majority status.
Resolving, as I must, all doubts in favor of arbitration, the questions of whether this is an § 8(f) agreement, and, if so, whether the agreement was repudiated by the Magrann letter are ones of interpretation of the contract and must be decided by the arbitrator.
Plaintiff's next argument is that the contract between it and BCTC automatically terminated as a matter of law when plaintiff contracted with the laborers and carpenters in 1975 and 1978 respectively, thereby establishing terms and conditions of employment for every construction trade member that it would employ. Plaintiff reasons that because all carpenters and laborers who were covered by the BCTC agreement had contracts with the plaintiff by 1978, the policy of exclusive representation embodied in § 9(a) of the National Labor Relations Act would require the automatic termination of the BCTC agreement.
Section 9(a) requires that representatives selected as bargaining agents "shall be exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment ..."
The purpose of § 9(a) is to stabilize industrial relations and promote harmony in the work place by prohibiting employers from dealing with minority unions or individuals in order to weaken union support or usurp the function of the union to speak for its members. R. Gorman, Labor Law 379 (1976).
All carpenters and laborers covered by the BCTC agreement had union contracts with Gigliotti Corporation from 1978 to 1983. The question is whether the BCTC umbrella agreement terminated as a matter of law in 1978. In BCTC v. NLRB, 415 F.2d 656 (9th Cir.1969) and Dallas Building and Construction Trades Council v. NLRB, 396 F.2d 677 (D.C.Cir.1968) the courts held that picketing in order to obtain an umbrella agreement where bargaining units were already in place was an unfair labor practice under § 8(b)(7)(A), 29 U.S.C. § 158(b)(7)(A). Plaintiff argues that these cases support its contention that umbrella agreements must be illegal as a matter of law if the employees are represented by other bargaining agreements. Plaintiff has not cited, nor have I found, any cases that are directly on point. In Dallas, supra, the court conceded that broad umbrella contracts are legal in the construction industry. Both BCTC and Dallas condemned picketing as an illegal method to attain such an agreement, not the agreements themselves. Moreover, even assuming that § 9(a) would bar the BCTC from enforcing its umbrella agreements as a matter of law during the pendency of collective bargaining agreements between individual unions representing the laborers and carpenters and Gigliotti Corporation, those collective bargaining agreements expired in 1983 and there can be no conflict between the individual unions and the BCTC now. For these reasons, I cannot find that the BCTC agreement terminated as a matter of law in 1978. Whether as a *402 matter of fact the contract called for its own dissolution upon representation of the laborers and carpenters by individual unions is a question of contract interpretation for the arbitrator.
Plaintiff's final contention is that the contract violates §§ 1 and 2 of the Sherman Act and is therefore unenforceable as contrary to public policy.[1]
Plaintiff relies on the decision in Connell Construction Co. v. Plumbers and Steamfitters Local 100, 421 U.S. 616, 95 S. Ct. 1830, 44 L. Ed. 2d 418 (1975), in which the Court found that an agreement between a labor union and a construction company was subject to the antitrust laws.
I must first determine whether under the labor laws there is protection for the type of agreement in question here. Then, I must determine whether there is an exemption based on the labor laws from antitrust liability for this type of agreement.
Section 8(e) of the National Labor Relations Act, 29 U.S.C. § 158(e), prohibits "hot cargo" clauses, that is, agreements between the employer and union forbidding the employer to refrain from using certain products or from doing business with other persons. There is, however, a proviso to § 8(e) that protects the construction industry.[2] The first question in Connell and in this case is whether the agreement in question falls within the protection of the construction proviso. In Connell, where the union expressly denied an interest in representing Connell's employees, the court held that the agreement between the employer and the union did not occur in the context of a collective bargaining relationship between the employer and union and, therefore, the construction industry proviso to § 8(e) did not protect the agreement. In Connell, the union, a stranger to the general contract, successfully picketed the employer in order to force the employer to sign an agreement not to work with nonunion subcontractors in any of the employer's places of business. Woelke & Romero Framing, Inc. v. NLRB, 456 U.S. 645, 102 S. Ct. 2071, 72 L. Ed. 2d 398 (1982) clarified the Connell decision. In Woelke, the Court held that the construction industry proviso to § 8(e) of the NLRA "ordinarily shelters union signatory subcontracting clauses that are sought or negotiated in the context of a collective bargaining relationship even when not limited in application to particular job sites at which both union and non-union workers are employed." 456 U.S. at 666, 102 S.Ct. at 2083.
