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https://www.courtlistener.com/api/rest/v3/opinions/1597969/ | 818 So. 2d 217 (2002)
Edward Rene SCOTT
v.
LAKEVIEW REGIONAL MEDICAL CENTER.
No. 2001 CA 0538.
Court of Appeal of Louisiana, First Circuit.
March 28, 2002.
Rehearing Denied May 22, 2002.
*219 James E. Cazalot, Jr., New Orleans, for Claimant-Appellee Edward Rene Scott.
Patrice W. Oppenheim, Metairie, for Employer-Appellant Lakeview Regional Medical Center.
Before: FOIL and PETTIGREW, JJ., and KLINE,[1] J. Pro Tem.
PETTIGREW, Judge.
This workers' compensation action is before us on appeal from a judgment in favor of claimant, Edward Rene Scott, and against his employer, Lakeview Regional Medical Center ("LRMC"). For the following reasons, we reverse.
FACTS
The parties hereto stipulated that on or about August 24, 1995, Edward Rene Scott ("Mr. Scott") was employed by LRMC when he sustained injury to his lower back while assisting other employees lift a patient in the shower. The parties also stipulated that Mr. Scott's average weekly wage prior to his accident was $300.52, which assuming Mr. Scott was totally disabled, gave rise to a weekly compensation rate of $200.36.
There is no dispute LRMC paid Mr. Scott benefits at the rate of $200.36 per month from the beginning of his disability until January 10, 1999. It was further stipulated that as a result of his workplace accident on August 24, 1995, Mr. Scott subsequently underwent two lumbar surgeries that were performed by his treating neurosurgeon, Dr. John Jackson. Mr. Scott underwent removal of an acutely ruptured disc at the L5-S1 disc level and decompression of the S1 nerve root on February 2, 1996. Shortly over a year later, on February 27, 1997, it was necessary to remove the recurrent ruptured disc at L5-S1 and stabilize the spine with a posterior lumbar interbody fusion. It is also undisputed that Mr. Scott reached maximum medical improvement (MMI) regarding his back condition on or about June 11, 1998.
Since October 14, 1998, until the present time, Mr. Scott has been incarcerated as a result of his conviction for possession with intent to distribute 2.5 grams of cocaine. Accordingly, Mr. Scott's benefits were suspended until he established that he had minor children who were dependent upon his benefits for their support.
Following a trial held on October 12, 2000, the workers' compensation judge concluded that Mr. Scott's two dependent children were entitled to receive his Supplemental Earnings Benefit (SEB) payments at the rate of $200.36 per week (or $801.44 a month) from January 10, 1999, when LRMC terminated his benefits, until Mr. Scott received "proper" vocational *220 rehabilitation. From this judgment, LRMC has taken a suspensive appeal.
ASSIGNMENTS OF ERROR
In connection with its appeal in this matter, LRMC sets forth the following assignments of error for review by this court:
1. The Louisiana Department of Labor, Office of Workers' Compensation [OWC] Judge committed legal and manifest error in finding the Claimant proved he was entitled to Supplemental Earnings Benefits because he was unable to earn ninety percent (90%) of his pre-injury wages.
2. The OWC Judge committed legal and manifest error in finding LRMC had not provided adequate vocational rehabilitation counseling to the Claimant during his incarceration.
3. The OWC Judge committed legal and manifest error in finding the Claimant proved he had minor children who were dependent upon his workers' compensation benefits for their support and were therefore entitled to his benefits during his incarceration.
4. The OWC Judge committed legal and manifest error in finding the Claimant had a heart-related injury, which disabled him from working and entitled him to an award of medical expenses.
STANDARD OF REVIEW
Factual findings in a workers' compensation case are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840, p. 7 (La.7/1/97), 696 So. 2d 551, 556. As an appellate court, we cannot set aside the factual findings of the workers' compensation judge unless we determine that there is no reasonable factual basis for the findings and the findings are clearly wrong (manifestly erroneous). Stobart v. State, Department of Transportation and Development, 617 So. 2d 880, 882 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder's decision to credit a witness's testimony must be given "great deference" by the appellate court. Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989). Thus, when there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, although the appellate court may feel that its own evaluations and inferences are as reasonable. Id.
DISCUSSION
Award of SEBs
The initial error assigned by LRMC is that the workers' compensation judge erred in finding that Mr. Scott proved he was entitled to SEBs because he was unable to earn 90 percent of his preinjury wages. LRMC points out in its brief that the workers' compensation judge awarded Mr. Scott SEBs at his full rate of compensation, $200.36 per week.
In Banks v. Industrial Roofing & Sheet Metal Works, Inc., supra, the Louisiana Supreme Court opined:
The purpose of SEBs is to compensate the injured employee for the wage earning capacity he has lost as a result of his accident. An employee is entitled to receive supplemental earnings benefits (SEBs) if he sustains a work-related injury that results in his inability to earn ninety percent (90%) or more of his average pre-injury wage. Initially, the *221 employee bears the burden of proving, by a preponderance of the evidence, that the injury resulted in his inability to earn that amount under the facts and circumstances of the individual case....
Once the employee's burden is met, the burden shifts to the employer who, in order to defeat the employee's claim for SEBs or establish the employee's earning capacity, must prove, by a preponderance of the evidence, that the employee is physically able to perform a certain job and that the job was offered to the employee or that the job was available to the employee in his or the employer's community or reasonable geographic region. Actual job placement is not required. The amount of SEBs is based upon the difference between the claimant's pre-injury average monthly wage and the claimant's proven post-injury monthly earning capacity.
Banks, 96-1587 at 8-9, 696 So.2d at 556 (quotation marks and citations omitted).
A copy of the medical records of Dr. John Jackson was introduced as Joint Exhibit 3. In an office note dated June 11, 1998, Dr. Jackson noted that Mr. Scott was progressing well and had been walking two miles a day at a local health club. Despite complaints of being disabled due to a narrowing of the anterior heart ventricle, Dr. Jackson opined that Mr. Scott had reached MMI on that date. Dr. Jackson assigned Mr. Scott a 25 percent permanent partial disability of the body as a whole, and restricted him from straining his back or lifting in excess of 25 pounds. In an office note dated September 24, 1998, Dr. Jackson noted that while some slight motion may have been present, Mr. Scott's spine remained fused, and Dr. Jackson discounted the possibility of further medical treatment. Dr. Jackson further noted that in light of Mr. Scott's heart condition, he was restricted from straining his back or performing repeated bending or lifting. Due to Mr. Scott's two prior surgeries, Dr. Jackson assigned a 35 percent permanent partial disability of the body as a whole, and restricted Mr. Scott from lifting in excess of 25 pounds. In a letter to the St. Tammany Parish Prison dated October 29, 1998, Dr. Jackson reiterated his earlier restrictions on Mr. Scott's activities, but reduced Mr. Scott's percentage of disability to 25 percent of the body as a whole.
A copy of the deposition of Dr. Alan R. Perego, a board-certified internist and medical director at Dixon Correctional Institute, was introduced as Joint Exhibit 6. In connection with his deposition testimony, Dr. Perego stated that Mr. Scott had not made a complaint relative to his back since July 1999. He was assigned to regular duty status with a bottom bunk and restrictions of no prolonged walking or lifting of greater than 15 pounds.
Dr. Perego also stated that Mr. Scott had filed a civil suit against the St. Tammany Parish Sheriff in federal court. In connection therewith, Mr. Scott was evaluated by a contract orthopedist, Dr. Brad Edwards, at Louisiana State Penitentiary at Angola, Louisiana, on June 5, 2000. According to Dr. Perego, Dr. Edwards suggested Mr. Scott perform stretching exercises, but "[d]idn't recommend any restrictions whatsoever." When presented with the earlier restrictions placed upon Mr. Scott by Dr. Jackson and in view of the recommendations of Dr. Edwards, Dr. Perego testified that he "certainly would have no problem in having [Mr. Scott] perform duties at that level."
Nevertheless, Mr. Scott testified that he is a "disabled inmate" and suffers from intermittent pain and numbness that he contends render him incapable of holding a 40-hour per week job. Although a court may consider a claimant's uncorroborated testimony of subjective pain, if *222 credible, concerning what his physical limitations might be as a result of pain, the decision of the court should not be based on claimant's self-serving testimony on the ultimate issue of whether the claimant is able to work. Duhon v. Holi Temporary Services, Inc., 97-0604, pp. 6-7 (La.App. 4 Cir. 10/1/97), 700 So. 2d 1152, 1155.
Even if this court were to assume arguendo that Mr. Scott met his burden of proving, by a preponderance of the evidence, that he is unable to earn 90 percent of his pre-injury wage, the burden then shifted to LRMC. In order to defeat the claim for SEBs or establish Mr. Scott's earning capacity, LRMC had to prove, by a preponderance of the evidence, that Mr. Scott was physically able to perform a certain job and that the job was offered to Mr. Scott or that the job was available to Mr. Scott in his or LRMC's community or reasonable geographical region. Actual job placement was not required.
The trial transcript reveals that LRMC offered the testimony of Ms. Shelley Brantley, an employee of a private rehabilitation firm, who testified that Mr. Scott's previous work history revealed several marketable skills, which upon his release from prison, could be transferred to a job that would not require lifting of more than 25 pounds. Ms. Brantley testified that, in her opinion, Mr. Scott was well-spoken, very presentable and expressed himself very well. She also noted that Mr. Scott was able to sit for about 1½ hours without any apparent discomfort.
Ms. Brantley performed a labor market survey several weeks before trial wherein she identified actual full-time jobs that Mr. Scott would have been qualified to apply for if he were not incarcerated. Ms. Brantley stated that these jobs were all located within 35 miles of Mr. Scott's residence in Mandeville, Louisiana, and ranged in salary from $232.00 to $501.00 per week. Said jobs would also fit within the restrictions assigned by Mr. Scott's physicians and his transferable skills. On-the-job training was also provided. The specific jobs identified by Ms. Brantley involved primarily clerical duties and included front desk clerk at a hotel, gas station cashier, loan/credit clerk at three different finance companies, general office clerk at a pest control company, and a customer service representative at a car rental agency. Ms. Brantley also reviewed the Louisiana Department of Labor Occupational Employment Wage Survey and determined that similar jobs have historically been available.
Counsel for Mr. Scott moved to strike testimony as to positions historically available arguing that the statute required that Mr. Scott be notified of an actual job within his capabilities, wage requirements, and geographic region.
A similar factual scenario was presented in Turner v. Sunbelt Manufacturing, 32-691, 32-692 (La.App. 2 Cir. 6/14/00), 763 So. 2d 770, a case cited and relied upon by Mr. Scott. In Turner, the employer argued that the statutory requirement mandating that an employer establish that a suitable job existed in the reasonable geographic region was not applicable to an incarcerated claimant who would be unable to accept any available position. The workers' compensation judge agreed and determined that claimant's incarceration imposed an "impossible task" upon the employer to prove availability of employment. Turner, 32-691, 32-692 at 6, 763 So.2d at 776. On appeal, the second circuit disagreed and reversed relying on Banks for the proposition that the employer's burden of proving the existence of a suitable job within the claimant's physical capabilities is not contingent upon the claimant's cooperation and participation, and actual job placement was not required. *223 The court held that "the claimant's unavailability does not relieve [his employer] of its statutory responsibility. [Claimant's employer] failed to produce evidence to establish the existence of a suitable job within claimant's physical capabilities." Turner, 32-691, 32-692 at 7, 763 So.2d at 776.
We respectfully decline to apply this approach to the facts of this case. In Banks, the Louisiana Supreme Court attempted to resolve the inconsistent standards of the state courts of appeal with regard to whether an employer has satisfied its burden of proving "job availability" pursuant to La. R.S. 23:1221(3)(c)(i). The supreme court in Banks concluded that:
[A]n employer may discharge its burden of proving job availability by establishing, at a minimum, the following, by competent evidence:
(1) the existence of a suitable job within claimant's physical capabilities and within claimant's or the employer's community or reasonable geographic region;
(2) the amount of wages that an employee with claimant's experience and training can be expected to earn in that job; and
(3) an actual position available for that particular job at the time that the claimant received notification of the job's existence.
By "suitable job," we mean a job that claimant is not only physically capable of performing, but one that also falls within the limits of claimant's age, experience, and education, unless, of course, the employer or potential employer is willing to provide any additional necessary training or education.
Banks, 96-1587 at 11-12, 696 So.2d at 557 (footnote omitted).
In the instant case, there was credible testimony in the record to the effect that suitable employment was available to Mr. Scott several weeks prior to trial. Although Mr. Scott did not receive notification prior to trial of the existence of said jobs, there were indications in the record to the effect that Mr. Scott would be incarcerated for at least several more years. In our opinion, to mandate that an employer provide an incarcerated claimant with notification of an actual job suitable to claimant's individual requirements and capabilities would be a vain and useless act.
We conclude that Mr. Scott failed to prove by a preponderance that he was disabled from working and unable to earn 90 percent of his pre-injury wages. It is also the conclusion of this court that LRMC established by a preponderance of the evidence that there were suitable jobs available to Mr. Scott within his restrictions, capabilities, and reasonable geographical region. Thus, an award of SEBs was not warranted.
Vocational Rehabilitation
The second error assigned by LRMC is that the workers' compensation judge was clearly wrong in finding LRMC had not provided adequate vocational rehabilitation counseling to Mr. Scott during his incarceration. In his written reasons for judgment, the workers' compensation judge determined:
Vocational Rehabilitation Councilor [sic] testified for [LRMC]. The court finds the Vocational Rehabilitation was inadequate and cannot be used as a basis for Supplemental Earnings Benefits. No job was ever offered to [Mr. Scott] as acknowledged by the Vocational Consultant.
Subsection A of La. R.S. 23:1226 clearly states that rehabilitation services are warranted when the injury suffered by the employee "precludes the employee from earning wages equal to wages earned prior to the injury[.]" (Emphasis added). Noveh *224 v. Broadway, Inc., 95-2081, pp. 4-5 (La.App. 1 Cir. 5/10/96), 673 So. 2d 349, 352, writ denied, 96-1431 (La.9/13/96), 679 So. 2d 109.
We have heretofore determined that there were various vocational alternatives available to Mr. Scott that suited his medical restrictions and his marketable skills and abilities. Mr. Scott's incarceration precluded him from applying for such jobs, thus we cannot say definitively that Mr. Scott was unable to earn wages equal to wages earned prior to his injury. Thus, LRMC cannot be condemned to provide vocational rehabilitation services to Mr. Scott in prison until such time as he is released and eligible to apply for employment. The workers' compensation judge erred in determining that Mr. Scott was entitled to vocational rehabilitation.
Dependent Children's Right to Receive Benefits
The third error assigned by LRMC is that the workers' compensation judge erred in determining that Mr. Scott proved he had minor children who were dependent upon his workers' compensation benefits for their support and were therefore entitled to said benefits during Mr. Scott's incarceration. In written reasons for judgment, the workers' compensation judge found that Mr. Scott "had dependents that were dependent upon him. [Mr. Scott's] wife testified that [Mr. Scott's] money was used for the children and household support."
Louisiana Revised Statutes 23:1201.4 provides in pertinent part:
The employee's right to compensation benefits, including medical expenses, is forfeited during any period of incarceration, unless a workers' compensation judge finds that an employee has dependents who rely on a compensation award for their support, in which case said compensation shall be made payable and transmitted to the legal guardian of the minor dependent or other person designated by the workers' compensation judge and such payments shall be considered as having been made to the employee. [Emphasis added]
The record reflects that at the time of trial, Mr. Scott had two minor children: a fifteen-year-old daughter, Latoya Scott, and a five-year-old son, Edward Scott, Jr. Mr. Scott also had a twenty-one-year-old daughter, Latysha Scott, who "stayed there occasionally off and on" with her four-year-old daughter, Torrion Scott. The parties to this matter stipulated that Mr. Scott was incarcerated at the time of trial and had been incarcerated since October 14, 1998.
It was further stipulated by the parties that until January 10, 1999, Mr. Scott's compensation checks were mailed to 2542 America Street, Mandeville, Louisiana, a residence Mr. Scott shared with his wife and children. Accordingly, Mr. Scott's compensation checks continued to be sent to this address even after he became incarcerated on October 14, 1998. At the hearing held on October 12, 2000, Mr. Scott's wife, Cheryl Scott, testified that sometimes her husband would give her his workers' compensation check, but if she had enough money from her paycheck to pay the bills, Mr. Scott would buy food or give money to the kids. Cheryl Scott estimated that following her husband's accident in 1995, she earned $25,000.00 as the director of the Covington Housing Authority, and Mr. Scott received approximately $400.00 in disability benefits every two weeks. Cheryl Scott also stated that if she ran short of money, she and Mr. Scott would use some of his benefits check to pay the household bills. Cheryl Scott was unable to say exactly how much of Mr. Scott's check was used to pay household expenses.
*225 Cheryl Scott admitted that following his accident, Mr. Scott developed a problem with crack cocaine, but claimed that she did not know what income Mr. Scott used to support his cocaine addiction. Cheryl Scott did concede that aside from his workers' compensation benefits, Mr. Scott had no other source of income. After Mr. Scott's benefits were terminated in January of 1999, Cheryl Scott stated that if she was short of money, her mother would help her pay the bills.
In connection with his testimony, Mr. Scott stated that his wife usually paid the bills, but added he would give his wife "the majority" of his benefits check. Mr. Scott admitted that he had previously undergone rehabilitation treatment for a cocaine problem, but claimed that he had not used cocaine since 1990.
Mr. Scott claimed that following his accident at LRMC, he started using cocaine "[m]aybe once or twice a month." While Mr. Scott distinctly recalled telling the officers who arrested him that he was using cocaine, he could not specifically recall whether he told the officer that he had a $600.00-a-day cocaine habit. When confronted with his testimony to this effect from his earlier criminal trial, Mr. Scott exercised his Fifth Amendment rights against self-incrimination on the grounds that his conviction was currently awaiting review on appeal.
Mr. Scott argues in his brief to this court that once minor children have been found to be dependent upon a claimant who is incarcerated, said children are entitled to the full amount of the workers' compensation benefits owed to the claimant. In support of this contention, Mr. Scott cites Jowers v. Liberty Construction Company, 32-068 (La.App. 2 Cir. 6/16/99), 740 So. 2d 735 and Turner v. Sunbelt Manufacturing, supra.
In Jowers the second circuit tied an award of compensation benefits to an incarcerated claimant's minor dependents to a determination of dependency by the court. A dependency determination was not made in Jowers; however, it was stipulated by the defendants that the incarcerated claimant's minor child was entitled to receive the full amount of his benefits, and the issue before the court was designation of the proper payee. Jowers, 32-068 at 5, 740 So.2d at 738. A similar result was reached by the third circuit in Mouton v. G & B Building Specialists, 99-117, p. 3 (La.App. 3 Cir. 6/2/99), 741 So. 2d 741, 743, which interpreted La. R.S. 23:1201.4 as requiring a finding that the dependents relied upon the claimant's compensation award for their support.
In Turner, the second circuit purportedly adopted the same approach previously utilized by it in Jowers, but in Turner, the court reversed the workers' compensation judge's finding and held that once a dependency determination is made, the full amount of an incarcerated claimant's compensation benefits is owed to his minor dependent. Turner, 32-691, 32-692 at 8, 763 So.2d at 777.