In Altemose, supra, Judge Shapiro found that the agreement in question here is "at least" a pre-hire agreement under § 8(f). This finding was sufficient under Donald Schriver, Inc. v. NLRB, 635 F.2d 859 (D.C.Cir.1980), cert. denied, 451 U.S. 976, 101 S. Ct. 2058, 68 L. Ed. 2d 357 (1981), to find a collective bargaining relationship and, consequently, protection for the agreement under the construction industry proviso to § 8(e). I agree with Judge Shapiro's characterization that the purpose of a prehire agreement is to initiate a collective bargaining agreement that will establish enforceable terms concerning conditions of employment. Therefore, whether this is a pre-hire agreement or more than a pre-hire agreement, it took place during a collective bargaining relationship and is protected by the proviso to § 8(e) ...
Having concluded that the labor laws protect the agreement in question, the only remaining question is whether the agreement is exempt from the antitrust laws. *403 In Connell, the Court acknowledged that there were two types of labor exemptions from the antitrust laws. In this case, defendant argues that it is exempt by means of the nonstatutory exemption which "has its source in the strong labor policy favoring the association of employees to eliminate competition over wages and working conditions." 421 U.S. at 622, 95 S.Ct. at 1835.
Although a finding that a particular agreement is protected by the labor laws may not conclusively exempt the agreement from liability under the antitrust laws, Consolidated Express v. New York Shipping Association, 602 F.2d 494 (3d Cir.1979), cert. granted, vacated and remanded, 448 U.S. 902, 100 S. Ct. 3040, 65 L. Ed. 2d 1131 (1980), such a finding argues strongly for antitrust exemption. See Altemose, supra at 44. In this case, I am acting with an almost barren record of few stipulated facts. Judge Shapiro found a nonstatutory exemption for this very agreement upon a full record. Plaintiff has not met its burden of proving that the agreement is unenforceable as violative of the Sherman Act. I will therefore adopt Judge Shapiro's finding and deny plaintiff's injunctive and declaratory relief and order that the parties arbitrate the dispute.
NOTES
[1] Section 1 of the Sherman Act, 15 U.S.C. § 1 provides that any contract or combination in restraint of trade or commerce is illegal. Section 2 of the Sherman Act, 15 U.S.C. § 2 provides that it shall be illegal to monopolize or attempt to monopolize any part of the trade or commerce among United States.
[2] § 8(e) states: "It shall be an unfair labor practice for any organization and any employer to enter into any contract ... whereby such employer ... agrees ... to cease doing business with any other person ... Provided, That nothing in this subsection shall apply to an agreement between a labor organization and an employer in the construction industry relating to the contracting or subcontracting of work to be done at the site of the construction, alteration, painting, or repair of a building or structure, or other work ...". | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597926/ | 3 So. 3d 1168 (2009)
Ricky BRADLEY, Petitioner,
v.
STATE of Florida, Respondent.
No. SC08-196.
Supreme Court of Florida.
February 26, 2009.
James S. Purdy, Public Defender, Michael S. Becker and Rebecca M. Becker, Assistant Public Defenders, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
Bill McCollum, Attorney General, Tallahassee, Florida, and Mary G. Jolley, Wesley H. Heidt, and Kellie A. Nielan, Assistant Attorneys General, Daytona Beach, FL, for Respondent.
QUINCE, C.J.
This case is before the Court for review of the decision of the Fifth District Court of Appeal in Bradley v. State, 971 So. 2d 957, 958 (Fla.5th DCA 2007). The district court certified that its decision is in direct conflict with the decision of the Fourth District Court of Appeal in Jackson v. State, 852 So. 2d 941 (Fla.4th DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we approve the result reached by the Fifth District in Bradley, and disapprove the results in Jackson and Mobley v. State, 939 So. 2d 213 (Fla.1st DCA 2006), to the extent they hold that a defendant's plea may not constitute an express waiver of a defective charging document that fails to allege the proper grounds for sentence enhancement.
FACTS AND PROCEDURAL HISTORY
Ricky Bradley was charged by information with robbery with a firearm in violation of sections 812.13(1) and (2)(a), Florida Statutes (2002). See Bradley, 971 So.2d at 958. Citing section 775.087(2), Florida Statutes (2002), the information alleged that while committing the robbery Bradley was in possession of and carried a firearm. See id. Bradley later entered a plea of nolo contendere to robbery with a firearm pursuant to a plea agreement. The plea agreement called for a twenty-year mandatory minimum prison sentence that resulted from his discharge of a fire-arm *1169 during the robbery. Prior to entry of his plea, Bradley's counsel stated on the record that Bradley was subject to the twenty-year mandatory minimum term under section 775.087(2), Florida Statutes (2002). See id.
Although Bradley did not appeal his conviction and sentence, Bradley did subsequently file a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800. See Bradley, 971 So.2d at 958. Bradley argued that his twenty-year mandatory minimum sentence pursuant to section 775.087(2), Florida Statutes (2002), was illegal because the information charging him with robbery did not allege that he discharged a firearm during the commission of the robbery. The trial court denied the motion. See id.
The Fifth District Court of Appeal affirmed the trial court's denial of relief and certified conflict with the Fourth District Court of Appeal on the issue of whether a defendant's nolo contendere plea constitutes a waiver of a defective charging document that fails to allege the proper grounds for sentence enhancement pursuant to section 775.087(2), Florida Statutes. See Bradley, 971 So.2d at 961. In Bradley, the Fifth District held that the defendant's explicit plea to discharge of a firearm during the commission of a robbery constituted a waiver of the missing element. See id. at 961. In contrast, under similar circumstances, the Fourth District Court of Appeal in Jackson v. State, 852 So. 2d 941 (Fla.4th DCA 2003), held that the defendant's explicit plea to discharge of a firearm resulting in great bodily harm during the commission of a robbery did not constitute a waiver of the defective information. See id. at 944.
Bradley petitioned this Court for discretionary review, and we accepted review to resolve the conflict that exists between the district courts of appeal.
ANALYSIS
The District Courts
The Florida district courts disagree about whether a defendant's nolo contendere plea may constitute a waiver of a defective charging document that fails to allege the proper grounds for sentence enhancement pursuant to section 775.087(2), Florida Statutes. In Jackson, the defendant pled no contest to eight counts, one of which was robbery with a deadly weapon, a firearm. The defendant claimed that his plea to that felony was improperly reclassified under section 775.087(2)(a)3, Florida Statutes (1999), because the information did not allege that he "discharged" a firearm or inflicted death or great bodily harm. See 852 So.2d at 942-44. The information only charged that the defendant "carried" a firearm. See id. at 944. The Fourth District concluded that an allegation of "carrying" a firearm cannot sustain a sentence enhancement under section 775.087(2)(a)3; therefore, the defendant's sentence could not stand. See id. The district court held that the defendant did not waive any challenge to the sentence by way of his no contest plea. See id. The court reasoned that even though Jackson and his counsel were under a mistaken belief that he was pleading to a charge that carried a twenty-five-year mandatory minimum sentence that fact does not make the sentence legal where the information charged a crime with only a ten-year mandatory minimum sentence. See id. (citing Leavitt v. State, 810 So. 2d 1032 (Fla.1st DCA 2002); Vickers v. State, 630 So. 2d 1229 (Fla.2d DCA 1994)).