Turning now to the case presently before us, we note that this assignment of error is moot in view of our earlier determination that Mr. Scott failed to prove by a preponderance that he was disabled from working and entitled to receive benefits. Nevertheless, we conclude that the evidence contained in the record is sufficient to support the workers' compensation judge's finding that Mr. Scott's minor children, Latoya Scott and Edward Scott, Jr., were dependents of Mr. Scott and relied upon his compensation checks for their support. Accordingly, Mr. Scott's minor dependents would be entitled to the full amount of his benefit checks had Mr. Scott established his disability.
*226 Evidence Regarding Mr. Scott's "Heart Condition"
The fourth and final error assigned by LRMC is that the workers' compensation judge erred in finding that Mr. Scott had a heart-related injury that disabled him from working and entitled him to an award of medical expenses. In written reasons for judgment, the workers' compensation judge stated that Mr. Scott had "developed a heart condition" from the two lumbar operations performed upon him by Dr. John Jackson.
Based upon this court's review of the record in this matter, we find that the evidence does not support the conclusion that Mr. Scott's heart complaints were the result of his surgeries, but were more properly attributable to other causes. However, once again we note that this assignment of error is moot in view of our earlier determination that Mr. Scott failed to prove by a preponderance that he was disabled from working and entitled to receive benefits.
CONCLUSION
For the above and forgoing reasons, we conclude that the workers' compensation judge was clearly wrong in determining that Mr. Scott was incapable of earning at least 90 percent of his pre-injury wages. Accordingly, it is the conclusion of this court that Mr. Scott is not entitled to benefits, and therefore, his dependent minor children are not entitled to benefits. Further, we find that due to his incarceration, Mr. Scott is not entitled to vocational rehabilitation. All costs associated with this appeal shall be assessed against claimant, Edward Rene Scott.
REVERSED AND RENDERED.
NOTES
[1] Judge William F. Kline, Jr., retired, 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/1597957/ | 818 So. 2d 1042 (2002)
Sherri BLAIR
v.
WAL-MART STORES, INC.
No. 2001-CA-2211.
Court of Appeal of Louisiana, Fourth Circuit.
May 15, 2002.
Rehearing Denied June 28, 2002.
*1043 Joseph F. LaHatte, Jr., Roderick Alvendia, Ernest J. Bauer, Jr., Kevin M. Steel, Law Office of Joseph F. LaHatte, Jr., New Orleans, LA, for Plaintiff/Appellee.
*1044 Charles Martin Kreamer, Sr., Allen & Gooch, Lafayette, LA, for Defendant/Appellant.
(Court composed of Judge JOAN BERNARD ARMSTRONG, Judge and PATRICIA RIVET MURRAY, Judge MAX N. TOBIAS, Jr.).
MURRAY, Judge.
This is a workers' compensation case. From a judgment in favor of the plaintiff, Sherri Blair, awarding temporary total disability (TTD) benefits from September 5, 1999 forward and unpaid medical expenses, the defendant, Wal-Mart Stores, Inc., appeals. We affirm the trial court's finding that Ms. Blair established a work-related accident, but we limit the award of TTD benefits to a two-month period, reverse the award of medical expenses, and remand to consider plaintiff's entitlement to supplemental earnings benefits (SEB).
FACTUAL AND PROCEDURAL BACKGROUND
On September 4, 1999, Ms. Blair, a thirty-eight year old stock clerk/sales associate for Wal-Mart, allegedly injured her back lifting a cardboard box. At the time, Ms. Blair was engaged in "zoning", i.e., the routine restocking and straightening up of shelves, pulling merchandise forward and upkeep of a particular section of the store. As she was bending over to pick up a box, Ms. Blair felt a pull in her back. At first it was not that strong, but when she tried to continue working she felt her back tighten. Ms. Blair therefore went to her supervisor, Norris Chaisson, Jr., and obtained his permission to take a break. When she sat down to take a break, however, the pain increased. She returned to Mr. Chaisson and obtained his permission to go home.
Although the parties dispute what Ms. Blair told Mr. Chaisson, it is undisputed that he asked her at least twice, if not three times, if she wanted to complete an accident report and that she declined all his requests. Explaining her reason for declining, she testified that she believed if she went home and soaked she would be able to return the next day; she stated: "I was thinking I would be back tomorrow. I wasn't thinking it would be so severe that I wouldn't be able to move the next day; so I clocked out and I had a friend pick me up." The next morning, Ms. Blair testified, she could not move because the pain was so severe. She had her children call an ambulance to take her to the hospital. When she presented at the emergency room, she complained of "low back pain secondary to lifting heavy boxes at work" and gave a history of having "a similar episode in the past" for which she was treated and having "good relief until yesterday when she lifted boxes."
Ms. Blair testified that her two treating physicians were Dr. Kenneth Wiley and Dr. Roy Marrero. Dr. Wiley treated her during her six-day stay in the hospital. On September 11, 1999, he discharged her from the hospital with the following final diagnoses: (1) lumbar degenerative disc disease, (2) bilateral sacroiliitis, (3) herniated discs at L4-5 and L5-S1, and (4) urinary tract infection.
On September 21, 1999, Dr. Marrero certified that Ms. Blair was unable to return to work for an undetermined period of time and that she was disabled. Dr. Marrero also referred her to a back specialist at LSU Orthopedics. However, Ms. Blair testified that she was turned away when she went for her appointment because that specialist did not accept Medicaid. Thereafter, Ms. Blair saw Dr. Wiley several times, and he prescribed various pain medications.
As of the time of her deposition, July 2000, Ms. Blair testified that she was still *1045 taking prescription pain medication. As of the time of trial, June 2001, however, she testified that her Medicaid insurance had lapsed, that she was not seeing any physician, and that she takes over the counter medicine, like Tylenol, for her pain. She further testified that Medicaid paid all of her past medical expenses.
At least once during her hospital stay, Ms. Blair spoke with Melanie Falgout, Wal-Mart's personnel manager, regarding her inability to return to work. She testified that she told Ms. Falgout that she injured her back at work. Ms. Blair also had her mother, Yvonne Borden, call her supervisor, Mr. Chaisson, while she was in the hospital. Ms. Borden testified that she told Mr. Chaisson that her daughter was in the hospital because something had happened the day before on the job and that she was brought to the hospital because she was unable to move. Ms. Borden testified that Mr. Chaisson never mentioned anything to her about filling out an accident report.
Although Mr. Chaisson admitted on cross-examination that Ms. Borden called him, he denied that she told him Ms. Blair was injured at work. Instead, he testified that Ms.Borden merely told him that Ms. Blair would not be in and that he was unsure why she was in the hospital. Asked what would have been done if Ms. Blair had told him or another member of management that she was hurt at work, Mr. Chaisson responded that the first thing they would have done would have been to complete an accident report.
Wal-Mart was first formally notified of Ms. Blair's claim of a work-related accident when they received a letter of representation from her attorney requesting payment of TTD and medical expenses. In March 2000, Ms. Blair commenced this compensation case. In her disputed claim form, she describes the "accident" as follows: "[w]hile reaching for a box of stock, claimant injured her lower back," and she represents that she reported this unwitnessed accident to her head supervisor, Mr. Chaisson, on the day it occurred. In its answer, Wal-Mart generally denies Ms. Blair's allegations and asserts the affirmative defense of forfeiture under La. R.S. 23:1208.
A trial was held in June 2001 at which three witnesses testified: Ms. Blair; her mother, Ms. Borden; and her supervisor, Mr. Chaisson. Based on the testimony and evidence introduced, the trial court found that a work-related accident and injury occurred on September 4, 1999; Ms. Blair was entitled to TTD benefits from September 5, 1999 forward in the amount of $151.04 per week and to all unpaid medical expenses; and Wal-Mart reasonably controverted the claim and thus was liable for neither penalties nor attorney's fees. From that judgment, Wal-Mart appeals.
DISCUSSION
On appeal, Wal-Mart alleges four assignments of error; particularly, it alleges the trial court erred in: (i) rejecting its affirmative defense of forfeiture under La. R.S. 23:1208 (ii) finding the claimant carried her burden of proving an accident, (iii) finding the claimant carried her burden of proving TTD, and (iv) ordering it to pay medical expenses. We separately address each of these assignments of error.
(i) Forfeiture under La. R.S. 23:1208
La. R.S. 23:1208 is an anti-fraud provision that applies to any false statements or misrepresentation, including one concerning a prior injury, made specifically for the purpose of obtaining workers' compensation benefits. Resweber v. Haroil Constr. Co., 94-2708, 94-3138, p. 1 (La.9/5/95), 660 So. 2d 7, 9. Ms. Blair's alleged misrepresentations *1046 on which Wal-Mart relies, are the following:
(1) Denying in her deposition telling Mr. Chaisson that her back was not hurting from lifting at work but rather was from her back problems that preexisted her employment, and further that she was used to her back going out. In fact she told Norris this at the time of the alleged accident.
(2) Claiming in her deposition that she told a Wal-Mart manager named Melanie that she was not coming back to work because she hurt herself at work (allegedly making this call from the hospital). In fact she only told Melanie that she would no longer be working for medical reasons, but gave no specifics.
(3) Claiming in her deposition that she advised Norris, her manager, that she hurt her back from lifting at work on the day of the accident. In fact, she told him that her back was not hurting from the lifting, but was always hurting before working at Wal-Mart.
Implicitly rejecting Wal-Mart's § 1208 defense, the trial court characterized Ms. Blair as "a credible witness on all issues relevant to this workers' compensation claim." This claim presents a classic credibility call. Although Ms. Blair and Mr. Chaisson testified consistently at trial that she was engaged in zoning when her back began to hurt, their testimony diverged as to what she stated regarding the reason for her back hurting. Wal-Mart's position is that she stated it was hurting because she had a pre-existing back problem. Ms. Blair's position is that she was able to work, and that she had been working for ten months, as a stock clerk/sales associate for Wal-Mart without any problems.[1]
At trial, Mr. Chaisson denied that Ms. Blair ever told him she hurt herself at work; instead, he gave the following version of the September 4, 1999 incident:
She came to me saying that her back had hurt, and she wanted to go home; so I asked her what had happened, and she told me that she was bending down to pick up a box, and her back went out on her; so at that point ... I said, "Let's go fill out an incident report"; and she said "No," her back goes out on her all the time; so I actually asked her two more times about filling out an accident report before letting her go home; and she refused both times because she stated her back goes out on her all the time.
The record also contains a written statement that Mr. Chaisson prepared, which similarly states:
On 9/4/99, Sheri Blair hurt her back, she came to me asking if she could go home. I told her we need to fill out an accident form. She told me she didn't want to fill out an accident report because she has a bad back. Her back goes out on her all the time. That is why she did not want [to] fill out an accident report. She said it wasn't because she picked up merchandise it's just that her back goes out on her.
Ms. Blair, on the other hand, gave the following version of the accident in her deposition:
[M]y duties were to take the stock out which consists of paper good items. I was dealing with maybe cases of Scott tissue, you know, different tissue products. I was to climb up a ladder, bring the stuff down the ladder, open the box, and put ityou know, keep the shelves stocked. Going up and down the ladder *1047 with boxes. Coming up and down. When I proceeded to bend down and open up the box I felt a little pulling in my back. I stoodfrom bending down, I stood back up and that's when I felt the pain maybe a little more tightening.
I still proceeded to do my work though and I was bringing back some more stock back up the ladder because I pulled down too much and when I came back down the ladder, that's when I felt it was starting to get worse. I asked a manager could I go take a break because I didn't know, you know, the seriousness of the injury.
At trial, she similarly testified:
I was unloading and putting up stock... going up the ladder, coming down.... I was working in the tissue area when it happened, getting the tissue off the riser and ... putting out the stock, setting it up; and when I bent down to pick up the box and put it back up on top of the riser, and I came down the ladder, that's when I started feeling the tightness in may back. It wasn't so strong at first, but then I tried to continue to work; but I felt my back tighten; so I asked Norris if I could take a break, like a 15-minute break; and so he told me sure ...
But when I sat down, the pain started increasing more. I went and told Norris, "Look, I need to go home. Maybe if I go soak or something ... I will be back the next day. My back is hurting."
As noted, the trial court found Ms. Blair's version credible. In a workers' compensation cases, it is well-settled that the appropriate standard of appellate review is the manifest error or clearly wrong standard. Alexander v. Pellerin Marble & Granite, 93-1698 (La.1/14/94), 630 So. 2d 706, 710. Under that standard, "[t]he trial court's determinations as to whether the worker's testimony is credible and whether the worker has discharged his or her burden of proof are factual determinations not to be disturbed on review unless clearly wrong or absent a showing of manifest error." Bruno v. Harbert Int'l, Inc., 593 So. 2d 357, 361 (La.1992). Based on the record, we cannot say the trial court was manifestly erroneous or clearly wrong in its factual finding on this issue.
(ii) Un-witnessed accident
A threshold requirement in a workers' compensation case is that a plaintiff establish "`personal injury by accident arising out of and in the course of his employment.'" Bruno, 593 So.2d at 360 (quoting La. R.S. 23:1031)(emphasis supplied). Although the workers' compensation laws are liberally construed in favor of coverage, the plaintiffs burden of proving personal injury by an accident is not relaxed and must be proven by a preponderance of the evidence. Coats v. American Tel. & Tel. Co., 95-2670, p. 4 (La.10/25/96), 681 So. 2d 1243, 1245.
A plaintiff's testimony alone may be sufficient to establish an accident provided that: "(1) no other evidence discredits or casts serious doubt upon the worker's version of the incident; and (2) the worker's testimony is corroborated by the circumstances following the alleged incident." Bruno, 593 So.2d at 361. In determining whether the Bruno elements are satisfied, the commentators have articulated six pertinent factors the courts have considered: (1) late report, (2) supervisor and co-worker testimony, (3) family and friends' testimony, (4) medical evidence, (5) continuing to work, and (6) prior injuries. See 13 H. Alston Johnson III, Workers' Compensation Law and Practice: Malone & Johnson, Louisiana Civil Law Treatise § 253 (3d ed.1994); 1 Denis Paul Juge, Louisiana Workers' Compensation, § 8:1 (2d ed.2002).
*1048 The first factor is whether the employee filed a prompt accident report, or failed to do so. It is undisputed that Ms. Blair rejected Mr. Chaisson's three requests on the day of the alleged accident to fill out an accident report. Mr. Chaisson, however, could have insisted that she do so before allowing her to leave. Regardless, the trial court in its written reasons for judgment found that "[c]laimant sustained and reported a work-related accident on September 4, 1999." As discussed above in relation to the § 1208 defense, that factual finding was not manifestly erroneous.
Second, "when the employee testifies that he told his supervisor about the accident or states that the accident was witnessed by co-workers and their trial testimony does not confirm his testimony, the court may conclude that no accident happened." Juge, supra. at § 8:1. Such is not the case here. Although Ms. Blair and Mr. Chaisson give different accounts of what she told him regarding why her back was hurting, both testified consistently that she was engaged in zoning when her back began to hurt. To the extent their testimony diverged, the trial court found in Ms. Blair's favor. Again, as discussed above in relation to the § 1208 defense, that finding was not manifestly erroneous.
Third, testimony by family and friends to the effect that the claimant related the event to them soon afterwards, in substantially the same manner that he now recounts it, is corroborative. Malone & Johnson, supra. Ms. Blair's mother, Ms. Borden, testified at trial that the next day her daughter was hospitalized due to severe back pain. She further testified that, at her daughter's request, she called Mr. Chaisson and informed him of her daughter's inability to return to work due to an injury on the job the prior day. Ms. Borden still further testified that her daughter has been unable to return to work since the accident. Ms. Borden's testimony thus corroborates Ms. Blair's testimony.
Fourth, "[o]ne of the most important factors considered by the courts is whether the early medical records support the history of a job accident." Juge, supra at § 8:1. The medical records introduced corroborate Ms. Blair's testimony that she presented on September 5, 1999 at the emergency room with complaints of severe back pain, which she related to picking up a box at work the prior day.
Fifth, whether the employee continues working after the accident is another consideration. In this case, Ms. Blair never returned to work at Wal-Mart or elsewhere after the alleged accident.
The final factor is a prior, similar injury. "The fact that an employee has previously had an injury similar to the one that is alleged to have occurred at work is generally irrelevant in a workers' compensation claim as the employer `takes his employee as he finds him.'" Juge, supra at § 8:1. This factor, however, becomes relevant "if the employee denies that he ever had such injury or denies that the prior injury was still causing him problems prior to his `accident' at work and this denial is contradicted by the evidence at trial." Id.
In this case, Ms. Blair admits she had a prior, similar injury in 1996 while employed at the Hilton Hotel when some chafing dishes fell on her and injured her back. She, however, contends that her prior injury had resolved itself. As noted, Wal-Mart counters that Ms. Blair's injury was a continuing one. In support of that claim, Wal-Mart relies on Ms. Blair's testimony at trial that her back was never the same after the Hilton accident coupled with various entries in the medical records.[2]*1049 Again, the trial court resolved that factual dispute in Ms. Blair's favor, and the record supports Ms. Blair's contention that her prior injury had resolved itself. In that regard, we find it relevant that Ms. Blair had been working at Wal-Mart for about ten months before the accident occurred without any problems. We also find it relevant that in the December 1997 settlement documents from the prior compensation proceeding arising out of the Hilton accident, the parties represented that Ms. Blair's TTD had ceased for more than six months "as per the opinions of the orthopedic surgeons who have treated her."
The trial court touched upon all six factors in its written reasons for judgment, reasoning:
Claimant sustained and reported a work-related accident on September 4, 1999 to her supervisor. However, claimant initially thought her injury was not going to be significant and declined an accident report and doctor visit. However, after leaving work, claimant soon came to realize that the work injury was significant and sought medical treatment on September 5, 1999.
Claimant has a pre-existing back condition. Claimant filed a workers' compensation claim in 1996 which resulted in an indemnity settlement of $1,500 (One Thousand Five Hundred Dollars). Claimant has treated with St. Claude General since 1994. However, prior to this accident on September 4, 1999, claimant had last treated with St. Claude General on May 12, 1998 well over one [year] earlier.
After listening to all the witnesses and evidence, this OWC Court finds that claimant is a credible witness on all issues relevant to this workers' compensation claim.
This OWC Court is not surprised that an accident with injury occurred when the female employee who weighed 370 pounds and had a prior back injury, was hired for a job which included moving and lifting boxes.
Under the manifest error standard of review, reasonable credibility evaluations and factual inferences should not be disturbed upon review where conflict exists in the testimony or the facts. Such is the case here.
Wal-Mart alternatively argues that even assuming Ms. Blair's back began hurting while she was lifting a cardboard box, i.e., zoning, this was only a "gradual deterioration" of her earlier back problems and not an "accident." Continuing, Wal-Mart contends that Ms. Blair was neither knocked down, nor fell down on the job and that the only real accident Ms. Blair sustained was the one at the Hilton Hotel in 1996 for which she has undergone substantial medical treatment.
The applicable statutory definition of "accident" is "an unexpected or unforeseen actual, identifiable, precipitous event happening suddenly or violently, with or without human fault, and directly producing at the time objective findings of an injury which is more than simply a gradual deterioration or progressive degeneration." La. R.S. 23:1021. Under this current definition *1050 of "accident," recovery is precluded for a "gradual deterioration," i.e., a "theory of wear and tear over the years of working." Juge, supra at § 8:2. Rather, to recover, a claimant is required to establish an "actual, precipitous event." Id. The courts, however, have declined to construe this current definition as "alter[ing] the longstanding rule that the employee's predisposition to injury will not preclude recovery provided an actual event is identified as having occurred at work." Id.
The cases Wal-Mart cites in support of its argument that Ms. Blair suffered simply a "gradual deterioration of her earlier problems that she sustained from the Hilton injury" are distinguishable. In Matthews v. Taylor Temporary, Inc., 97-1718 (La.App. 4 Cir. 2/11/98), 707 So. 2d 1021, we found the employee failed to prove a precipitous event and therefore concluded there was no "accident." Although the employee's claim form alleged his injury resulted from "lifting 80 pds. of rubber adding up weekly to the amount of 50,000 pounds," the employee's trial testimony was that "he felt the job duties in general, including lifting and twisting, caused him to develop pain." 97-1718 at p. 2, 707 So.2d at 1023.
In Daspit v. Southern Eagle Sales & Services, Inc., 98-1685 (La.App. 4 Cir.1/20/99), 726 So. 2d 1079, writ denied, XXXX-XXXX (La.6/15/01), 793 So. 2d 1245, we affirmed the trial court's finding that the plaintiff's injury was the continuing effect of a prior auto accident injury he had sustained, reasoning that "plaintiff introduced no evidence to show the extent to which his initial injury may have been aggravated by the claimed incident at work." 98-1685 at p. 7, 726 So.2d at 1082.
In Guillot v. Winn-Dixie of La., Inc., 189 So. 2d 52 (La.App. 4th Cir.1966), we affirmed the trial court's finding that plaintiff did not sustain an accident. In so doing, the trial court found the defendant's version credible, which was that the first complaint of a job-related injury was made after plaintiff's employment was terminated.
In Sisk v. Martin Specialty Coatings, 28,592 (La.App. 2 Cir. 8/21/96), 679 So. 2d 569, the court of appeal reversed the trial court's finding that the plaintiff had established an unwitnessed accident. In so doing, the court reasoned that the plaintiff "recounted his history of work place `accidents' with a lack of consistency and an imprecision of detail sufficient to cast doubts upon his credibility." 28,592 at pp. 9-10, 679 So.2d at 575. The court also noted the contrary testimony of plaintiff's supervisors and the lack of contemporaneous, objective medical corroboration of an injury. Id.
In sum, the cases on which Wal-Mart relies are all distinguishable. Based on the record in this case, we cannot say the trial court was manifestly erroneous in finding that Ms. Blair experienced an accident within the course and scope of her employment, causing injury for which she sought medical treatment shortly thereafter.
(iii) Disability
Wal-Mart's third assignment of error is that the trial court erred in awarding Ms. Blair TTD benefits. Simply stated, Wal-Mart contends that Ms. Blair's post-accident condition was not significantly different than her pre-accident condition.
An employee's entitlement to TTD is governed by La. R.S. 23:1221(1)(c), which provides that:
[W]henever the employee is not engaged in any employment ... compensation for temporary total disability shall be awarded only if the employee proves by clear and convincing evidence, that the employee is physically unable to engage in any employment or self-employment.
*1051 To satisfy the elevated burden of proving by clear and convincing evidence, the jurisprudence has recognized that an employee must introduce medical evidence of a disability. See Jackson v. Domtar Industries, Inc., 98-1335, pp. 6-7 (La.App. 3 Cir. 4/7/99), 732 So. 2d 733, 738, writ denied, 99-1369 (La.7/2/99), 747 So. 2d 21 (collecting cases); Scherer v. Interior Plant Design, 98-702 (La.App. 3 Cir. 10/28/98), 724 So. 2d 797, writ denied, 99-0297 (La.3/26/99), 739 So. 2d 792.
Ms. Blair contends that her own testimony and the medical records supporting her testimony are sufficient to establish her entitlement to TTD benefits. Specifically, she relies upon the medical records from her hospitalization and her various visits to her two treating doctors that were introduced at trial. Ms. Blair further relies on her own testimony that her back injuries were so painful that it made her unable to do even the simplest tasks and that she was never released from the care of either of her doctors.
As Wal-Mart emphasizes, the sole medical evidence of Ms. Blair's disability, i.e., inability to engage in any employment, is two handwritten notes from her doctors dated September 21, 1999, and November 29, 1999. The former note, by Dr. Marrero, simply certifies that she is under his care, that she is unable to work for an undetermined period of time, and that she is "disabled." The latter note, by Dr. Wiley, simply states that "[d]ue to chronic lower back pain, Ms. Blair is unable to work at this time." Neither of her treating doctors (Drs. Marrero or Wiley) was deposed or testified at trial. Based on this limited medical evidence, Wal-Mart contends that even assuming Ms. Blair established an entitlement to TTD, it should be limited to a two-month period. We agree.
As noted, to satisfy her burden of proving by clear and convincing evidence her physical inability to engage in any employment, Ms. Blair was required to introduce medical evidence of her disability. Ms. Blair's own testimony falls short of establishing by clear and convincing evidence her entitlement to TTD. See Lightell v. City of New Orleans, 96-2013, p. 4 (La.App. 4 Cir. 2/19/97), 689 So. 2d 732, 735. Indeed, Ms. Blair acknowledged in both her deposition and at trial her ability to engage in some, albeit limited and perhaps unavailable due to her limited education, type of job.[3] Although we sympathize with plaintiff's plight, her failure to produce any other medical evidence of a disability requires that we, as Wal-Mart suggests, limit the award of TTD to the two months of disability established by her doctors' notes.
Because the issue before the hearing officer was whether Ms. Blair was entitled to TTD benefits, her entitlement to SEB benefits was never considered by that court. Therefore, we find it necessary to remand for the hearing officer to address that issue. As in Smith v. Gaylord Container Corp., XXXX-XXXX (La.6/29/01), 791 So. 2d 629, "on remand the parties should be allowed to offer whatever evidence they deem appropriate to support or rebut the award of supplemental earnings benefits. See La. R.S. 23:1221(3)(c)(i)." See Nolan v. Rawls Farming Co., 35,086, p. 14, n. 4 *1052 (La.App. 2 Cir. 10/31/01), 801 So. 2d 524, 533, writ denied, XXXX-XXXX (La.3/15/02), 811 So. 2d 910.
(iv) Medical expenses
Wal-Mart's final assignment of error is that the trial court erred in awarding Ms. Blair medical expenses given her acknowledgement that Medicaid paid all of her medical expenses. Citing La. R.S. 23:1212, Wal-Mart contends that Medicaid's payment of the medical expenses extinguished those amounts; hence, it was legal error for the trial court to order it to pay any medical expenses to Ms. Blair. We agree.[4]
At the time of the accident in question, La. R.S. 23:1212 provided, in part, as follows:
Payment by any person or entity, other than a direct payment by the employee, a relative or friend of the employee, of medical expenses that are owed under this Chapter shall extinguish the claim against the employer or insurer for those medical expenses....
Addressing a similar issue, Justice (then Judge) Knoll in Granger v. Nelson Logging, 96-223 (La.App. 3 Cir. 12/4/96), 685 So. 2d 400, held that Medicare's payment of an employee's medical expenses extinguished the employee's claim for those expenses; in so doing, she remarked:
We have serious doubts as to whether it was the intention of the legislature to have payments by Medicare extinguish the obligation of the employer to pay medical expenses under worker's[sic] compensation. The statute's operation in the case sub judice undermines the basic principle of worker's[sic] compensation law, namely, that persons who enjoy the benefit of an employee's labor should be the ones to bear the cost of injuries incident to that labor. As a result of the application of La. R.S. 23:1212 to the instant case, the State will ultimately bear much of the burden of Mr. Granger's injuries, while C & M [the employer], having enjoyed the benefit of Mr. Granger's labor, will receive a windfall.
96-223 at p. 6, 685 So.2d at 403.
In La. Acts 2001, No. 1062, which became effect August 15, 2001, the Legislature amended La. R.S. 23:1212 to provide that "the medical expenses are not to be extinguished as an employer debt if paid by Medicaid or other state agencies. The amendment also gives Medicaid and the other state agencies the right to recover any payments from the employer." Juge, supra at § 12:7. Particularly, the amendment added the following language to that statutory provision: "[p]ayment by Medicaid or other state medical assistance programs shall not extinguish these claims and any payments made by such entities shall be subject to recovery by the state against the employer or insurer." La. R.S. 23:1212(B). That amendment, however, cannot be retroactively applied to this pre-amendment accident. See Gilmore v. SGB Constr. Services, Inc., 97-1669 (La. App. 1 Cir. 5/15/98), 712 So. 2d 663 (finding the original enactment of this statute could not be retroactively applied to an accident that occurred prior to its effective date). We thus reverse the trial court's award of medical expenses.
DECREE
For the foregoing reasons, the judgment of the trial court finding that Ms. Blair *1053 sustained a work-related accident is affirmed. The trial court's award of TTD benefits is amended and such benefits are limited to a two month period; however, this matter is remanded to the trial court to consider Ms. Blair's entitlement to SEB. The trial court's award of medical expenses is reversed. Costs of this appeal are split between the parties.
AFFIRMED IN PART, AMENDED IN PART, REVERSED IN PART, AND REMANDED.
NOTES
[1] Actually, Ms. Blair had two terms of employment at Wal-Mart. She worked for about nine months in 1998. She then voluntarily quit for personal reasons. She was rehired in August 1999, and she worked until the day of the accident, September 4, 1999.
[2] Wal-Mart cites the following evidence: (1) a February 1997 MRI showing a bulging disc at several levels and a degenerative disc disease in her lower back; (2) statements Ms. Blair made to hospital employees that she had "severe back pain" between her 1996 accident at Hilton Hotel and the 1999 incident at Wal-Mart, (3) that she had "chronic low back pain" before the incident at Wal-Mart, and that she had back pain "off and on" since the Hilton accident; and (4) another emergency room visit for low back pain before the Wal-Mart incident
[3] When questioned at trial regarding her present ability to engage in any type of work, Ms. Blair responded that "because of [her ninth grade] education, it look like the only type of jobs I'm able to do is maybe, you know, label jobs. I can't think of maybe no desk work or typing or anything, unless I go back to school for it." In her deposition, she similarly stated: "[m]aybe something that won't require too much standing or maybe some sitting. You know, something that I can, you know like get up, sit down, get up. Something where I won't have to just sit in one spot maybe. Maybe typing."
[4] We express no opinion on the point Ms. Blair raises regarding federal statutory provisions entitling Medicaid to reimbursement when an injured party recovers any medical expenses from a third party. Given our reversal of the entire medical expense award, we also decline to address Wal-Mart's alternative argument that under La. R.S. 23:1442(B) its liability for unauthorized, nonemergency medical care is limited to $750. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598070/ | 818 So. 2d 588 (2002)
Bernard B. ROBINSON, Appellant,
v.
STATE of Florida, Appellee.
No. 5D01-1262.
District Court of Appeal of Florida, Fifth District.
April 26, 2002.
Rehearing Denied June 13, 2002.
James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
SAWAYA, J.
Bernard Robinson appeals from his convictions and sentence for aggravated felony fleeing and eluding a law enforcement officer, possession of cannabis and resisting a law enforcement officer without violence. Robinson was sentenced to fifteen years' incarceration, consecutive to an already existing five-year prison sentence for violating probation. Of the issues Robinson raises, the only one that warrants discussion is whether the trial court erred in admitting into evidence a cigar allegedly rolled with marijuana based upon an arresting officer's opinion that the cigar was a "blunt" containing marijuana. We affirm.
At trial, one of the arresting officers testified that the cigar discovered in Robinson's car contained marijuana. The officer's conclusion was based on his training, four years of experience handling marijuana, and Robinson's own admission, as well as the cigar's form, odor and appearance. When the State sought to admit the "blunt" into evidence, Robinson objected, arguing, inter alia, that the State failed to sufficiently prove that the substance in the cigar was marijuana because the officer was not qualified to give an expert opinion on this issue. The trial court overruled the objection and admitted the cigar into evidence.
A witness may be qualified as an expert based on his or her knowledge, skill, experience, *589 training or education to render an opinion if it will assist the jury in determining a fact in issue. § 90.702, Fla. Stat. (2001). The courts generally agree that the identification of illegal drugs may be proven by expert witnesses. Brooks v. State, 762 So. 2d 879 (Fla.2000); J.S. v. State, 691 So. 2d 20, 20 (Fla. 3d DCA 1997) (citing Pama v. State, 552 So. 2d 309 (Fla. 2d DCA 1989); A.A. v. State, 461 So. 2d 165 (Fla. 3d DCA 1984)); State v. Raulerson, 403 So. 2d 1102 (Fla. 5th DCA 1981).[1] Therefore, chemical or scientific testing is not necessary for the state to prove that a particular substance is an illegal drug. J.S.; Raulerson. A law enforcement officer, for example, with adequate experience with narcotics can identify a substance as marijuana by its appearance and odor. J.S.; Raulerson.
Robinson specifically contends that the officer who testified was not qualified to render an opinion that the substance in the cigar was marijuana. However, "[i]t is within the trial court's discretion to determine a witness's qualifications to express an opinion as an expert, and the court's determination in this regard will not be reversed absent a clear showing of error." Brooks, 762 So.2d at 892 (citations omitted); see also Ramirez v. State, 542 So. 2d 352 (Fla.1989). The trial court found that the arresting officer had sufficient training and experience with marijuana to qualify him to render an opinion that the substance was indeed marijuana. We see nothing in the record to indicate that the trial court abused its discretion in making this decision.
AFFIRMED.
GRIFFIN and ORFINGER, R. B., JJ., concur.
NOTES
[1] The Florida Supreme Court held in Brooks that an experienced dealer of crack cocaine was qualified to testify that the retrieved substance was crack cocaine and that each rock weighed approximately one gram. See also Raulerson. Although here we are not confronted with the specter of the state in a criminal prosecution attempting to qualify a drug dealer as an expert witness to identify illegal narcotics, if a drug dealer may qualify as an expert identifier of illegal narcotics, his antithesis, a law enforcement officer, may certainly qualify despite the fact that each acquires the requisite knowledge, skill, training, and experience in very different ways. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/719271/ | 85 F.3d 628
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.Douglas D. GIBSON, Plaintiff-Appellant,v.The UNIVERSITY OF CINCINNATI; Nancy Talbott; Tina Whalen,Defendants-Appellees.
No. 95-3461.
United States Court of Appeals, Sixth Circuit.
May 13, 1996.
Before: MERRITT, Chief Circuit Judge, LIVELY and RYAN, Circuit Judges.
PER CURIAM.
1
This case represents another attempt by an Ohio litigant to avoid the effect of our en banc decision in Leaman v. Ohio Department of Mental Retardation & Development Disabilities, 825 F.2d 946 (6th Cir.1987), cert. denied, 487 U.S. 1204 (1988). Because we are bound by that decision and find no merit in the plaintiff's arguments, we affirm the decision of the district court.
I.
2
The plaintiff, Douglas D. Gibson, was a student at the University of Cincinnati Physical Therapist Assisting Program. He became involved in a dispute with the defendants, Talbott and Whalen, over whether he had satisfied a regulation that required each student in the program to provide a physician's certification that he or she had received a Hepatitis B vaccination. Ms. Talbott was the program coordinator and Ms. Whalen worked under her. After Mr. Gibson's efforts to convince the two individual defendants that he had met the requirements failed, Ms. Talbott dismissed him from the program.
3
On September 17, 1993, Mr. Gibson filed a complaint in the Ohio Court of Claims seeking a permanent injunction requiring the University of Cincinnati to reinstate him in the program and $200,000 in compensatory damages. On December 1, 1993, the court of claims issued a decision which held that the plaintiff was entitled to a permanent injunction and bifurcated the issue of damages. On December 30, 1993, the court of claims issued findings of fact and conclusions of law. The court of claims found that the plaintiff, Gibson, had failed to prove by a preponderance of the evidence his allegation charging intentional or negligent infliction of emotional distress, the allegation on which the claim for damages was based. In an "Agreed Entry" on January 25, 1994, the court of claims vacated its previous order for a trial on damages and formally entered the permanent injunction.
4
On March 31, 1994, Mr. Gibson filed an action in federal district court, naming the University of Cincinnati, Ms. Talbott and Ms. Whalen as defendants. He sued Ms. Talbott and Ms. Whalen in both their individual and official capacities. This suit was brought under 42 U.S.C. §§ 1983, 1985 and 1988, and sought both compensatory and punitive damages against all three defendants, as well as costs and attorney fees. More specifically, he demanded a judgment against the defendants, jointly and severally, for $610,000 in compensatory damages and $8,000,000 in punitive damages. This claim for damages was based on the same acts of Ms. Talbott and Ms. Whalen that were the basis for the monetary claims in the Ohio Court of Claims.
5
Relying on this court's en banc decision in Leaman, the district court held that Mr. Gibson had waived his right to litigate the same allegations of wrongdoing in federal court under the federal civil rights statutes that he had relied upon in his action before the Ohio Court of Claims.
II.
6
The Ohio Court of Claims statute, Ohio Revised Code § 2743, states as pertinent here:
7
§ 2743.02 State waives immunity from liability.
8
(A)(1) The state hereby waives its immunity from liability and consents to be sued, and have its liability determined, in the court of claims created in this chapter in accordance with the same rules of law applicable to suits between private parties, except that the determination of liability is subject to the limitations set forth in this chapter and, in the case of state universities or colleges, in section 3345.40 of the Revised Code, and except as provided in division (A)(2) of this section. To the extent that the state has previously consented to be sued, this chapter has no applicability.
9
Except in the case of a civil action filed by the state, filing a civil action in the court of claims results in a complete waiver of any cause of action, based on the same act or omission, which the filing party has against any officer or employee, as defined in section 109.36 of the Revised Code. The waiver shall be void if the court determines that the act or omission was manifestly outside the scope of the officer's or employee's office or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner.
10
In Leaman we held that this statute put all claimants who wish to take advantage of the state's voluntary waiver of sovereign immunity on notice that by proceeding in the court of claims the claimants themselves "waive any cognate claims they might have against the state's employees." 825 F.2d at 951. We stated that § 2743.02(A)(1) gives plaintiffs an option not otherwise available to them--the right to sue the state and state officials in their official capacities for damages. The quid pro quo for this opportunity to sue the state for damages is the waiver of any cause of action that the party filing in the court of claims may have against a state officer or employee based on the same alleged wrongful act or omission. Id. at 951-52. A plaintiff who chooses not to exercise this option may sue under 42 U.S.C. § 1983 either in federal district court or in the state court of common pleas.