The First District Court of Appeal held similarly in Mobley v. State, 939 So. 2d 213 (Fla.1st DCA 2006). Mobley entered a plea of guilty to two counts of armed robbery pursuant to a plea agreement. The plea agreement called for concurrent sentences *1170 of twenty-five years' imprisonment with twenty-year mandatory minimum terms for discharging a firearm. See id. at 213. The defendant contended that his twenty-year mandatory minimum sentence was illegal because the information did not charge him with "discharging" a firearm under section 775.087(2)(a)2, Florida Statutes (2002). The information charged the defendant with "possession" of a firearm, which carried a mandatory minimum term of only ten years' imprisonment under section 775.087(2)(a)1. See id. The First District agreed, holding that because the defendant was only charged with possessing a firearm he could not be sentenced for discharging a firearm. See id. at 214 (citing Jackson, 852 So.2d at 944; Gibbs v. State, 623 So. 2d 551, 555 (Fla.4th DCA 1993)). The district court concluded that the grounds for enhancement of a sentence under section 775.087(2) must be charged in the information. See id. (citing Jackson, 852 So. 2d 941; Gibbs, 623 So. 2d 551). The court noted that the mere fact that the defendant agreed to the twenty-year mandatory minimum sentence was irrelevant. See id. (citing Leavitt, 810 So. 2d 1032).
In contrast to the First and Fourth Districts, in Bradley, the case that is now before this Court, the Fifth District held that Bradley's explicit plea to discharge of a firearm during the commission of a robbery constituted a waiver of the missing discharge element. See 971 So.2d at 960. The district court reasoned that even though the information failed to charge the discharge of a firearm element, the record demonstrates that Bradley was specifically advised of what offense he was pleading to under section 775.087(2) and that he was exposing himself to a twenty-year mandatory minimum sentence required for discharge of a firearm. See id. at 961. Additionally, the district court found that the plea proceeding reflected that Bradley was sufficiently put on notice that he was subject to the twenty-year mandatory minimum sentence due to his discharge of a firearm during the robbery. See id. The Fifth District disagreed with the Jackson opinion because it found that the Fourth District placed a premium on form at the expense of substance and the defendant in Jackson could not credibly argue that he was not aware of his plea agreement terms. See Bradley, 971 So.2d at 961.
This Case
The Fifth District in Bradley affirmed the trial court's denial of relief on Bradley's claim that his twenty-year mandatory minimum sentence pursuant to section 775.087(2) was illegal because the information charging him with robbery did not allege that he discharged a firearm during the commission of the robbery. The Fifth District held that Bradley's explicit plea to discharge of a firearm during the commission of a robbery constituted a waiver of the missing element. See 971 So.2d at 961. We agree and hold that the defect in the charging information was cured by the plea to the charge. See Fla. R.Crim. P. 3.190; Deparvine v. State, 995 So. 2d 351, 373-74 (Fla.2008).
In the instant case, Count II of the information alleged:
IN THAT RICKY BRADLEY, on or about August 11, 2002, in the County of VOLUSIA and State of Florida, by force, violence, assault, or putting in fear, did knowingly take away cash and/or u.s. [sic] currency, of some value, from the person or custody of [victim], with the intent to permanently or temporarily deprive [victim] or any other person not the defendant(s) of the property, and in the course of committing the robbery RICKY BRADLEY was in possession of and carried a firearm, contrary to Florida Statutes 812.13(1) and *1171 (2)(a) and 775.087(2). (1DEG FEL, PBL)
(Emphasis added.)
Where a firearm is possessed or used during the commission of certain enumerated crimes, section 775.087(2)(a), Florida Statutes, often referred to as the 10/20/Life statute, requires the imposition of a mandatory minimum sentence. See § 775.087(2)(a)1-3, Fla. Stat. (2007). Bradley was sentenced pursuant to section 775.087(2)(a)2, Florida Statutes (2002), which provides:
Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a "firearm" or "destructive device" as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.
(Emphasis added.)
Prior to Bradley entering his plea of nolo contendere to robbery with a firearm, his counsel informed the court:
[P]ursuant to negotiations with the [S]tate of Florida[,] Mr. Bradley is going to withdraw his not guilty pleas as to attempted felony murder and armed robbery with a firearm. He's going to be pleading no contest to each count of the information. There's going to be a stipulation that the injuries to the victim... were moderate. What this does is take it out of the 25 year mandatory sentencing under the 10/20/life bill. Which if they were deemed to be severe injuries[,] it would be a mandatory 25.