11
In Leaman, and again in Thomson v. Harmony, 65 F.3d 1314 (6th Cir.1995), this court rejected the very arguments that Mr. Gibson relies upon in this appeal. This court has twice held that foreclosure of a claimant's right to sue in federal court under 42 U.S.C. § 1983 because he has sought damages from a state agency or institution in the Ohio Court of Claims does not deny the claimant any right guaranteed by a federal statute or the Constitution of the United States. Howlett v. Rose, 496 U.S. 356 (1990), relied upon by the plaintiff, does not require a contrary result. The Supreme Court held in Howlett that state as well as federal courts have jurisdiction over suits brought pursuant to 42 U.S.C. § 1983, and that state courts have a duty to enforce federal law. Thus, a state court cannot decline jurisdiction over § 1983 claims in the absence of a "valid excuse." Howlett dealt with an entirely different question from the one involved in our application of Ohio Revised Code § 2743.02(A)(1).
12
The only other question before us is whether the court of claims' finding that Ms. Talbott acted in "an arbitrary and capricious manner" in dealing with Mr. Gibson resulted in a voiding of Mr. Gibson's waiver under the last sentence of § 2743.02(A)(1). We agree with the district court that a finding that a state officer or employee acted in an arbitrary and capricious manner is not the equivalent of a finding that "the act or omission was manifestly outside the scope of the officer's or employee's office or employment or that the officer or employee acted with malicious purpose, in bad faith, or in a wanton or reckless manner."
13
The judgment of the district court is AFFIRMED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/704017/ | 65 F.3d 1406
64 USLW 2181, 1995-2 Trade Cases P 71,120,Medicare & Medicaid Guide P 43,676
BLUE CROSS & BLUE SHIELD UNITED OF WISCONSIN and CompcareHealth Services Insurance Corporation,Plaintiffs-Appellees, Cross-Appellants,v.MARSHFIELD CLINIC and Security Health Plan of Wisconsin,Inc., Defendants-Appellants, Cross-Appellees.
Nos. 95-1965, 95-2140.
United States Court of Appeals,Seventh Circuit.
Argued Aug. 9, 1995.Decided Sept. 18, 1995.As Amended on Denial of Rehearing Oct. 13, 1995.
Barbara Van Dam, Blue Cross & Blue Shield of Wisconsin, Milwaukee, WI, Jon G. Furlow, James R. Troupis (argued), Michael, Best & Friedrich, Madison, WI, John E. Flanagan, Michael, Best & Friedrich, Milwaukee, WI, William E. Snyder, Michael, Best & Friedrich, Chicago, IL, Jack A. Rovner, Rovner & Associates, Naperville, IL, for Blue Cross and Blue Shield United of Wisconsin and Compcare Health Services Insurance Corp.
Steven J. Caulum, Bell, Metzner, Gierhart & Moore, Madison, WI, Kevin D. McDonald, Thomas F. Cullen, Jr. (argued), Phillip A. Proger, Edwin L. Fountain, Gregory G. Katsas, Jones, Day, Reavis & Pogue, Washington, DC, Reed E. Hall, Marshfield Clinic, Marshfield, WI, for Marshfield Clinic and Security Health Plan of Wisconsin, Inc.
Melinda Reid Hatton, Clifford D. Stromberg, Hogan & Hartson, Washington, DC, Kathleen Kenyon, American Group Practice Association, Alexandria, VA, for American Group Practice Association amicus curiae.
Arthur N. Lerner, Robert S. Canterman, Michaels, Wishner & Bonner, Washington, DC, for Health Insurance Association of America amicus curiae.
Before POSNER, Chief Judge, and BAUER and KANNE, Circuit Judges.
POSNER, Chief Judge.
1
Blue Cross & Blue Shield United of Wisconsin ("Blue Cross" for short), and its subsidiary, Compcare Health Services Insurance Corporation, a health maintenance organization (HMO), brought suit last year under sections 1 and 2 of the Sherman Act, 15 U.S.C. Secs. 1, 2, against the Marshfield Clinic and its HMO subsidiary, Security Health Plan of Wisconsin, Inc. After a two-week trial, the jury brought in a verdict for both plaintiffs that, after remittitur, trebling, and addition of attorneys' fees, produced a judgment just short of $20 million to which the judge then added a sweeping injunction that we have stayed pending the decision of the defendants' appeal, which we have heard on an expedited schedule. (The plaintiffs filed a cross-appeal, but it was dismissed by agreement of the parties.) The speed with which this complex case was brought to trial is as commendable as it is unusual.
2
The two plaintiffs have distinct though overlapping claims. Compcare, Blue Cross's HMO, claims that the Marshfield Clinic--a nonprofit corporation owned by the 400 physicians whom it employs--has a monopoly which it acquired and has maintained by improper practices that have excluded Compcare from the HMO "market" in the counties of north central Wisconsin in which the Marshfield Clinic and its HMO subsidiary (Security) operate. This is a section 2 monopolization charge. Blue Cross claims that Marshfield, partly through its own monopoly power and partly by collusion with other providers of medical services, charged supracompetitive prices to patients insured by Blue Cross. This is a section 2 monopolization charge combined with a section 1 price-fixing and division-of-markets charge.
3
Although Marshfield is a town of only 20,000 people in a largely rural region, the Marshfield Clinic is the fifth largest physician-owned clinic in North America, with annual revenues in excess of $200 million. The Clinic has its main office in Marshfield but it has 21 branch offices scattered throughout the 14 counties of north central Wisconsin. Oddly, we cannot find in the record, nor were counsel able to inform us at argument, what percentage the 400 physicians employed by the Clinic comprise of all the physicians in the 14 counties. We do know that the Clinic employs all the physicians in Marshfield itself and in several other towns--but one of these towns has only one physician--and all the physicians in one entire county--but a county that has only 12 physicians. Security, the Marshfield Clinic's HMO subsidiary, serves its subscribers through the physicians employed by the Clinic plus almost 900 other physicians with whom Security has contracts. These contracts are not exclusive--the physicians are free to work for other HMOs as well as to practice fee-for-service medicine--and in fact work for Security generates only 6 percent of these physicians' total income. (Compcare argues that the 6 percent figure is found only in a study and testimony excluded from evidence, but our reading of the objection to the testimony and the ruling on that objection is that not the figure, but only the witness's effort to characterize it as insignificant, was excluded.) In nine of the 14 counties in the north central region, Security has more than 90 percent of all subscribers to HMOs.
4
Compcare persuaded the jury that HMOs constitute a separate market, much as banks are a separate market from currency exchanges; and if there is a reasonable basis for this finding in the evidence, we are bound to accept it regardless of what we might think as an original matter. But we have searched the record in vain for evidence that under contemporary principles of antitrust law would justify such a finding. An HMO is not a distinctive organizational form or assemblage of skills, as is plain from the fact that the physicians retained by Security, whether they are employees of the Marshfield Clinic or completely independent, to serve its subscribers serve other patients on a fee-for-service basis. An HMO is basically a method of pricing medical services. Instead of having the patient pay separately for each medical procedure, the patient pays a fixed annual fee for all the services he needs and the HMO undertakes to provide those services with the physicians with whom it has contracts. The different method of pricing used by the HMO has, of course, consequences both for the practice of medicine and for the allocation of the risk of medical expenses. The method of pricing gives the HMO an incentive to minimize the procedures that it performs, since the marginal revenue it derives from each procedure is zero. Hence HMOs are thought to reduce "waste" and to encourage preventive care, although those hostile to the HMO concept believe that the principal effect is merely to reduce the amount of medical care that patients receive. The risk-shifting feature of the concept lies in the fact that if a subscriber incurs above-average medical expenses, the excess cost is borne by the HMO rather than by the subscriber (or by his insurer, or more likely by both because of copayment and deductible provisions in the insurance policy), while if he incurs below-average medical expense the difference enures to the benefit of the HMO rather than to him or his insurer (or, again, both). To control the upside risk that it incurs, the HMO provides medical services through physicians with whom it has contracts specifying their compensation, rather than merely reimbursing some percentage of whatever fee they might happen to charge for their services. This means that the HMO must be able to line up enough physicians with whom to contract to provide its subscribers with a more or less complete menu of medical services. Compcare complains that Security's contracts with physicians require them to refer their patients to the Clinic rather than to "independent" physicians. But that is of the essence of an HMO: the subscriber must take the service offered by the physicians whom the HMO has enlisted.
5
Compcare's principal argument is that Security has enlisted such a large fraction of the physicians in the 14-county north central region that Compcare cannot find enough "independent" physicians to be able to offer HMO services competitive with Security's--hence Security's huge market shares in 9 of the 14 counties. Supposing this is true--as seems unlikely since Security's almost 900 independent physicians are available to join other HMOs, along with an unknown number of physicians neither employed by the Marshfield Clinic nor retained by Security--it has monopolistic significance only if HMOs constitute a market separate from other contractual forms in which many of the same physicians sell their services. Of this we cannot find any evidence.
6
In defining a market, one must consider substitution both by buyers and by sellers, IIA Phillip E. Areeda, John L. Solow & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application p 530a (1995), and let us start with buyers. The record shows, what is anyway well known, that individuals, and their employers, and medical insurers (the real "buyers" of medical services, according to the plaintiffs) regard HMOs as competitive not only with each other but also with the various types of fee-for-service provider, including "preferred provider" plans (generally referred to as "PPOs," for "preferred provider organization") under which the insurer offers more generous reimbursement if the insured patronizes physicians who have contracts with the insurer to provide service at low cost to its insureds. HMOs, though they have made great strides in recent years because of the widespread concern with skyrocketing medical costs, remain relative upstarts in the market for physician services. Many people don't like them because of the restriction on the patient's choice of doctors or because they fear that HMOs skimp on service, since, as we said, the marginal revenue of a medical procedure to an HMO is zero. From a short-term financial standpoint--which we do not suggest is the only standpoint that an HMO is likely to have--the HMO's incentive is to keep you healthy if it can but if you get very sick, and are unlikely to recover to a healthy state involving few medical expenses, to let you die as quickly and cheaply as possible. HMOs compensate for these perceived drawbacks by charging a lower price than fee-for-service plans.
7
We do not wish to associate ourselves with the critics of HMOs. All that is important to our consideration of this appeal is that many people believe--whether rightly or wrongly is of no moment--that HMOs are not an unalloyed blessing; and this means that the price that an HMO can charge is constrained not only by competition from other HMOs but also by competition from forms of medical-services contracting that are free from the perceived perverse incentive effects of the HMO form. As far as we know or the record shows, even in areas where there is only one HMO most of the people in its service area do not subscribe to it even if its prices are lower than those of fee-for-service providers.
8
We do not understand Compcare to be contending that insurance companies cannot find enough physicians in the north central region willing to sign contracts with them to staff preferred-provider plans. This has a dual significance. Such plans are particularly close substitutes for HMOs, since they use the insurer's clout with physicians to drive down price. And if, as the record shows, they are feasible even in areas supposedly dominated by the Marshfield Clinic, and even without including any physicians employed by the Clinic, it is impossible to understand what barrier there could be to the formation of HMOs. All that is needed is an array of physicians who among them provide a broad range of medical services, and the same thing is needed for a preferred-provider plan. Ability to create a preferred-provider plan therefore implies ability to create an HMO, and so implies in turn that if Security raised its prices above competitive levels, and if people had a strong preference for HMOs over preferred-provider plans despite the similarities between the two systems for providing medical care, the operators of those plans would convert them to HMOs. If so, those plans are part of the same market with HMOs. So Blue Cross and Blue Shield of Indiana argued in Ball Memorial Hospital, Inc. v. Mutual Hospital Ins., Inc., 784 F.2d 1325 (7th Cir.1986), and we accepted its argument. Id. at 1331-37.
9
As we said earlier, the definition of a market depends on substitutability on the supply side as well as on the demand side. Even if two products are completely different from the consumer's standpoint, if they are made by the same producers an increase in the price of one that is not cost-justified will induce producers to shift production from the other product to this one in order to increase their profits by selling at a supracompetitive price. SBC Communications Inc. v. FCC, 56 F.3d 1484, 1493-94 (D.C.Cir.1995); cf. Ball Memorial Hospital, Inc. v. Mutual Hospital Ins., Inc., supra, 784 F.2d at 1335. The services offered by HMOs and by various fee-for-service plans are both provided by the same physicians, who can easily shift from one type of service to another if a change in relative prices makes one type more lucrative than others.
10
We thus do not believe that a reasonable jury, confronting the record compiled in the district court, could find that HMOs constitute a separate market. (We emphasize "record compiled in the district court." Terms such as "HMO" and "PPO" are used to refer to a variety of different types of plan, which may vary in respects crucial to antitrust liability.) Nor, if we examine a more plausible market such as all physician services in north central Wisconsin and thus shift our focus from Security, the HMO, to the Marshfield Clinic itself, is there any basis in the record for treating the Clinic not as the alliance of 400 physicians that is the Marshfield Clinic but instead as the almost 1300 physicians who are either employed by the Clinic or have contracts with Security. The 900 independent contractors derive only a small fraction of their income from those contracts, as we have seen, and the contracts do not forbid them to join other HMOs or otherwise compete with Security or with the Marshfield Clinic.
11
It is true that because of the sparsity of the physician population in north central Wisconsin the physicians employed by the Clinic have a large share of the market for physician services, since, for primary care anyway (an important qualification--people will go a long way for a liver transplant), that market is a local one. Remember, there is one entire county in which all the physicians are employed by the Clinic. We do not understand Compcare to be arguing that this is the market that the Clinic monopolized; the damages to Compcare from being excluded (if it was excluded--we do not know) from that tiny market would be tiny. Compcare paints with a broader brush, drawing a dizzying series of concentric circles around the Clinic's offices and counting the physicians who can serve people living in the circles. It would have been much simpler and we suppose just as good--having in mind the desirability of avoiding a hunt for the snark of delusive exactness--to have treated the counties as the markets. But whatever the precise method chosen, Compcare is unable to show that in what it chooses to regard as the relevant geographic market or series of linked geographic markets for physician services the Marshfield Clinic employed 50 percent or more of the physicians serving the market. Fifty percent is below any accepted benchmark for inferring monopoly power from market share, United States v. Rockford Memorial Corp., 898 F.2d 1278, 1285 (7th Cir.1990); Fineman v. Armstrong World Industries, Inc., 980 F.2d 171, 201-02 (3d Cir.1992); Colorado Interstate Gas Co. v. Natural Gas Pipeline Co., 885 F.2d 683, 694 n. 18 (10th Cir.1989); United States v. Aluminum Co. of America, 148 F.2d 416, 424 (2d Cir.1945) (L. Hand, J.), and the Clinic has given us no reason for lowering the mark. Compcare is able to derive larger shares only by defining submarkets of specific, very narrowly defined medical procedures, called "Diagnostic Related Groups," such as circumcision of a male 17 years old or older, circumcision of a male under 17, hysterectomy, and reconstructive surgery for the uterine system, in a few of which (14 out of 494, according to Compcare's expert witness) the physicians employed by or under contract with the Marshfield Clinic performed most of the procedures in north central Wisconsin. As the examples we have given show, classification in a DRG is unrelated to the conditions of supply. Many, no doubt most, physicians perform or are capable of performing more than one procedure, and are therefore part of the market even if at present not active in it. If the Clinic overprices a particular procedure, other physicians capable of performing that procedure will have an added incentive to do so, knocking down the excessive price.
12
Compcare also asked the jury to infer monopoly power directly from the Clinic's high prices, and high rate of return, relative to the prices and rates of return of its competitors. But when dealing with a heterogeneous product or service, such as the full range of medical care, a reasonable finder of fact cannot infer monopoly power just from higher prices--the difference may reflect a higher quality more costly to provide--and it is always treacherous to try to infer monopoly power from a high rate of return. Taking the second point first, not only do measured rates of return reflect accounting conventions more than they do real profits (or losses), as an economist would understand these terms, Susan Rose-Ackerman, "Unfair Competition and Corporate Income Taxation, 34 Stan.L.Rev. 1017, 1025 n. 28, 1031 n. 43 (1982); Michael Boudin, "Forensic Economics," 97 Harv.L.Rev. 835, 837 (1984), but there is not even a good economic theory that associates monopoly power with a high rate of return. Firms compete to become and to remain monopolists, and the process of competition erodes their profits. Conversely, competitive firms may be highly profitable merely by virtue of having low costs as a result of superior efficiency, yet not sufficiently lower costs than all other competitors to enable the firm to take over its market and become a monopolist. As for high prices, one of the complaints against HMOs, remember, is that they skimp on service. One HMO may charge higher prices than other HMOs (and Security does charge higher prices) not because it has a monopoly but because it is offering better service than the other HMOs in its market. Compcare itself stresses the quality of the Marshfield Clinic's doctors, as part of its argument that it cannot succeed unless the Clinic is forced to join it. Generally you must pay more for higher quality.
13
So Security is not a monopolist of HMO services, because, subject to our earlier qualification, HMOs are not a market. The Marshfield Clinic, its parent, is not a monopolist either. It does not control its independent contractors; and once they are excluded, the Clinic (which is to say the physicians who own and are employed by it--who are the firm, functionally speaking) does not have a monopoly of physician services in the north central region or in any parts of the region other than parts too small to support more than a handful of physicians. If the Marshfield Clinic is a monopolist in any of these areas it is what is called a "natural monopolist," which is to say a firm that has no competitors simply because the market is too small to support more than a single firm. If an entire county has only 12 physicians, one can hardly expect or want them to set up in competition with each other. We live in the age of technology and specialization in medical services. Physicians practice in groups, in alliances, in networks, utilizing expensive equipment and support. Twelve physicians competing in a county would be competing to provide horse-and-buggy medicine. Only as part of a large and sophisticated medical enterprise such as the Marshfield Clinic can they practice modern medicine in rural Wisconsin.
14
We are mindful that a concept of essential or bottleneck facilities has been used from time to time to require a natural monopolist to cooperate with would-be competitors. E.g., Otter Tail Power Co. v. United States, 410 U.S. 366 (1973); MCI Communications Corp. v. AT & T Corp., 708 F.2d 1081, 1132-33 (7th Cir.1983). The principal case remains the old St. Louis terminal case. United States v. Terminal Railroad Ass'n, 224 U.S. 383, 32 S. Ct. 507, 56 L. Ed. 810 (1912). A consortium of 14 of the 24 railroads that shipped freight across the Mississippi River at St. Louis got control of the terminal facilities at each side of the river. The Supreme Court, while assuming that the operation of these facilities as a single entity was the most efficient way to operate them (that is, they comprised a natural monopoly), held that the Sherman Act required the consortium to provide access to the terminal facilities to the 10 other railroads on nondiscriminatory terms. The decision, along with the rest of the decisions in the essential-facilities line, has been criticized as having nothing to do with the purposes of antitrust law. E.g., Herbert Hovenkamp, Federal Antitrust Policy: The Law of Competition and Its Practice Sec. 7.7 (1994); Phillip Areeda, "Essential Facilities: An Epithet in Need of Limiting Principles," 58 Antitrust L.J. 841 (1990); Scott D. Makar, "The Essential Facilities Doctrine and the Health Care Industry," 21 Fla.St.U.L.Rev. 913 (1994). Had the terminal facilities been owned by a firm unaffiliated with any railroad, the firm could have charged whatever prices it wanted, including prices that discriminated against some of the users (monopolists frequently price discriminate), because the antitrust laws do not regulate the prices of natural monopolists. A natural monopolist that acquired and maintained its monopoly without excluding competitors by improper means is not guilty of "monopolizing" in violation of the Sherman Act, National Reporting Co. v. Alderson Reporting Co., 763 F.2d 1020, 1023-24 (8th Cir.1985); United States v. Aluminum Co. of America, supra, 148 F.2d at 430, and can therefore charge any price that it wants, Ball Memorial Hospital, Inc. v. Mutual Hospital Ins., Inc., supra, 784 F.2d at 1339; Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 296-98 (2d Cir.1979), for the antitrust laws are not a price-control statute or a public-utility or common-carrier rate-regulation statute.