The agreement is pursuant to the 10/20/life bill he is still exposed, because the firearm was discharged, to 20 years mandatory. He will be sentenced to 20 years in the state prison with the expectations [sic] he will have to serve 20 years day for day with credit for time served. I've explained to him the only way he'll get out in less than 20 years is if some how the laws change and it applies to it. But as it stands now[,] he's got to do 20 years.
(Emphasis added.) Moreover, during the plea proceeding, the court asked Bradley's counsel for a factual basis. Bradley's counsel replied: "We would stipulate the facts alleged in the complaint affidavit in the court file would provide a prima facie case for each charge pled to." The charging affidavit states that Bradley pulled the trigger of the handgun twice but it misfired. On the third trigger pull, Bradley shot the victim in the lower abdomen. Therefore, when Bradley entered his plea he stipulated to the fact that he discharged a firearm during the commission of the robbery.
Bradley's explicit plea to the discharge of a firearm constituted an express waiver of the defect in the charging information. Bradley stipulated to the facts alleged in the charging affidavit, and Bradley's voluntary agreement to the plea was predicated upon a sentence that incorporated discharge of the firearm during the offense. Due process was not violated because Bradley voluntarily pled nolo contendere to the robbery charge in order to receive a twenty-year mandatory minimum sentence to avoid a life term, and he stipulated to the factual basis for the sentence. Therefore, Bradley's plea agreement and the ensuing factual stipulation reflects that he understood the nature and consequences of his plea, negating any notion that he was misled or prejudiced. Thus, contrary to the language from Jackson and Mobley, a defendant's plea may constitute an express waiver of a defective charging document when he stipulates to facts which include any missing element and voluntarily pleads to a sentence that incorporates the missing element.
*1172 CONCLUSION
We therefore approve the result reached by the Fifth District in Bradley to the extent it is consistent with this opinion. We disapprove Jackson and Mobley to the extent they are inconsistent with this opinion.
It is so ordered.
WELLS, PARIENTE, LEWIS, and CANADY, JJ., concur.
POLSTON and LABARGA, JJ., did not participate. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597940/ | 3 So. 3d 1278 (2009)
James MITCHELL, Appellant,
v.
XO COMMUNICATIONS and Wausau/Liberty Mutual Insurance Co. and St. Paul/Travelers Insurance Co., Appellees.
No. 1D08-1153.
District Court of Appeal of Florida, First District.
March 10, 2009.
*1279 Laurie T. Miles of Smith, Feddeler, Smith & Miles, Lakeland, and Wendy S. Loquasto and Susan W. Fox of Fox & Loquasto, P.A., Tallahassee, for Appellant.
Tara Sa'id of Law Offices of Amy L. Warpinski, Jacksonville for Appellee Liberty Mutual Ins. Co.; and Jennifer S. Haley-Gleason of Harbsmeier Dezayas, LLP, Tallahassee, for Appellee St. Paul/Travelers Ins. Co.
PER CURIAM.
James Mitchell, Claimant, appeals an order of the Judge of Compensation Claims (JCC) denying his claims for permanent total and permanent supplemental (PTD) benefits. This is the second time this Claimant has appealed this JCC's denial of PTD benefits. See Mitchell v. XO Commc'ns, 966 So. 2d 489 (Fla. 1st DCA 2007) (Mitchell I). In Mitchell I, we reversed and remanded for additional proceedings because the "JCC's final order [was] inconsistent in its findings of fact and conclusions of law...." Id. at 490. Because the JCC's order issued after remand contains many of the same internal inconsistencies, we again reverse and remand for further proceedings.
In Mitchell I, we remanded the JCC's ultimate denial of PTD benefits based on the inconsistent nature of the order. In our opinion, we provided examples of the inconsistencies, as follows:
Here, the JCC made numerous findings of fact from the physicians' testimony. For instance, the JCC found Dr. Gonzalez testified Claimant had a 14% psychological PIR, all of which was attributable to the workplace accident. The JCC accepted R. Gonzalez' testimony and PIR. However, in her conclusions of law, she stated that "at least a portion" of Dr. Gonzalez' rating was attributable to complaints other than Claimant's workplace accident. Additionally, the JCC found Dr. Fiore opined Claimant had an 8% PIR for his right knee injury attributable to the workplace accident, and Claimant was not capable of doing *1280 even sedentary work. The JCC then stated she believed Dr. Fiore's conclusion was based on the erroneous assumption that Claimant's unrelated neurological injuries were related to his workplace accident.
Id. (emphasis in original). In remanding the matter for additional proceedings, we instructed the JCC to clarify the inconsistencies between her findings of fact and conclusions of law. On remand, the JCC took no additional evidence and reissued a similar 36-page order denying PTD benefits based on additional and modified findings.
With respect to the findings regarding Claimant's orthopedic condition relating to the right knee, the JCC followed our instructions to clarify whether she was rejecting or misinterpreting Dr. Fiore's opinion regarding work capacity. On remand, the JCC expressly accepted Dr. Fiore's opinion regarding the permanent impairment rating (PIR) attributable to Claimant's right knee injury (8% PIR) and expressly rejected his opinion as to physical limitations (no work status). Because the JCC's finding that Claimant's right knee injury restricts him to a sedentary capacity is supported by competent substantial evidence in the record, we affirm as to Claimant's physical limitations.
With respect to the findings regarding Claimant's psychiatric condition, the JCC committed the same essential errors as in Mitchell I. Specifically, in the order now before us, the JCC found as a result of the October 4, 2001 workplace accident that Claimant suffered a compensable aggravation of his preexisting depression and anxiety, that Dr. Gonzalez' treatment was reasonable and medically necessary, and that the employer/carrier for the October 4, 2001 accident was financially responsible for the aggravation. The JCC also found that Dr. Gonzalez assigned a 14% PIR attributable solely to the aggravation of Claimant's preexisting psychiatric condition. Although the JCC found that Claimant had a psychiatric impairment caused by the October 4, 2001 workplace accident, much as in the Mitchell I order, the JCC questioned whether Dr. Gonzalez intended the 14% PIR to apply only to the aggravation of the preexisting condition or whether this rating included the underlying chronic depression and anxiety. As a result, the JCC, although finding a permanent psychiatric impairment as a result of the October 4, 2001 workplace accident, failed to assign a numerical value to this impairment due to this alleged lack of clarity as to that portion of the impairment which Dr. Gonzalez had testified applied to the preexisting condition.[1] In effect, the JCC assigned a 0% PIR due to this alleged lack of clarity.
A brief review of the record, however, reflects that Dr. Gonzalez' testimony is anything but unclear as to whether the 14% PIR was attributable to the workplace accident:
Q. And, Doctor, you've mentioned that Mr. Mitchell previously suffered from depression. Is any portion of that fourteen percent impairment rating due to any pre-existing condition?
A: No, no. If you wereif you are going to go that route, then you would have to say that he has twenty percent... So, the fourteen percent I'm talking about is according to the 10/4/2001 accident.
Further confusing matters, the JCC found that the compensable aggravation of the preexisting psychological conditions *1281 was "temporary." We can find no medical testimony in the record that supports a temporary duration of this aggravation and such a finding is at direct odds with the JCC's finding that Claimant suffered a permanent psychiatric impairment as a result of the October 4, 2001 workplace accident.
With respect to Claimant's psychiatric condition, the JCC's findings in the Mitchell I order and again in the order on remand are so conflicting and inconsistent as to make meaningful appellate review impossible. See Allen v. Protel, Inc., 852 So. 2d 916, 919-20 (Fla. 1st DCA 2003). Although it is rare that an appellate court is required to remand the same issue to the same judge for a second time, we decline Claimant's invitation to make the findings of fact necessary to find that Claimant is PTD. Such findings are clearly the JCC's role.
On remand, we instruct the JCC to hold those proceedings necessary to clarify whether Clamant suffered a permanent psychiatric impairment as a result of his workplace accidents (in combination or individually). After making this finding, we direct the JCC to hold those proceedings necessary to consider the claim for PTD in light of the sedentary physical restrictions and psychiatric restrictions, if any, attributable to Claimant's workplace accidents. We direct the JCC to enter a new, internally consistent order containing her ultimate findings of fact and conclusions of law.
AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.
ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.