15
And the charging of a high price is, so far as potential competitors are concerned, an attracting rather than an excluding practice. Consumers are not better off if the natural monopolist is forced to share some of his profits with potential competitors, as required by Terminal Railroad Ass'n. Similarly, if the practice of medicine in some sparsely populated county of north central Wisconsin is a natural monopoly, consumers will not be helped by our forcing the handful of physicians there to affiliate with multiple HMOs. Those physicians will still charge fees reflecting their monopoly.
16
We are not authorized to abrogate doctrines that have been endorsed and not yet rejected by the Supreme Court--as we acknowledged, indeed emphasized, with specific reference to the "essential facilities" doctrine, in Olympia Equipment Leasing Co. v. Western Union Telegraph Co., 797 F.2d 370, 376 (7th Cir.1986)--but we do not understand Compcare to be trying to pin the tail on the natural-monopoly donkey. Its argument is not that the Marshfield Clinic "owns" some tiny natural monopolies scattered throughout its market area, to which it must admit Compcare, but that the Clinic itself is an essential facility that any HMO may demand access to on equal terms, like the excluded railroads in the terminal case. To be an essential facility, however, a facility must be essential. The terminal association controlled 100 percent of a market, assumed to be properly defined, consisting of terminal services at St. Louis. The Clinic does not control 100 percent--or even 50 percent--of any properly defined market. It did have a monopoly market share of the HMO "market," but we have held that that is not a proper market; and likewise the DRGs. Nor can the Clinic's market share be levered up to 100 percent by the argument that the Clinic's reputation is so superb that no one will sign up with an HMO or preferred-provider plan that does not have the Clinic on its roster. The suggestion that the price of being "best" is to be brought under the regulatory aegis of antitrust law and stripped of your power to decide whom to do business with does not identify an interest that the antitrust laws protect. "The successful competitor, having been urged to compete, must not be turned upon when he wins." United States v. Aluminum Co. of America, supra, 148 F.2d at 430.
17
Since monopoly power was not proved, we need not evaluate the practices by which the Clinic acquired or maintained it. But we will not conceal our skepticism that they are exclusionary in an invidious sense. Compcare argues that the Clinic refused to allow its employees to "cross-cover" with "independent" physicians, in the sense of physicians not employed by or affiliated by contract with the Clinic (that is, agree to care for another physician's patients when that physician is on vacation or otherwise unavailable in exchange for a reciprocal agreement by the other physician), discouraged hospitals that its staff controlled from joining HMOs that compete with Security, and restricted staff privileges at those hospitals of "independent" physicians at those hospitals. All these practices are ambiguous from the standpoint of competition and efficiency. Hospitals are not public utilities, required to grant staff privileges to anyone with a medical license. The Marshfield Clinic's reputation for high quality implies selectivity in the granting of staff privileges at hospitals affiliated with the Clinic. Physicians employed by the Clinic, which has its own HMO, are hardly to be expected to steer their patients to another HMO, as they would be doing if they used their control of hospital staffs to induce the hospital to join another HMO. And given the extensive network constituted by the physicians either employed by or contracting with the Clinic, they would have little occasion to "cross-cover" with other physicians and would be reluctant to do so if, as is completely consistent with Compcare's version of the "essential facilities" doctrine, the Clinic maintains a reputation for high quality by being selective about the physicians to whom it entrusts its customers. But the important point is that, even if these practices are as we doubt tortious interferences with Compcare's business, they do not constitute monopolizing in violation of section 2 of the Sherman Act in the absence of acceptable proof, here lacking, of monopoly power.
18
We turn to Blue Cross's case. Blue Cross claims that it was overcharged by the Clinic. Many of the individuals whom Blue Cross insures in north central Wisconsin are customers of the Marshfield Clinic, paying for the services they receive from the Clinic on a fee-for-service basis. (The Clinic's doctors devote only a small part of their time to Security's HMO clientele.) Blue Cross pays the Clinic directly the portion of the fee that Blue Cross has agreed with its insureds to cover. The Clinic seeks to head off Blue Cross's claim at the pass, arguing that since the Clinic's fee-for-service contracts are with the patients themselves--it has no contract with Blue Cross--only the patients have "standing" (a term here not used in the jurisdictional sense, Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 535 n. 31, 103 S. Ct. 897, 907 n. 31, 74 L. Ed. 2d 723 (1983)) to complain about the alleged overcharging.
19
If the patients paid the entire fees to the Clinic and then were reimbursed in whole or part by Blue Cross, the Clinic would be right: only the patients could sue. The Supreme Court has been emphatic that only the direct purchaser from an allegedly overcharging defendant has standing to maintain an antitrust suit. Kansas v. Utilicorp United Inc., 497 U.S. 199, 110 S. Ct. 2807, 111 L. Ed. 2d 169 (1990); Illinois Brick Co. v. Illinois, 431 U.S. 720, 97 S. Ct. 2061, 52 L. Ed. 2d 707 (1977). But here the money went directly from Blue Cross to the Clinic, and although the two entities were not linked by any overarching contract, each payment and acceptance was a separate completed contract. We do not think more is required to establish Blue Cross's right to sue to collect these overcharges. Pennsylvania Dental Ass'n v. Medical Service Ass'n, 815 F.2d 270, 276-77 (3d Cir.1987); Todorov v. DCH Healthcare Authority, 921 F.2d 1438, 1455 (11th Cir.1991); cf. Kartell v. Blue Shield of Mass., Inc., 749 F.2d 922, 926 (1st Cir.1984). It would be cumbersome, to say the least, for patients of the Marshfield Clinic to organize into a class action to recover money that the patients never paid and that if they received in a judgment or settlement they would have to share with Blue Cross; for Blue Cross could seek and probably obtain restitution of moneys paid by mistake to the insureds because paid for expenses that the insureds had not in the end incurred. 2 George E. Palmer, The Law of Restitution Sec. 11.2(d), p. 491 (1978); Home Ins. Co. v. Honaker, 480 A.2d 652 (Del.1984); Ticor Title Ins. Co. v. Graham, 576 N.E.2d 1332, 1336-37 (Ind.App.1991).
20
Against this it can be argued that if Blue Cross reimburses an insured for say 80 percent of a $100 charge that should have been only $50, Blue Cross has lost $40 but the insured has lost $10 and so there is still a basis for a class action. Still, in this example anyway it is Blue Cross that bears the lion's share of the loss, as well as being able to proceed on its own without the aggregation of separate plaintiffs required for a class action; and the class action would enable a full recovery of the damages inflicted by the defendant only if the class members received a tremendous windfall--only, that is, if the class is allowed to recover $40 rather than $10 (and the entire $50 will of course be trebled). It can further be argued that the insured might pay the whole $50, because Blue Cross would reduce the percentage that it reimburses in order to shift the cost of the monopolist's overcharge to the hapless insureds. But the insureds may not be hapless--may in fact be members of the employees' group insurance plan of a large employer with plenty of insurance options. We need not pursue these issues. Blue Cross paid Marshfield Clinic directly, in accordance with Blue Cross's contractual obligations to its insureds, and if it paid too much because the Clinic violated the antitrust laws then it ought to be allowed to sue to recover these damages.
21
We note a tension between Blue Cross's claim and Compcare's. Blue Cross claims that the Clinic overcharged. The higher its prices, the greater the opening for competitors, such as Compcare. Even if Compcare could not get a foothold in the HMO "market," it could, of course, provide medical services through other means, such as a preferred-provider plan; and the higher the prices charged by the Marshfield Clinic, the more attractive such a plan offered by Compcare would be to employers and other purchasers of medical plans. To put the point differently, Blue Cross has a dual role in this case, as a buyer of medical services from Marshfield Clinic and, through its Compcare subsidiary, as a competitor of the Clinic. As a competitor its interest is in the Clinic's charging high prices, but as a buyer its interest is in the Clinic's charging low prices. Damages to Compcare are windfalls to Blue Cross, and vice versa. The damages awarded by the jury to the two plaintiffs (since they are economically one entity) should have been netted against each other rather than aggregated.
22
But that is a detail, since Compcare, for the reasons discussed earlier, was not entitled to recover any damages at all. Forget Compcare, then, and think of Blue Cross solely as a purchaser of medical services. Insofar as it paid high prices because the Marshfield Clinic was a monopolist, its claim must fail because the Clinic was not shown to be an illegal monopolist; a lawful monopolist can charge what it wants. But Blue Cross also claims that the Clinic colluded with competitors to raise prices above competitive levels. That claim is independent of the Clinic's being a monopolist.
23
Two forms of collusion are charged, with various furbelows and arabesques that can be ignored. The first is collusion between the Clinic and its affiliated (as distinct from employed) physicians. Here the tension between the two plaintiffs' cases again comes to the surface, since it will be recalled that Compcare in its case treats the affiliated physicians as a part of the Clinic, and a firm cannot collude with itself. Forget all that; the only evidence of collusion is that the Clinic, when buying services from the affiliated physicians either directly or through Security, would not pay them more than what these physicians charge their other patients. This is said to put a floor underneath these physicians' prices, since if they cut prices to their other patients their reimbursement from the Clinic will decline automatically. This is an ingenious but perverse argument. "Most favored nations" clauses are standard devices by which buyers try to bargain for low prices, by getting the seller to agree to treat them as favorably as any of their other customers. The Clinic did this to minimize the cost of these physicians to it, and that is the sort of conduct that the antitrust laws seek to encourage. It is not price-fixing. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., --- U.S. ----, ---- - ----, 113 S. Ct. 2578, 2589-90, 125 L. Ed. 2d 168 (1993); Hospital Corp. of America v. FTC, 807 F.2d 1381, 1392 (7th Cir.1986); Ball Memorial Hospital, Inc. v. Mutual Hospital Ins., Inc., supra, 784 F.2d at 1338. Perhaps, as the Department of Justice believes, these clauses are misused to anticompetitive ends in some cases; but there is no evidence of that in this case.
24
The other form of collusion alleged is more troublesome. The Clinic is said to have agreed with some of its competitors, in particular the North Central Health Protection Plan, an HMO that had 37,000 subscribers, to divide markets, a practice that violates section 1 of the Sherman Act. Palmer v. BRG of Georgia, Inc., 498 U.S. 46, 111 S. Ct. 401, 112 L. Ed. 2d 349 (1990) (per curiam). The analogy between price-fixing and division of markets is compelling. It would be a strange interpretation of antitrust law that forbade competitors to agree on what price to charge, thus eliminating price competition among them, but allowed them to divide markets, thus eliminating all competition among them.
25
The charge of a division of markets in this case is backed up by some pretty strong documents. In one of them an executive of the Marshfield Clinic, after noting that "at the time in which management of Marshfield Clinic and North Central Health Protection Plan established the Free Flow arrangements, the parties involved purposely chose not to place in writing clear descriptions of their respective Plan service areas so as to minimize any risk in terms of violation of antitrust laws," remarks that some years ago physicians affiliated with the NCHPP "wished to establish a practice in Marshfield and we took the position that the Free Flow agreement did not support that activity"--and they backed off. The implications of this only slightly Aesopian wording are backed up by statistics showing that Security had fewer than 30 percent of the HMO subscribers in the two counties in which NCHPP was active, while in the counties surrounding those two counties on three sides it had more than 90 percent of the HMO subscribers.
26
We think the evidence of a division of markets, though a little scanty, was sufficient to sustain the jury's verdict on this (and only this) aspect of the case--provided this is not one of those cases in which a division of markets or other cartel-like activity is actually essential to the provision of a lawful service. Broadcast Music, Inc. v. Columbia Broadcasting System, Inc., 441 U.S. 1, 99 S. Ct. 1551, 60 L. Ed. 2d 1 (1979); National Collegiate Athletic Ass'n v. Board of Regents, 468 U.S. 85, 104 S. Ct. 2948, 82 L. Ed. 2d 70 (1984); General Leaseways, Inc. v. National Truck Leasing Ass'n, 744 F.2d 588 (7th Cir.1984). The "Free Flow" agreement to which the document from which we quoted refers was an agreement whereby Security's physicians and NCHPP's physicians could refer patients to each other without getting the permission of their superiors. The plan of the physician who rendered the service would bill the other plan for its cost. This was no doubt a valuable service, expanding the range of physicians to whom people enrolled in these two HMOs could turn. But the Clinic has failed to explain why, to provide this service, it was necessary for the two plans to agree not to open offices in each other's territories. We can imagine an argument that would run as follows: if NCHPP, say, opened an office in Marshfield, the doctors staffing that office would constantly be referring patients to the Clinic because it has such a plethora of doctors in Marshfield (remember that it employs all the doctors working in that town). The office would be running a referral business, "free riding" on the reputation and quality of Marshfield's doctors, and perhaps it would be difficult to devise a reimbursement plan under which these doctors would be compensated for these services. It is not a bad argument, but it is not made by the Clinic and it has no support in the record.
27
We conclude that the jury verdict on liability must stand insofar as the charge of a division of markets is concerned, and therefore the provisions of the injunction (IV(A)(3), (B)(3), (C)(3), (D)(3), and (E)(2), and V(D)(1)--and possibly others; but for the sake of clarity and completeness the injunction ought to be rewritten from scratch in light of our invalidating most of it) that forbid the Clinic to divide markets with competing plans or groups. The rest of the injunction falls with the charges that we have held to be without legal or factual basis. No part of the award of damages or of costs and attorneys' fees can stand, because these items were not segregated by offense. There must be a new trial limited to damages for dividing markets. The burden will be on Blue Cross to show how much less it would have paid the Clinic had the Clinic refrained from that illegal practice.
28
We have not discussed every contention of the parties, but have said enough to indicate the basis for our decision. As a detail, we urge the bench and bar of this circuit not to imitate the special verdict on liability that went to the jury in this case. The verdict form contained 18 questions. If the jury wanted to find for the plaintiff on every contested point, all it had to do (and all it did do) was write "yes" 18 times. A verdict so configured, like a plea colloquy in which the answer that the defendant is expected to give to every one of the judge's questions is "yes," Castillo v. United States, 34 F.3d 443, 445 (7th Cir.1994), invites rote answers rather than the careful consideration of the structure of the plaintiff's case that the use of a special verdict is intended to foster. Cf. W.T. Rogers Co. v. Keene, 778 F.2d 334, 346 (7th Cir.1985). None of the purposes ascribed to the giving of a special verdict, Stewart & Stevenson Services, Inc. v. Pickard, 49 F.2d 635, 644 (11th Cir.1984); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Sec. 2508 (1995), of which probably the most important is to minimize the likelihood or scope of a retrial in a case in which there is more than one independent ground for recovery, are served by a verdict form that does not invite the jurors to use their heads. Given the broad discretion of the trial judge in the formulation of special verdicts, e.g., Hibma v. Odegaard, 769 F.2d 1147, 1157 (7th Cir.1985), and the fact that no objection was made to the form employed here, we do not suggest that this form would have constituted reversible error if the point had been argued; we merely offer for what it is worth our belief that it is not the best possible form, because it does not force the jurors to think before filling it out.
29
The judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. Costs on appeal to the appellants.
30
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2097204/ | 22 N.J. 482 (1956)
126 A.2d 323
E. JAY FERDINAND AND PHYLLIS C. FERDINAND, PLAINTIFFS-RESPONDENTS,
v.
AGRICULTURAL INSURANCE COMPANY OF WATERTOWN, NEW YORK, A CORPORATION, DEFENDANT-APPELLANT.
The Supreme Court of New Jersey.
Argued October 1, 1956.
Decided November 5, 1956.
*484 Mr. George I. Janow of the New York Bar argued the cause for the appellant (Mr. Samuel Dreskin, attorney and of counsel).
Mr. Frederick C. Vonhof argued the cause for the respondents (Mr. Albert M. Neiss, attorney).
The opinion of the court was delivered by VANDERBILT, C.J.
This is an appeal from the judgment of the Appellate Division of the Superior Court affirming the judgment of the Law Division, entered by the direction of the trial court in favor of the plaintiffs when the defendant rested without offering any testimony at the end of the *485 plaintiffs' case. We granted certification, 21 N.J. 550 (May 21, 1956).
The action was brought to recover $11,775 under a jewelry-fur floater policy issued by the defendant insurance company to the plaintiffs. Seven of the ten items of jewelry covered by the policy were allegedly stolen from the plaintiffs' automobile while parked overninght at a motel in Dancia, Florida. The jewelry was specifically described in a schedule attached to the policy and a dollar value was set opposite each item. A jewelry expert had appraised five of the seven lost articles of jewelry in 1953 for the purpose of obtaining the insurance. The values set forth for these items in the policy are the values as they appeared on the written appraisal of the jewelry expert made at that time. The policy was issued May 4, 1953 and provided that the property was insured "against all risks of loss or damage * * * while in all situations" with certain exceptions which have no material bearing on the issue before us.
The plaintiffs' case consisted of their own testimony and that of a jewelry expert and a deputy sheriff of the county where the alleged robbery took place. The plaintiffs' testimony was uncontroverted. They established that on February 12, 1954 they left their home in Millburn, N.J., on a trip to Florida and that they arrived in Dancia on the evening of February 14. There they stopped at the Suburban Motel, parked their car about 40 or 50 feet from the window of their room, locked it and retired for the night at about 10 P.M. The following morning, at about 8 A.M., the plaintiff E. Jay Ferdinand went to the car and discovered that a hole about 3 inches in diameter had been broken in the right-hand front window, large enough for someone to reach inside and release the lock. The contents of the car were "upset and disarrayed." Their jewelry case had been ripped apart and some of it was on the front seat and some on the floor. The contents had been dumped and strewn about. He called to his wife and then ran to the motel office to tell them what had happened and to call the police. A deputy sheriff responded to the call and *486 proceeded to make an investigation and it was then discovered, in addition to the damage already noticed, that the bottom of the glove compartment in the car had been torn out. While the deputy sheriff was there, this plaintiff took a camera from the trunk of the car and took photographs of the interior of the car and of the broken window. These photographs were received in evidence.
The testimony of the plaintiffs regarding the condition of the car was substantially corroborated by that of the deputy sheriff who responded to the call and by the photographs taken by the plaintiff.
The defendant cross-examined the plaintiffs extensively with respect to their direct testimony concerning the events of the alleged robbery and also with respect to the purchase of the jewelry. We refer only to those facts amplified on cross-examination that have aroused our doubts.
On the night previous to the alleged robbery, Mr. Ferdinand testified that he put his $400 gold "Jules Jergenson" wristwatch into the jewelry box and then returned the box to the rear seat of the car before retiring. From the testimony the watch apparently stayed in the box along with the other jewelry all the next day and was left there on the rear seat of the car, while he and his wife slept at the motel in Dancia.
The thief was seemingly a person of discriminating tastes. In the dark of the night he or she took time to select the most valuable pieces of jewelry leaving the less valuable items of costume jewelry virtually intact, only disarrayed.
Subsequent to the event the plaintiffs were interviewed in Florida by a representative of the insurance company. During the course of that interview they signed a statement indicating that they didn't "believe" that "any of the inexpensive costume jewelry [was] missing"; that "nothing [was] taken that was uninsured;" and that they did not "own any valuable articles of jewelry not involved in the loss." At the trial they testified that after they returned home, they discovered some of the costume pieces were missing and some valuable pieces which were not insured were gone. It also appeared that another of the statements made by the *487 plaintiffs to the insurance company was inaccurate; the policy covered ten items of jewelry and only seven of them are claimed to have been stolen.
Other facts also appear which, when considered with these circumstances, raise doubts. The plaintiff E. Jay Ferdinand has had some legal training. He had worked as an adjuster for various insurance companies and also as a jewelry salesman. He was also an insurance broker and in fact was also the agent who wrote the policy under which he is now claiming. He testified that he had no knowledge of what evidence would be necessary to prove his loss, nevertheless he undertook to document the physical conditions with the camera he carried in his car trunk. His experience could have dictated, after a more mature reflection, that his original story to the insurance company representative that nothing but insured pieces were taken was somewhat incredible and that it would be more believable if some of the other pieces of jewelry, valuable or costume, were taken.
Further, it appears that all the insured jewelry that was taken was purchased for cash or taken in trade for other jewelry, without receipt and some of it from peddlers on the Bowery in New York City.
The same jewelry expert who had given the appraisal upon the inception of the policy testified as to the value of the jewelry at the time of the issuance of the policy and at the time of the loss. This testimony likewise remained uncontroverted.
At the conclusion of the plaintiffs' case, the defendant rested without offering any evidence. The trial judge denied the plaintiffs' motion for a judgment in their favor as a matter of law under R.R. 4:51 (a directed verdict), and said he would let the case go to the jury. He then recessed for luncheon. When the court reconvened, he stated that during the noon recess he had reviewed the testimony and wished to hear further argument on the plaintiffs' motion for a directed verdict. Thereafter, in rendering an oral opinion in which he held that the plaintiffs were entitled to a judgment for $11,775 and interest, he said:
*488 "I find from the evidence in this case that there is nothing from which a jury could draw a reasonable inference that the plaintiff did not own the seven specific articles claimed to have been stolen.
I further find there is nothing in the evidence which would permit the jury to draw a reasonable inference that the articles were not stolen from the automobile on the night of February 14 or the morning of February 15 and there is no evidence from which a jury could draw a reasonable inference that the values testified to by the plaintiff Mr. Ferdinand, or by an independent witness, Mr. Kerber, was other than that stated."
The Appellate Division of the Supreme Court affirmed, 40 N.J. Super. 1 (1956), holding that "there were no facts or circumstances from which a jury could draw an inference" that the jewelry was not stolen, that "from the uncontroverted proofs the trial court quite properly directed a verdict in the plaintiffs' favor," and that "there was no evidence nor inference to be drawn from the proven facts upon which a jury verdict in favor of the defendant could have been based" and that "any verdict in favor of the defendant would necessarily have been bottomed solely upon mere conjecture or hypothesis not supported by the evidence, and if such a verdict had been rendered, the court would have been justified in setting it aside and entering a judgment for the plaintiffs."
True it is that there were no conflicting inferences which could be drawn from the facts as they were testified to by the plaintiffs and their witnesses. But we cannot agree that a verdict in favor of the plaintiffs here is the inevitable result.
An inference is a deduction or conclusion that can be drawn only from a premise established by the proofs in the case, State v. Harrington, 87 N.J.L. 713, 716 (E. & A. 1915), Chambers v. Hunt, 18 N.J.L. 339, 354-5 (Sup. Ct. 1841), Bouvier's Law Dictionary (Baldwin's ed. 1926) 545.[1] The uncontradicted testimony and proofs here would indicate that the plaintiffs' insured jewelry was in their jewelry case locked in their car, that someone broke the window of the car near the lock switch, someone disarrayed the contents including the jewelry case and that some of the pieces of jewelry in the case were missing. The obvious *489 inference dictated by these facts is that the plaintiffs' insured jewelry was taken from the plaintiffs. Any doubt of that as the ultimate fact must come about only as a result of disbelief or of a failure of the stories told to persuade because they are credibly unconvincing, and not as a result of any conflicting inferences drawn from the proofs that the facts are other than as related. That doubtful condition results in a failure of proof rather than in the establishment of the claim and then a defeat of it by the existence of ultimate factual circumstances other than as indicated by the testimony, see 9 Wigmore on Evidence (3d ed.), section 2487, pp. 278-280. The only factual possibilities other than as narrated by the plaintiffs are that the insured jewelry was not stolen, even though there was an actual theft of something from the car or at least an unlawful entry of the car by someone, or that a taking of the insured jewelry actually occurred but was perpetrated by the plaintiffs themselves or by someone acting in collusion with them. But these are not inferences that could be drawn from the facts in the record because there is absolutely no evidence that could reasonably give rise to such conclusions. In theory then, and purely so, if the jury here should have returned a verdict based upon one of these other definite possibilities it would have been improper and based upon pure conjecture; but if the matter had been submitted to the jury and it returned a verdict for the defendant because it had not been persuaded of the plaintiffs' claims, we see no basis for error in the circumstances of this case. The crux of the case lies, therefore, in the realm of credibility are the plaintiffs telling the truth and are they to be believed in what they say? As we will subsequently demonstrate, in certain circumstances the jury must be given the opportunity to determine the genuineness of the plaintiffs' claim generally on the basis of credibility, while in other instances it is for the court to do so, not as a matter of law as has so often been said, but as a matter of reason and logic.
The simple questions thus to be resolved are (1) When is it for the jury alone to evaluate the credibility of the *490 plaintiffs and their witnesses and when is it within the province of the trial court to do so; (2) and in the circumstance here was the action of the trial judge proper?
The plaintiffs in support of their judgment urge that when, as here, all the material evidence is uncontroverted and such evidence reasonably permits of but one conclusion, namely, that they were the owners of the jewelry in question, that it was lost under felonious circumstances covered by the policy and that it was worth what they claimed, then they have susained their prima facie burden of proof and without more from the defendant are entitled to a judgment, citing R.R. 4:51, Mortgage Corp. of N.J. v. Aetna Cas. & Surety Co., 19 N.J. 30, 40 (1955), Yannuzzi v. U.S. Casualty Co., 19 N.J. 201, 212 (1955). Their assertion cannot be considered as an erroneous expression of the rule of law, but it has no application in the facts of this case.
In support of the appeal, the defendant urges that the testimony offered by the plaintiffs, though uncontroverted, was not conclusive because the testimonial trustworthiness of the witnesses, i.e. their credibility, was in issue and therefore a matter for the jury and not for the court to decide. It also contends in this case particularly, where all of the facts were peculiarly and exclusively within the sole knowledge of the plaintiffs, the court was required to submit the case to the jury, else policyholders could recover in every case where the insurance company lacked knowledge of the facts. The defendant cites in support of its position Bowen v. Healy's Inc., 197 A. 655 (Sup. Ct. 1938) (not officially reported), where the court said at page 658:
"It must always be apprehended that it is preeminently the mission of the jury to resolve the credibility of the testimony of the witnesses; * * *."
Ravitz v. Chirelstein, 135 N.J.L. 5 (Sup. Ct. 1946), where the court stated on page 7:
"Evidence is not necessarily conclusive because uncontradicted. Where the particular circumstances reasonably give rise to conficting *491 inferences as to testimonial trustworthiness, the evidence is not conclusive merely because it is uncontradicted by direct testimony."
and Koch v. La Porta, 30 N.J. Super. 388 (App. Div. 1954), where it was said at page 391:
"Defendant maintains that there being no direct contradiction of his testimony that the light was on at 1:30 A.M., the court was bound to accept this as the fact. That is not the law. Evidence, though uncontradicted, is still for the jury where reasonable minds may entertain different views as to its truth."
It might also have cited the more recent officially reported case of Syle v. Freedley, 27 N.J. Super. 461, 468 (App. Div. 1953), which has language similar to that in the Bowen case, supra.
It relies in large measure on Samuels v. The Mercantile Insurance Company, an unreported case in the Appellate Division of the Superior Court, decided July 29, 1955, about one year before its decision in the present case. That case involved a claim for the insured value of a ring that was allegedly stolen from the plaintiff's house. The issues related to ownership and to whether the ring was lost or stolen. The case went to the jury on those two issues, and it found, against the plaintiff, that the ring was not lost or stolen. The plaintiff's contention on appeal was that his testimony as to the loss of the ring was not contradicted and therefore the court should have taken the case from the jury on that issue. The Appellate Division affirmed the judgment holding the issue was properly submitted to the jury. But in the Samuels case the record revealed several contradictions in the plaintiff's testimony and sharp conflict between the testimony of the plaintiff and others who testified, which were sufficient bases for the drawing of conflicting inferences, quite a different situation from that which confronts us here where the plaintiffs' evidence is not only uncontradicted but not conflicting within itself. In the Samuels case the issue was, therefore, unquestionably for the jury to *492 determine, Bachman Choc. Mfg. Co. v. Lehigh Wrhse & T. Co., 1 N.J. 239 (1949), Earlin v. Mors, Id., at 336 (1949), and as authority it is therefore of little help to the defendant here. But while we have no quarrel with the result of the Samuels case, we nevertheless question the broad rule it announced for all cases such as this. It was there declared:
"The subject matter of the testimony was entirely within the control of the plaintiff and the opportunity to have the jury pass upon the credibility was the only protection that the defendant could have against a fraudulent claim. If an insured decides to make easy money by hiding, pawning or selling his jewelry and then claim insurance for it, the insurer can only hope that his demeanor on the witness stand will betray his purpose to the jury. In such a case the insurer should not be deprived of this protection on the ground that the testimony of the insured is uncontradicted."
The court there cited and relied for the statement of this broad rule on Schmidt v. Marconi Wireless Tel. Co., 86 N.J.L. 183 (E. & A. 1914), where the Court of Errors and Appeals adhered to the view that unless the existence of a fact is admitted, it must, in every case where a jury sits, be for them to decide. In the Schmidt case, where John W. Griggs, a former governor of New Jersey, testified to facts which were not contradicted, the court said at page 186:
"It cannot therefore be said that, by his failure to controvert it, he impliedly admitted its truth. Of course the testimony of a man whose character for truth and integrity is so universally known as that of Governor Griggs would always be accepted as a correct recital of the facts spoken to as he remembered them. But it will hardly do to say that the character of a witness is the determining factor upon the question whether the facts testified to by him shall be determined by the court or by the jury. It cannot be that, where the character of the witness for truth and veracity is known by the court to be unimpeachable, the facts sought to be established by his testimony are to be determined by the court, but that where, in the judgment of the court, the witness is not entitled to full faith and credit, the facts sought to be proved by him must be determined by the jury. No such rule of evidence exists. In every case where the issue depends upon the determination of facts the existence of which is not admitted, the jury, and not the court, must determine them."
*493 Unquestioning adherence to the ancient doctrine, ad quaestionem facti non respondent judices, ad quaestionem juris non respondent juratores, Co. Lit. 155b, that all questions of fact are for the jury in every case is the result of a failure to recognize the progress that has come about in our common-law system. The evolution of the common-law jury trial has been away from the early doctrine, and has developed to the point where we require the determination by the jury only of the existence or nonexistence of those facts in issue as to which the minds of reasonable men might differ in the application of their mental processes to the evidence. Therefore, when the proof of a particular fact is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist there is no question for the jury to decide. Likewise, when the proof on a question of fact is so strong as to admit of no reasonable doubt as to its existence, again, there is no question for the jury to decide. In both these cases the court must make the determination and advise the jury accordingly, Haines v. Merrill Trust Co., 56 N.J.L. 312, 313-314 (E. & A. 1893); 9 Wigmore on Evidence (3d ed.), sections 2494, 2495.
The efficiency of our modern trials is determined in large measure by the extent of the judge's authority in relation to the jury. The quest for justice must be carried out under the guiding hand of the judge. His power to control the conduct of the case, to comment on the evidence and in appropriate cases to direct the verdict dictated by the evidence became essential parts of the jury trial as it evolved from the early common law and these features must be protected and nurtured if our living and dynamic legal system is to continue in its present greatness and grow greater, 1 Holdsworth, History of English Law (3d ed. 1922), 345; Thayer, Preliminary Treatise on Evidence (1898), c. 5, pp. 183-262, 9 Wigmore on Evidence (3d ed.), 278. Professor James B. Thayer, in "Law and Fact in Jury Trials," 4 Harv L. Rev. 147, 169 (1890) concludes:
*494 "It seems, then, to be thoroughly plain that the attributing to the jury of questions of fact, in our common-law system, is to be taken with the gravest qualifications. Much fact which is part of the issue is for the judge; much which is for the jury is likely to be absorbed by the judge, `whenever a rule about it can be laid down.' [Tindal v. Brown, 1 T.R. 167, per Lord Mansfield Holmes' Com. Law, 122-9.] As regards all of it, the jury's action may be excluded or encroached upon by the cooperation of the judge with one or both of the parties; and, as regards all, the jury is subject to the supervision of the judges in order to keep it within the limits of reason."
Thus, we question the wisdom of such a broad rule as is expounded in Schmidt v. Marconi Wireless Tel. Co., supra, 86 N.J.L. 183 (E. & A. 1914), and by the Appellate Division in the Samuels case, supra. Where men of reason and fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted, uncontroverted or even undisputed, evidence of such a character is for the jury, Koch v. La Porta, 30 N.J. Super. 388, 391 (App. Div. 1954); Cetofonte v. Camden Coke Co., 78 N.J.L. 662, 27 L.R.A., N.S. 1058 (E. & A. 1910); In re Perrone's Estate, 5 N.J. 514, 522 (1950); cf. Hoffman v. Lasseff, 110 N.J.L. 122 (E. & A. 1933); Dooley v. Saunders U-Drive Co., 109 N.J.L. 295 (E. & A. 1932); Patterson v. Surpless, 107 N.J.L. 305 (E. & A. 1930); Doran v. Thomsen, 76 N.J.L. 754 (E. & A. 1908); Kirrer v. Bromberg, 113 N.J.L. 98 (Sup. Ct. 1934). But when the testimony of witnesses, interested in the event or otherwise, is clear and convincing, not incredible in the light of general knowledge and common experience, not extraordinary, not contradicted in any way by witnesses or circumstances and so plain and complete that disbelief of the story could not reasonably arise in the rational process of an ordinarily intelligent mind, then a question has been presented for the court to decide and not the jury. Mortgage Corp. of N.J. v. Aetna Cas. & Surety Co., 19 N.J. 30 (1955); Ocean Accident & Guarantee Corp., Ltd. v. Lincoln National Bank, 112 N.J.L. 550, 553 (E. & A. 1934); cf. Venghis v. Nathanson, 101 N.J.L. 110 (E. & A. 1925); Tischler v. *495 Steinholtz, 99 N.J.L. 149 (E. & A. 1923); Mahan v. Walker, 97 N.J.L. 304 (E. & A. 1922); McCarthy v. Metropolitan Life Ins. Co., 75 N.J.L. 887 (E. & A. 1908). In this process credibility is but one of the elements upon which the mind must work in the determination of the final result. The same reasoning process is used in reaching an opinion as to credibility as is used in arriving at any other opinion or judgment by the court and there, therefore, appears to be no good reason for denying to the court the right to apply its judgment to that issue in the ultimate determination of the result. Credibility in such a case is not a matter for the jury. The power to reach an opinion as to credibility is given to the court in upsetting a verdict at common law and restated in the form of rules in R.R. 1:5-3(a), R.R. 3:7-11(b), and it surely should have the same power in the analogous situation where the circumstances call for a direction of a verdict. In each situation the rule that must prevail is one of reasonable judgment applied to the particular facts of the case.
The matter has not been better discussed than by Judge Dwight Campbell in Jerke v. Delmont State Bank, 54 S.D. 446, 223 N.W. 585, 72 A.L.R. 7, 16-19 (Sup. Ct. 1929). 9 Wigmore (3d ed.) 306. The question is so important as to justify quotation at some length:
"* * * The existence or nonexistence of ultimate issuable facts must be determined from the evidence produced in court, whether the determination is made by a judge or by a jury, by a process of rationalization and judgment, and by the application of the thinking faculties of the human mind to the evidence. * * *
* * * Before there is anything for submission to a jury, the evidence offered as to the ultimate facts must be such that the application of normal intellectual faculties thereto might by the customary and normal processes of reasoning arrive at different judgments or conclusions.
* * * * * * * *
If reasonable minds could arrive at but one conclusion from the evidence, by applying their intellectual processes thereto, then the question as to whether the party having the burden of proof has established the issuable facts in that particular case is a question to be decided by the judge, and not by the jury, and it is probably a mere matter of phraseology and definition of terms in such a case *496 whether we say, as a matter of language, that it then becomes a question of law for the court, or whether we say that, being a question of fact upon which reasonable minds could not differ, it is such a question of fact as will be decided by the judge, and not by the jury, though undoubtedly the latter phrasing is more accurate.
* * * * * * * *
* * * the entry of the factor of credibility, * * * can make no difference in the operation of the fundamental principle which necessarily underlies the direction of verdicts in all cases. The question of whether reasonable minds could arrive by reasoning processes at more than one opinion or conclusion is always a question for the judge.
* * * * * * * *
Pursuing the matter somewhat further, we come to the precise question involved in the instant case, where the party having the burden of proof depends for establishing the existence of the ultimate fact, either in whole or in part, upon the oral testimony of a witness who is interested in the transaction.
The answer to this question does not state any rule of law, but merely announces a determination of logic or reason. The only rule of law involved is that which announces that the judge will determine the matter without the assistance of the jury, when reasonable minds applied to the evidence could properly come to but one conclusion. * * *
Our question further narrows to this then: Ought a judge to say, as a matter of reason and judgment, that the mere fact that a witness is interested in the matter in controversy, in and of itself, without regard to other circumstances of the case, makes it reasonable to disbelieve or to fail to believe his testimony, in the light of general human experience? We do not believe that any court has gone so far as to lay down any such doctrine, or enunciate any such general principle, whether it be viewed as a matter of law, or as a matter of logical rationalization. The sound view seems to us to be this: That each case must depend upon its own facts, and that the mere fact of interest in the controversy does not, in and of itself, and apart from other circumstances appearing in the case, render it a reasonable thing to disbelieve the testimony of a witness whom otherwise it would be unreasonable to disbelieve, and this, we think, is the established practice of the great majority of courts."