NOTES
[1] This inquiry is more appropriate for issues of apportionment, upon which Claimant does not carry the burden and which were not before the JCC. See § 440.15(5)(b), Fla. Stat. (2000); see also Holiday Inn v. Sallee, 496 So. 2d 227 (Fla. 1st DCA 1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597954/ | 3 So. 3d 1255 (2009)
LONDON
v.
STATE.
No. 2D07-2630.
District Court of Appeal of Florida, Second District.
February 20, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1597958/ | 3 So. 3d 54 (2008)
STATE of Louisiana
v.
Joseph FALL.
No. 08-CA-295.
Court of Appeal of Louisiana, Fifth Circuit.
December 16, 2008.
Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Desiree M. Valenti, David Abdullah, Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellant.
Kenneth J. Beck, Attorney at Law, Gretna, LA, for Defendant/Appellee.
Panel composed of Judges SUSAN M. CHEHARDY, CLARENCE E. McMANUS, and WALTER J. ROTHSCHILD.
*55 CLARENCE E. McMANUS, Judge.
STATEMENT OF THE CASE
Joseph Fall was arrested for possession of marijuana on April 13, 2006. On May 23, 2006, Fall was released from jail on a bond posted by agents of Financial Casualty & Surety, Inc. He was ordered to appear at an arraignment on May 30, 2006. The bond listed 308 Monzingo Richey Road in Waynesboro, Mississippi as his address.
The arraignment was reset for July 12, 2006 and subpoenas were issued to Fall and A-1 Unlimited, the bond agent. A-1 Unlimited received personal service of the subpoena on June 2, 2006. The subpoena for Fall came back without a return.
The arraignment was held on July 12, 2006. Fall did not appear. The State then moved for a bond forfeiture of the bond due to defendant's failure to appear. Therefore, on July 12, 2006, trial court ordered that the bonds, in the aggregate amount of $17,750.00, be forfeited and entered judgment against A-1 Unlimited and Financial Casualty & Surety, Inc., the surety. Certificates of Mailing Judgment of Bond Forfeiture indicate that notice of the judgment were mailed to Fall, A-l Unlimited, Financial Casualty & Surety and the District Attorney on August 9, 2006. The trial court record contains delivery confirmations from the United Postal Service indicating that A-l Unlimited received the notice on August 10, 2006 and Financial Casualty received notice on August 14, 2006.
Financial Casualty & Surety, Inc. filed a Motion to Set Aside Judgment of Bond Forfeiture and Petition for Nullity of Judgment on September 24, 2007. Financial Casualty argued it was entitled to an absolute nonenforceable nullity because there was no proof in the record that Fall was served with notice of the court date for which the bond forfeitures were granted, instead, the subpoena shows no return from the sheriff. Further, Financial Casualty argued there was no proof in the record that the surety was served with notice of the court date for which the bond forfeitures were granted.
The trial court held a hearing on December 6, 2007 on the motion and on that same date granted the judgment in favor of Financial Casualty declaring the bond forfeitures rendered on July 12, 2006 in the aggregate amount of $17,750.00 be vacated, set aside, rescinded and declared to be an absolute nullity. The trial court also ordered that Financial Casualty be relieved of all further obligations under the original bonds. The State filed a Notice of Appeal on December 12, 2007. For the reasons set forth below, we affirm the trial court's judgment.
DISCUSSION
In its Motion to Set Aside the Judgment of Bond Forfeiture and Petition for Nullity of Judgment, Financial Casualty argued there was no proof in the record that the defendant had been served with notice of the court date, therefore, the judgment of bond forfeiture was an absolute nullity. On appeal, the State asserts one assignment of error that the trial court erred in granting the Motion to Set Aside the Judgment of Bond Forfeiture and Petition for Nullity of Judgment because it was untimely.