Wigmore in his Treatise on Evidence (3d ed.), volume 9, section 2495, pp. 305-6, supra, states the rule as follows:
"That a verdict may also be directed for the proponent is accepted by the majority of Courts, though it is more plausibly open to dispute. The usual situation is that of a plaintiff who has produced a mass of evidence sufficient to throw upon the defendant the liability of producing some evidence to the contrary, and if this *497 duty is not sustained, it is the judge's function to make the decision. The only objection here can be that the judge must not reach his decision by assuming the plaintiff's testimony to be true (because that is the jury's province); yet where the testimony is undisputed, or where in some other way that assumption is unnecessary, this objection disappears. A less common situation is that of a defendant having an affirmative plea (for example, payment of a note, or contributory negligence in personal injury); but here also a verdict may be ordered for the defendant, provided the result can be reached upon undisputed testimony of the defendant, or upon testimony of the plaintiff, which the latter must concede to be true."
The right of a party to have his uncontradicted testimony given conclusive effect has been the subject of no small consideration by the courts of this country, 88 C.J.S., Trial, sections 213-215; 53 Am. Jur., Trial, sections 300, 357, 359; see also annotations in 8 A.L.R. 796, 814, 72 A.L.R. 27. It has also been the subject of no small amount of confusion in the law; see the cases collected under the notes in 72 A.L.R. 27, 32, 40. While the semblance of a general rule is recognizable to the effect that such testimony does not conclusively establish the facts testified to because it is said that the credibility of such a witness presents a question for jury consideration, it has been the subject of so many overriding exceptions as to make it almost totally worthless as a rule of even the most general application. In the cases this rule is stated many times but generally not applied except in those instances where the testimony, while not actually contradicted, is, nevertheless, infected with the same elements it is inconsistent with natural probabilities, extraordinary or incomplete the absence of which should be grounds for a direction of a verdict and is consequently subject to some suspicion and doubt. A cogent example of this situation is found in Second National Bank of Hoboken v. Smith, 91 N.J.L. 531, 537 (E. & A. 1917), where reliance was had on Schmidt v. Marconi Wireless Tel. Co., supra:
"The credibility of a witness is for the jury. Clark v. Public Service Electric Co., 86 N.J.L. 144. And where the issue depends upon facts the existence of which is not admitted, even though *498 testified to by a credible witness who is unchallenged, the question is for the jury. Schmidt v. Marconi Wireless Tel. Co., 86 N.J.L. [183] 186."
But when this case is carefully examined it is obvious that it is one where the evidence, though undisputed, was such that the inferences to be drawn from it were in doubt and that fair-minded men could differ as to the conclusions dictated by the facts so presented.
The great number of cases, however, incline to the more flexible view expressed by us here, that where the uncontradicted testimony of a witness, interested or otherwise, is unaffected by any conflicting inferences to be drawn from it and is not improbable, extraordinary or surprising in its nature, or there is no other ground for hesitating to accept it as the truth, there is no reason for denying the verdict dictated by such evidence, Jerke v. Delmont State Bank, supra; McNabb v. Virginian Ry. Co., 55 F. 137, 138 (4 Cir. 1932); Crilly v. Fitzsimmons, 73 S.D. 646, 48 N.W.2d 62 (Sup. Ct. 1951); Grover v. Bach, 82 Minn. 299, 84 N.W. 909 (Sup. Ct. 1901); Goedhard v. Folstad, 156 Minn. 453, 195 N.W. 281 (Sup. Ct. 1923); Marks v. New Orleans Cold Storage Co., 107 La. 172, 31 So. 671, 57 L.R.A. 271 (Sup. Ct. 1902); Edelen v. First National Bank of Hagerstown, 139 Md. 413, 115 A. 599 (Ct. App. 1921); Boudeman v. Arnold, 200 Mich. 162, 166, 166 N.W. 985, 8 A.L.R. 789 (Sup. Ct. 1918); Hull v. Littauer, 162 N.Y. 569, 57 N.E. 102 (Ct. App. 1900); see also 88 C.J.S., Trial, section 215, p. 496, and the annotations in 72 A.L.R. 36-40 and 8 A.L.R. 818, 819, 824-827; for some contrary views see Sartor v. Arkansas Nat. Gas Co., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967, 973 (1944), and Bobbe, "The Uncontradicted Testimony of an Interested Witness," 20 Corn. L. Rev. 33 (1934).
The development of the law in New York in this field parallels our experience here to a degree. There the cases sought to establish an inflexible rule that uncontradicted testimony of an interested witness involved, per se, a question of credibility, of fact, and therefore was to be determined *499 by a jury in every case where one sat, Elwood v. Western Union Telegraph Co., 45 N.Y. 549 (Ct. App. 1871); Kavanagh v. Wilson, 70 N.Y. 177 (Ct. App. 1877); Wohlfahrt v. Beckert, 92 N.Y. 490 (Ct. App. 1883); Sipple v. State, 99 N.Y. 284, 1 N.E. 892, 3 N.E. 657 (Ct. App. 1885); Joy v. Diefendorf, 130 N.Y. 6, 28 N.E. 602 (Ct. App. 1891). But in Hull v. Littauer, supra, 162 N.Y. 569, 572, 57 N.E. 102 (Ct. App. 1900), the Court of Appeals took a more reasonable view, which substantially diluted the strength of these former authorities in favor of the rule of reason and experience adopted in the instant case. The court there said:
"Generally, the credibility of a witness who is a party to the action, and therefore interested in its result, is for the jury; but this rule, being founded in reason, is not an absolute and inflexible one. If the evidence is possible of contradiction in the circumstances; if its truthfulness or accuracy, is open to a reasonable doubt upon the facts of the case, and the interest of the witness furnishes a proper ground for hesitating to accept his statements, it is a necessary and just rule that the jury should pass upon it. Where, however, the evidence of a party to the action is not contradicted by direct evidence, nor by any legitimate inferences from the evidence, and it is not opposed to the probabilities, nor, in its nature, surprising or suspicious, there is no reason for denying to it conclusiveness. Though a party to an action has been enabled, since the legislation of 1857 (Ch. 353, Laws of 1857), to testify as a witness, his evidence is not to be regarded as that of a disinterested person, and whether it should be accepted without question depends upon the situation as developed by the facts and circumstances and the attitude of his adversary."
See also Piwowarski v. Cornwell, 273 N.Y. 226, 229, 7 N.E.2d 111, 112 (Ct. App. 1937).
Turning now again to the case at bar, we find the evidence in the case before us does not meet the requisite tests for the direction of a verdict. The evidence causes too many pauses in the reasoning process. In the light of common human experience we find it hard to understand the circumstances in which the $12,000 worth of jewelry was purchased or why it should be left in an automobile unguarded overnight. We find it extraordinary that a man's *500 wristwatch should be placed in a jewelry case and left in an automobile for two nights and the intervening day with no other timepiece available to him. We find the acts of the alleged thief unnatural, too selective and too discriminating to be acceptable without some doubt. No thief except one peculiarly well informed would have lingered at the scene of his crime to make the highly favorable choice of booty that this one did, taking in the main only valuable pieces and carefully leaving the trinkets for the plaintiffs. We are of the opinion that a jury, fair-minded men, could honestly have differed as to whether or not the plaintiffs by their proofs had established a prima facie case in favor of their claim. While as in the Second National Bank of Hoboken v. Smith, supra, 91 N.J.L. 531 (E. & A. 1917), and Schmidt v. Marconi Wireless & Tel. Co., supra, 86 N.J.L. 183 (E. & A. 1914), we have here dealt with a case involving uncontradicted testimony as to which men of ordinary fairness and reason might differ in the conclusions to be drawn from it, unlike those cases we refuse to recognize the existence, in this State, of a hard and fast rule that the credibility of a witness is always a question for jury determination.
Judgment reversed and the matter remanded for a new trial.
HEHER, J., concurring in result.
For reversal Chief Justice VANDERBILT, and Justices HEHER, WACHENFELD, BURLING and JACOBS 5.
For affirmance None.
NOTES
[1] Rawle's Third Revision, p. 1562. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601632/ | 476 N.W.2d 48 (1991)
Gary W. FISHER, Appellee,
v.
IOWA BOARD OF OPTOMETRY EXAMINERS, Respondent,
State of Iowa, Appellant.
No. 90-755.
Supreme Court of Iowa.
October 16, 1991.
*49 Bonnie J. Campbell, Atty. Gen., Elizabeth M. Osenbaugh, Deputy Atty. Gen., and Rose A. Vasquez, Asst. Atty. Gen., for appellant.
John A. McClintock and David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellee.
Considered by McGIVERIN, C.J., and LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.
ANDREASEN, Justice.
The issue raised in this appeal is whether the State of Iowa is a party in a contested case proceeding before the Board of Optometry Examiners (board). After the board had issued its amended decision and order, the licensee filed a petition for judicial review in district court. The State, through the attorney general, filed a petition for intervention claiming it had a right to intervene in the proceeding. The district court denied intervention. We reverse.
I. Scope of Review.
This appeal involves intervention as of right. Therefore, we review the district court's denial of the petition for intervention on error. In re Estate of DeVoss, 474 N.W.2d 539 (Iowa 1991).
II. Factual and Procedural Background.
In September 1988, a statement of charges and disciplinary proceeding was brought against optometrist Dr. Gary W. Fisher by the board. The notice of hearing and statement of charges served upon Fisher advised him that the hearing would be presided over by the board which would be assisted by an administrative law judge (ALJ). The notice also named the assistant attorney general who would represent the State of Iowa. At the hearing before the board, the ALJ presided, the assistant attorney general prosecuted the case, and Fisher was represented by counsel. Following the hearing, the board filed its findings of fact, conclusions of law, decision and order. This order dismissed the charges filed by the board against Fisher.
Within twenty days after the board's decision, the assistant attorney general, who was present and prosecuted the case at the contested case hearing, filed an application for a rehearing on behalf of the State. See Iowa Code § 17A.16(2) (1989). Independent counsel was appointed to represent the board. The board, the ALJ, and the board's independent counsel reconvened in closed session. The board then issued an amended findings of fact, conclusions of law, decision and order. The order directed Fisher to cease certain examination procedures and placed his license to practice optometry on probation for a term of three years. Fisher sought judicial review of the amended decision of the board in district court. See Iowa Code § 17A.19.
The board, by its independent counsel, filed an answer to Fisher's petition for judicial review. The State, by a deputy attorney general and the same assistant attorney general present at the contested case proceeding, filed a petition for intervention. The State argued it had prosecuted the contested case before the board, and as a party of record in the contested case, it is entitled to intervene as of right pursuant to Iowa Code section 17A.19(2). The State also argued in the alternative that it is an "interested" person entitled to intervene under Iowa Rule of Civil Procedure 75. Fisher resisted the State's motion to intervene.
Following hearing on the State's petition, the court found:
All issues relative to the proceedings herein before the Iowa Board of Optometry can adequately and properly be briefed and argued by counsel for Gary Fisher and the Iowa Board of Optometry Examiners.... The court is not persuaded that the State of Iowa has an independent interest on behalf of "the people of Iowa" independent of a Board it represented through the Attorney General in the administrative agency. This court sees no useful purpose to be served by promoting a multiplicity in parties achieving a desired result where the purpose *50 and interests of those parties are or should be totally compatible.
We granted the State's request for interlocutory appeal. See Iowa R.App.P. 2.
III. Who is a Party in an Administrative Proceeding?
The Iowa Administrative Procedure Act (IAPA), Iowa Code ch. 17A, governs the conduct of contested case proceedings before the various agencies, boards and commissions of the State. The term "party" is defined in chapter 17A as "each person who is named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party." Iowa Code § 17A.2(6). The language "properly seeking and entitled as of right to be admitted as a party," is the key to this appeal.
We agree with the North Dakota Supreme Court that:
Generally, parties to an action or proceedings are set out in the title of the action of the proceedings. However, in matters before administrative agencies it is common to entitle the proceedings "IN THE MATTER OF ______." Such entitlement does not serve as an aid in determining who is a party, except for the applicant, on which there is no question. The question of who are the parties to the proceeding must be determined from the record rather than from the entitlement of the proceedings. The information as disclosed by the record constitutes the basis upon which a determination can be made as to who are parties to the proceedings.
Application of Bank of Rhame, 231 N.W.2d 801, 808 (N.D.1975).
Here, the administrative action was captioned, "In The Matter of The License to Practice as an Optometrist of Gary W. Fisher, O.D., Respondent." Yet, the actual prosecution of the case was handled by the attorney general's office, not by the Board of Optometry Examiners. See Hartwig v. Board of Nursing, 448 N.W.2d 321, 324 (Iowa 1989). The assistant attorney general made an opening statement, presented evidence, examined and cross-examined witnesses, and made a closing statement. Fisher's counsel also made an opening statement, presented evidence, examined and cross-examined witnesses, and made a closing statement. The board served as the fact finder and was advised on certain legal issues by the ALJ. This is the common posture of the participants in an administrative contested case licensure hearing. See Hartwig, 448 N.W.2d at 321. However, this posturing does not automatically confer the status of "party" upon the State of Iowa.
"In Iowa the attorney general has only the powers given to him by statute." Motor Club of Iowa v. Department of Transp., 251 N.W.2d 510, 513 (Iowa 1977). Such statute is to be found at Iowa Code section 13.2, which provides in pertinent part:
It shall be the duty of the attorney general, except as otherwise provided by law to:
....
2. Prosecute and defend in any other court or tribunal, all actions and proceedings, civil or criminal, in which the state may be a party or interested, when, in the attorney general's judgment, the interest of the state requires such action, or when requested to do so by the governor, executive council, or general assembly.
Furthermore:
An attorney general should not seek to perform his duty to represent a department of state government where the goals of the department conflict with what the attorney general believes to be the state interest. State officers and state departments of government deserve adequate legal representation. No representation can be adequate unless it is without conflicts on the part of counsel.
Motor Club, 251 N.W.2d at 515.
Iowa Code section 13.7 provides the statutory mechanism for appointing independent counsel.
When the attorney general determines that the department of justice cannot perform legal services in an action or *51 proceeding, the executive council shall request the department involved in the action or proceeding to recommend legal counsel to represent the department. If the attorney general concurs with the department that the person recommended is qualified and suitable to represent the department, the person recommended shall be employed.
Iowa Code § 13.7.
We think it clear that the combination of these statutes and case law allows the State, represented by the attorney general, to be or become a party in a contested case proceeding. First, the language in section 13.7, "[w]hen the attorney general determines that the department of justice cannot perform legal services in an action or proceeding," necessarily includes the situation where conflicts exist between what the attorney general believes to be the State's interest and what the board believes to be its own interest. Cf. Motor Club, 251 N.W.2d at 515. We also think it clear that the attorney general may determine that such a situation exists prior to the commencement of the contested case action or during the progress of the contested case. The determination of the existence of potential conflicts and the appointment of independent counsel alone, however, do not necessarily confer the status of "party" on the State.
After the attorney general makes the determination that a potential conflict exists and brings it to the attention of the board, either by appointing independent counsel or notifying the board and other parties in the proceeding, the State must take affirmative action in order that the status of "party" be conferred upon it. Section 17A.2(5) defines party as a "person... admitted ... or properly seeking and entitled as of right to be admitted as a party," thus requiring the affirmative action. The attorney general is permitted as of right to "prosecute ... in any ... tribunal... when, in the attorney general's judgment, the interests of the State requires such action." Iowa Code § 13.2(2). The affirmative action requirement is met when the attorney general either seeks to be admitted as a party by requesting recognition as such or proceeds as a party in the administrative action. The status of party is conferred because the State, through the attorney general, is "properly seeking and entitled as of right to be admitted as a party." Iowa Code § 17A.2(5).
Such was the case here. At the time the board rendered its initial decision, the assistant attorney general recognized that there was a conflict between the interests of the State and the interests of the board. Independent counsel was appointed for the board. The State, through the assistant attorney general, applied to the board for a rehearing pursuant to Iowa Code section 17A.16(2) ("any party may file an application for rehearing" (emphasis added)). The application was brought on behalf of the State of Iowa as it began, "Comes Now the State of Iowa, and pursuant to Iowa Code section 17A.16(2), applies for rehearing." The State became a party at the time the application for rehearing was filed because at that time the State was "properly seeking and entitled as of right to be admitted as a party." Iowa Code § 17A.2(5).
Permitting a party to apply for rehearing serves many of the same purposes as an Iowa Rule of Civil Procedure 179(b) motion. It allows the board to clarify or correct its decision and order. It promotes judicial economy. We think the purpose of the IAPA contested case proceedings are furthered by allowing the State to become a party and petition for a rehearing before the board rendering the decision.
At the time the State petitioned for a rehearing, its interest was independent of the board. As a party, the State could file an application for rehearing under section 17A.16(2). The State did not, and has not, lost its status as a party because the board amended its decision.
IV. Disposition.
It was error for the district court to deny the State's petition for intervention. The State became a party in the contested case proceeding and should continue to be recognized as a party upon judicial review.
*52 We reverse the district court's denial of intervention.
REVERSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645255/ | 40 So.3d 920 (2010)
Owen Lloyd TUCKER, Appellant,
v.
STATE of Florida, Appellant.
No. 5D10-1701.
District Court of Appeal of Florida, Fifth District.
July 30, 2010.
Owen Lloyd Tucker, pro se.
No Appearance for Appellee.
PER CURIAM.
ON ORDER TO SHOW CAUSE
Owen L. Tucker appeals from the denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence, challenging his sentence in Putnam County, Seventh Judicial Circuit Court case number 95-2003-CF-53. After reviewing Tucker's filings on appeal, and determining they are completely without merit, we issued a Spencer[1] show cause order directing Tucker to demonstrate "why he should not be denied further pro se access to this Court for any proceeding to further attack the convictions and sentences rendered below" in this case. Having carefully considered Tucker's response, we conclude that he is abusing the judicial process and should be barred from further pro se filings.
Therefore, in order to conserve judicial resources, we prohibit Owen L. Tucker from filing with this Court any further pro se pleadings concerning Putnam County, Seventh Judicial Circuit Court case number 95-2003-CF-53. The Clerk of this Court is directed not to accept any further pro se filings concerning this case. Any further pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) ("Enough is enough."). The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2007); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA 2005).
AFFIRMED; future pro se filings PROHIBITED; certified opinion FORWARDED to Department of Corrections.
SAWAYA, TORPY and LAWSON, JJ., concur.
NOTES
[1] State v. Spencer, 751 So.2d 47 (Fla.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598005/ | 818 So. 2d 572 (2002)
CHATFIELD DEAN & CO., INC., Appellant,
v.
David B. KESLER and The Offices of David B. Kesler, P.A., Appellees.
No. 2D98-4819.
District Court of Appeal of Florida, Second District.
March 15, 2002.
Rehearing Denied June 19, 2002.
John R. Ellis, Tallahassee, for Appellant.
Richard R. Logsdon, Clearwater, and Allan J. Fedor, Largo, for Appellees.
ON REMAND FROM THE SUPREME COURT OF FLORIDA
PER CURIAM.
This case is before us on remand from the Supreme Court of Florida. Kesler v. Chatfield Dean & Co., 794 So. 2d 577 (Fla. 2001) (Chatfield Dean II).