The State must strictly comply with the provisions of the statute regulating bond forfeiture before a judgment of forfeiture can be entered. State v. Cook, 616 So. 2d 272, (La.App. 2 Cir.1993), citing State v. Hathaway, 403 So. 2d 737 (La. 1981). LSA-R.S. 15:85 sets forth the procedure used for the forfeiture of bonds. The statute states, in pertinent part:
*56 All bonds taken to secure the appearance of any person before any court executed in the state of Louisiana shall be forfeited and collected as follows:
(l)Failure to appear and answer. If at the time fixed for appearance the defendant fails to appear and answer when called, the judge, on motion of the prosecuting attorney, upon hearing of proper evidence including: the bail contract; the power of attorney, if any; and the notice to the defendant and the surety as required by Article 344 of the Code of Criminal Procedure, shall immediately and forthwith issue a warrant for the arrest of the person failing to appear and order a judgment decreeing the forfeiture of the bond and against the defendant and his sureties in solido for the full amount of the bond.
. . .
(5) Summary proceedings. The defendant and his sureties shall be entitled to bring defenses and actions in nullity by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within sixty days from mailing the notice of the signing of the judgment of bond forfeiture. Any summary proceeding brought by the defendant or his sureties within the sixty-day period shall be determined by the court within one hundred and eighty days of mailing the notice of the signing of the judgment of bond forfeiture. The defendant and his sureties shall be entitled to bring defenses pursuant to Code of Criminal Procedure Art. 345 and R.S. 15:87 by use of summary proceedings in the criminal matter before the trial court which issued the judgment of bond forfeiture within six months from mailing the notice of the signing of the judgment of bond forfeiture.
Notice of the appearance date to defendant, the surety, and bondsman is governed by La.C.Cr.P. art. 344, which provides, in part:
B. (1) When a bail bond does not fix the appearance date, and the presence is required of a person who has been released on bail, the defendant, or his duly appointed agent, and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety shall be given written notice of the time, date, and place the principal is required to appear.
(2) The notice may be delivered to the defendant or his duly appointed agent and the personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety by an officer designated by the court, at least two days prior to the day set for the appearance; or this notice may be mailed by United States first class mail to the defendant or his duly appointed agent and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety, at least three days prior to the day set for the appearance. The notice shall be mailed to the defendant or his duly appointed agent and his personal surety or the commercial surety or the agent or bondsman who posted the bond for the commercial surety to the address designated pursuant to Article 322.
LSA-C.C.P. art. 2002(A)(2) provides that a final judgment shall be annulled if it is rendered against a defendant who has not been served with process as required by law. Therefore, the failure to serve defendant properly with process as required by law is a vice of form on which a bond forfeiture judgment may be nullified. LSA-C.C.P. art. 2002(A)(2). State v. Cook, 616 So. 2d 272, (La.App. 2 Cir. *57 1993), citing State v. Bailey, 567 So. 2d 721 (La.App. 2 Cir.1990).
In this case, subpoenas were issued to defendant, at the address listed on his bond, and the bond agent, A-l Unlimited, giving notice of the July 12, 2006 arraignment date. The record shows that A-l Unlimited received personal service of the subpoena on June 2, 2006. However, the subpoena for the defendant came back without a return. Thus, there is no evidence in the record to indicate the defendant actually received notice of the arraignment hearing date, in accordance with La.C.Cr.P. art. 344. As a result, we find the trial court correctly found the defendant had not been served with notice of the arraignment hearing and therefore, the judgment of bond forfeiture must be annulled.
We also find the motion by Financial Casualty to be timely filed, even though the motion was filed more than sixty days after mailing of the notice of the judgment of bond forfeiture. The sixty-day period and the waiver provisions in LSA-R.S. 15:85 only apply to the assertion of a defense to the forfeiture and not to the surety's action to annul a forfeiture judgment for vices of form under LSC.C.P. art.2001. State v. Cook, supra, citing State v. Bailey, supra.
LSA-C.C.P. art. 2002(B) provides that an action to annul a judgment on the grounds listed in Article 2002(A), which includes failure to serve defendant with notice, may be brought at any time. The motion filed by Financial Casualty seeks to nullify the judgment of bond forfeiture because the defendant had not been served with notice of the court date. Therefore, this nullity action could be brought by Financial Casualty, pursuant to LSA-C.C.P. art.2002, at any time and the sixty-day period set forth in LSA-R.S. 15:85 does not apply.
Accordingly, we affirm the trial court's judgment granting the motion to set aside bond forfeiture.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
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