In this court's earlier decision, we determined that Kesler was not entitled to attorney's *573 fees arising out of an arbitration proceeding. Chatfield Dean & Co. v. Kesler, 749 So. 2d 542 (Fla. 2d DCA 2000) (Chatfield Dean I). We did so in reliance upon this court's decision in Barron Chase Securities, Inc. v. Moser, 745 So. 2d 965 (Fla. 2d DCA 1999) (Moser I). The supreme court subsequently quashed the Moser I decision. Moser v. Barron Chase Sec., Inc., 783 So. 2d 231 (Fla.2001) (Moser II). In turn, the supreme court likewise quashed and remanded this court's Chatfield Dean I decision "to the extent it is inconsistent with our ruling in Moser." Chatfield Dean II, 794 So.2d at 578.
In Moser II, the supreme court established that "to the extent that knowledge of the basis of an award is necessary for the subsequent determination of an entitlement to attorney's fees, an award without a basis is per se inadequate and subject to correction by the trial court." 783 So.2d at 237. The supreme court, in Moser II, was not presented with an issue concerning the time limits for seeking such a correction as had been raised, but not ruled upon, in the present case. Chatfield Dean I, 749 So.2d at 543 n. 1.
While Moser I and Chatfield Dean I were pending before the supreme court, this court rendered a decision addressing the propriety of a fee award in circumstances much like those of the present case, and found that it was time barred. NationsBanc Sec., Inc. v. Aron, 787 So. 2d 881 (Fla. 2d DCA 2001), review denied, 791 So. 2d 1094 (Fla.2001) (Table). In so doing, this court stated:
A party to an arbitration proceeding who wishes to enforce an award, but not exactly how it is written, may seek either modification or clarification from the panel. In the former instance, section 682.14 [Florida Statutes (1995) ] sets the time limit at ninety days. In the latter instance, section 682.10 [Florida Statutes (1995) ] sets it at twenty days after delivery of the award to the applicant.
Aron, 787 So.2d at 883-84 (footnote omitted). Thus, while an arbitration award which does not adequately indicate the basis upon which a party prevailed is subject to correction under Moser II, 783 So. 2d 231, those corrections must comply with the statutorily mandated time constraints explained in Aron, 787 So. 2d 881.
In the present case, the record reveals that counsel for Kesler received the arbitration award on March 6, 1996, and petitioned for confirmation of the arbitration award and for attorney's fees almost one year later, on March 3, 1997. The arbitration award submitted for confirmation contained a provision expressly denying attorney's fees and otherwise did not indicate whether Kesler had prevailed upon a statutory theory which would have supported an attorney's fee award. Thus, before the circuit court could have properly considered entitlement to attorney's fees during the confirmation proceeding, the arbitration award itself required correction or clarification. Kesler made neither a timely motion to modify or correct the arbitration award pursuant to section 682.14, Florida Statutes (1995), nor a timely application to the circuit court to seek a clarification pursuant to section 682.10, Florida Statutes (1995). Because the arbitration award was not timely revised, Kesler could not thereafter seek attorney's fees. See Aron, 787 So.2d at 883. Accordingly, we reverse the portion of the final judgment awarding attorney's fees.
Reversed and remanded for further proceedings consistent with this opinion.
WHATLEY, NORTHCUTT, and SALCINES, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598089/ | 190 Wis. 2d 139 (1994)
526 N.W.2d 778
STATE of Wisconsin, Plaintiff-Respondent,
v.
William E. SWADLEY, Defendant-Appellant.[]
No. 93-3387-CR.
Court of Appeals of Wisconsin.
Submitted on briefs September 14, 1994.
Decided December 8, 1994.
*140 For the defendant-appellant the cause was submitted on the briefs of Donald T. Lang, assistant state public defender.
For the defendant-respondent the cause was submitted on the brief of James E. Doyle, attorney general, and Mary V. Bowman, assistant attorney general.
Before Eich, C.J., Gartzke, P.J., and Dykman, J.
DYKMAN, J.
This is an appeal from an order denying William Swadley's postconviction motion seeking sentence credit for time he spent in home detention pursuant to § 302.425, STATS.[1] We conclude that Swadley is not entitled to sentence credit while in home detention, and therefore affirm.
Swadley was convicted of child enticement, contrary to § 948.07(1), STATS., and sentenced to prison for five years with credit for twenty-two days previously served in the Dane County jail. He requested additional sentence credit for the time he had been restricted to his parents' home under an electronic monitoring program. The trial court denied his request. Swadley appeals.
*141 [1]
To determine whether Swadley is entitled to sentence credit for time spent at home under electronic monitoring, we must construe §§ 302.425, 946.42 and 973.155, STATS. Statutory construction raises issues of law which are reviewed de novo. State ex rel. Frederick v. McCaughtry, 173 Wis. 2d 222, 225, 496 N.W.2d 177, 179 (Ct. App. 1992).
Sentence credit is authorized by § 973.155(1)(a), STATS., which reads in pertinent part: "A convicted offender shall be given credit toward the service of his or her sentence for all days spent in custody in connection with the course of conduct for which sentence was imposed." Swadley argues that he was "in custody" while on home detention, and therefore entitled to credit against his sentence for the time spent in his parents' house under the electronic monitoring program.
Sentence credit litigation is not new. In State v. Gilbert, 115 Wis. 2d 371, 378-79, 340 N.W.2d 511, 515-16 (1983), the supreme court determined that we should use the escape statute, § 946.42(1)(a), STATS.,[2] to determine whether a person is "in custody" for sentence credit purposes. That statute provides:
"Custody" includes without limitation actual custody of an institution, including a secured juvenile correctional facility, a secure detention facility, as defined under s. 48.02(16), or a juvenile portion of a county jail, or of a peace officer or institution guard and constructive custody of prisoners and juveniles subject to an order under s. 48.34(4m) temporarily outside the institution whether for the purpose of work, school, medical care, a leave granted under s. 303.068, a temporary leave or furlough *142 granted to a juvenile or otherwise. Under s. 303.08(6) it means, without limitation, that of the sheriff of the county to which the prisoner was transferred after conviction. "Custody" also includes the custody by the department of health and social services of a child who is placed in the community under corrective sanctions supervision under s. 48.533. It does not include the custody of a probationer or parolee by the department of corrections or a probation or parole officer or the custody of a person who has been released to aftercare supervision under ch. 48 unless the person is in actual custody.
Section 946.42(1)(a).
In State v. Cobb, 135 Wis. 2d 181, 183-85, 400 N.W.2d 9, 10-11 (Ct. App. 1986), we followed Gilbert, and adopted the analysis of the Wisconsin Criminal Jury Instructions Committee that the definition of "custody" used in the escape statute would be applicable to the sentence credit statute, § 973.155(1)(a), STATS. After we decided Cobb, the legislature decided that one who violates home detention rules is guilty of an escape. Section 302.425(6), STATS. But that legislation in no way affected whether a home detainee is "in custody" for the purpose of computing sentence credit. To determine whether Swadley is in custody for sentence credit purposes, we continue to follow Gilbert and Cobb and look to § 946.42(1)(a), STATS.
Section 946.42(1)(a), STATS., is the specific subsection of § 946.42 that the Wisconsin Criminal Jury Instructions Committee said was applicable to sentence credit eligibility. It is also the specific subsection to which we referred when we adopted the Instructions *143 Committee's analysis in Cobb.[3] We had no reason in Cobb to discuss any other part of § 946.42, except the definition of "custody" found in § 946.42(1)(a).
The home detention statute, § 302.425.(6), STATS., does not define "escape" by referring to § 946.42(1)(a), STATS., it refers to § 946.42(3)(a). Thus, the Cobb holding, that courts are to use the definition of "custody" found in § 946.42(1)(a) in determining sentence credit eligibility, is simply inapplicable to the legislature's determination in § 302.425(6) that an intentional failure to remain within the limits of his or her detention is punishable as an escape under § 946.42(3)(a). All that § 946.42(3)(a) really does is to make some types of escapes class D felonies.[4] That is irrelevant to the question of sentence credit. Trying to equate the two makes no sense.
[2]
It is undisputed that Swadley was not in the actual custody of an institution. Home detention is not the constructive custody of prisoners temporarily outside the institution for the purpose of work, school, medical care or furlough. Those are the definitions of "custody" *144 found in § 946.42(1)(a), STATS. Thus, Swadley could not be found guilty of an escape under § 946.42. That he could be punished for violating his home detention rules under § 302.425(6), STATS., is irrelevant. Cobb does not use § 302.425(6) as the test for sentence credit. Because Swadley was not "in custody" while he was on home detention, he is not entitled to sentence credit under § 973.155(1)(a), STATS.
By the Court.Order affirmed.
NOTES
[] Petition to review denied.
[1] Swadley also appeals from his judgment of conviction but makes no argument as to any error that occurred at trial with regard to his conviction. Consequently, we consider only his appeal from the trial court's postconviction order.
[2] See infra note 3.
[3] Section 946.42(1)(a), STATS., was, at the time Gilbert and Cobb were written, numbered § 946.42(5)(b). Certain changes, not relevant to this discussion, were made to the statute after we wrote Cobb. Our statement in Cobb, 135 Wis. 2d at 184-85, 400 N.W.2d at 11, that "[c]ustody is defined, in pertinent part, in sec. 946.42(5)(b), STATS.," is now incorrect. The correct citation should be to § 946.42(1)(a).
[4] Section 946.42(3)(a), STATS., refers to "custody." But the "custody" part of that statute is unnecessary to determine the sentence for violating § 302.425(6), STATS. Indeed, were the "custody" part of § 946.42(3)(a) to become a part of § 302.425(6), the elements of a home detention escape would be in hopeless conflict. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598079/ | 818 So. 2d 645 (2002)
Michael P. WELCH, as assignee of David J. and Adele Pinkster, Howard Pinkster d/b/a A.T.I.M.A. Prime Properties, and American Rental Dealers Insurance, Appellant,
v.
COMPLETE CARE CORPORATION and Professional Business Owners Association, Inc., Appellees.
No. 2D00-5250.
District Court of Appeal of Florida, Second District.
June 7, 2002.
*647 Roy L. Glass of Law Offices of Roy L. Glass, P.A., St. Petersburg, for Appellant.
Michael Miller of Pine & Berger, Tampa, for Appellee Complete Care Corp.
Shari D. Castagnos and J. Gregory Giannuzzi of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellee Professional Business Owners Association, Inc.
NORTHCUTT, Judge.
Michael Welch challenges a final summary judgment entered in favor of Complete Care Corporation and Professional Business Owners Association (PBOA) and underlying orders that dismissed several counts of his complaint. As we will explain in detail, we affirm in part and reverse in part.
Welch was employed by Complete, a lawn and landscaping company. Complete *648 leased its business premises, a storage unit, from Prime Properties. Welch was injured on the job when the garage door on the storage unit malfunctioned. When the door mechanism broke, a piece of metal struck Welch in the face, causing severe injuries to his eye and cheek. Welch received workers' compensation benefits from Complete and its insurer, PBOA.
Welch also filed suit against Complete's landlord, Prime and its principals, David, Adele, and Howard Pinkster, asserting that they breached their duty to maintain the premises. He ultimately settled that case for $70,000. As part of the settlement, Prime and the Pinksters also assigned to Welch "all legal and equitable rights of action, claims and interest, including but not limited to indemnity and contribution which [they] may have against Complete and its insurance company."
As Prime's assignee, Welch then sued Complete and PBOA. He asserted five counts: declaratory relief, contractual indemnity, common law indemnity, contribution, and equitable subrogation. During the course of the litigation, the circuit court dismissed all the counts except the ones seeking declaratory relief and damages based on contractual indemnification. The court eventually entered summary judgment in favor of Complete and PBOA on those two counts. In this appeal, Welch challenges the court's rulings on his claims for equitable subrogation, common law indemnity, and contractual subrogation.
A. Equitable Subrogation.
In Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 646 (Fla.1999), the court held that equitable subrogation is generally appropriate when the following five factors exist:
(1) the subrogee made the payment to protect his or her own interest, (2) the subrogee did not act as a volunteer, (3) the subrogee was not primarily liable for the debt, (4) the subrogee paid off the entire debt, and (5) subrogation would not work any injustice to the rights of a third party.
Thus, in the prototypical tort case, equitable subrogation arises when one of several defendants pays the plaintiff's entire claim that, in equity, should have been paid by one of the other defendants. See id. WQBA further limited the doctrine in tort cases to situations where the party seeking subrogation has obtained a release for the other party responsible for the debt. Cf. id. at 647 ("In the present case, equitable subrogation would only be proper if it can be established that Three Kings [the party seeking subrogation] paid the entire debt owed to a particular plaintiff and that in doing so, Three Kings obtained a release for DCSB [the party against which subrogation was sought] from the plaintiff").
In this case, equitable subrogation would only be appropriate if Prime had paid Welch's entire claim, some or all of which should have been paid by Complete, and if Prime had obtained a release for Complete from Welch. The record does not establish these facts. But there is another reason why equitable subrogation was not applicable in this case. Under the doctrine, the person discharging the debt, Prime, stood in the shoes of the person whose claim had been discharged, Welch, and succeeded to his rights against Complete and PBOA. See id. But Welch had no rights to sue Complete and PBOA in tort because Complete was his employer and paid workers' compensation benefits for the accident. It is immune from suit under section 440.11, Florida Statutes (1993). As the WQBA court noted, if the plaintiff/subrogor has no rights against the third party, the subrogee has nothing to inherit. 731 So.2d at 647. In effect, *649 Prime's assignment of its equitable subrogation rights against Complete to Welch merely assigned Welch's own non-existent rights back to him. The circuit court correctly dismissed Welch's claim, as Prime's assignee, for equitable subrogation.
B. Common Law Indemnification.
To succeed on a claim of common law indemnity, Welch must show (1) that Prime was without fault; and (2) that Prime's liability for Welch's damages was vicarious and solely based on the wrong of Complete. See Id. at 642; Houdaille Indus., Inc. v. Edwards, 374 So. 2d 490, 493 (Fla.1979); Dominion of Can. Ins. Co. v. State Farm Fire & Cas. Co., 754 So. 2d 852, 855 (Fla. 2d DCA 2000). We will address the issue of Prime's fault in our discussion of the claim for contractual indemnification. We need not discuss it here because the record does not show any legal relationship between Prime and Complete which would render Prime vicariously, constructively, derivatively, or technically liable to Welch because of some negligence or fault on Complete's part. See Marino v. Weiner, 415 So. 2d 149, 150 (Fla. 4th DCA 1982).
As cogently explained in Bovis v. 7-Eleven, Inc., 505 So. 2d 661 (Fla. 5th DCA 1987), a property owner does not insure the safety of persons on his property; he is not strictly liable or liable per se for injuries resulting from a dangerous condition existing on the property. This is because premises liability is not predicated on ownership of the property, but on the failure of the possessor of the property to use due care. Id. at 662-63. The duty to protect others from injury resulting from a dangerous condition on the premises rests on the right to control access to the property. This right is usually in the hands of the tenant, who is in possession and control. Id. at 664. Thus, if a lessor completely surrenders possession and control of a premises to a lessee, the lessor will not be liable for injuries to third persons that occur on the property. Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12, 14 (Fla. 1st DCA 1996), approved on other grounds sub nom Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1998).
This record establishes that Complete was in possession and control of the rented storage space. An employee of Complete directed Welch to attempt to open the jammed garage door, which resulted in his injuries. Because Prime was not in possession or control of the property, it was not vicariously liable for Welch's injuries. Absent vicarious liability, Prime, and Welch as its assignee, had no action for common law indemnity against Complete. Houdaille, 374 So.2d at 493; Marino, 415 So.2d at 151. The circuit court correctly dismissed this count of Welch's complaint.[1]
C. Contractual Indemnity-Complete.
Welch, as Prime's assignee, sued Complete for contractual indemnification based on two clauses in the lease agreement between Complete and Prime:
7. INSURANCE
The Lessee [Complete] assumes full liability for and agrees to indemnify and save harmless the Lessor [Prime] from *650 any injury or damage of any nature to any person entering upon or using the Leased property for any lawful purpose during the term of this lease, and the Lessee will, at its expense, carry and deposit with the Lessor a policy of owners, landlords and tenants liability insurance covering the Leased property in a minimum amount of One Hundred Thousand Dollars ($100,000.00) to Three Hundred Thousand Dollars ($300,000.00). The Lessor shall carry at its own expense, fire, windstorm, and extended coverage insurance upon the building hereby leased: provided, however, that in the event the business of the Lessee causes increase in the fire, windstorm, and extended coverage insurance premiums, the amount of said increase shall be payable to the Lessor upon demand and shall constitute additional rental hereunder. Lessee agrees to pay his proportionate share of all insurance increase over the base year insurance.
16. INDEMNIFICATION
Lessor shall not be liable for any damage or injury to any person or property whether it be the person or property of the Lessee, Lessee's employees, agents, guests, invitees or otherwise by reason of Lessee's occupancy of the Leased premises or because of fire, flood, windstorm, acts of God or any other reason. Lessee agrees to indemnify and hold harmless Lessor from and against any and all loss, damage, claim, demand, liability or expense by reason of damage to person or property which may arise or be claimed to have arisen as a result of the occupancy or use of said Leased premises by Lessee or on account of any injury or damage caused to any person or property on or in the Leased premises, providing, however, that Lessee shall not so indemnify as to any loss or damage due to the fault of Lessor.
Florida courts view with disfavor contracts that attempt to indemnify a party against its own negligence. Charles Poe Masonry v. Spring Lock Scaffolding Rental Equip. Co., 374 So. 2d 487, 489 (Fla. 1979). These contracts will be enforced only if they express in clear and unequivocal terms an intent to indemnify against the indemnitee's own wrongful acts; general terms of indemnity will not suffice. Id.; Cox Cable Corp. v. Gulf Power Co., 591 So. 2d 627, 629 (Fla.1992). Here, the "Indemnity" provision did not clearly indicate Complete's intent to indemnify Prime for its own wrongdoing; in fact, the provision expressed a contrary intent: "Lessee shall not so indemnify as to any loss or damage due to the fault of Lessor." Under this provision, Prime was not entitled to contractual indemnification for its own negligent acts. While the "Insurance" provision did not clearly state Complete's intention not to indemnify Prime for its own negligence, it contained only general terms of indemnity. These terms were insufficient under Cox Cable. Thus, neither provision in the contract indemnified Prime for its own negligence.
But our inquiry does not end there. The circuit court granted summary judgment in favor of Complete and PBOA on the ground that Prime was wholly or partially at fault in Welch's accident. This finding was based on Welch's assertions in his suit against Prime and on his expert's opinion in proceedings to determine whether Welch would be required to pay a portion of the settlement proceeds to PBOA in satisfaction of its workers' compensation lien. Prime, however, never admitted any negligence in the suit brought by Welch. In fact, the release Welch signed in connection with their settlement specifically acknowledged that Prime's $70,000 payment to him "is not to be considered as an admission of liability on the *651 part of [Prime], but is in full settlement and compromise of a disputed claim which [Welch] has asserted against [Prime], and for which [Prime] ha[s] denied and still den[ies] liability." Thus Prime steadfastly denied its liability in the face of Welch's action against it.
Welch's allegations in his previous suit against Prime did not establish Prime's fault in this lawsuit. A party seeking indemnity is not locked in by the injured person's allegations against it in the underlying lawsuit. Safecare Med. Ctr. v. Howard, 670 So. 2d 1020, 1023 (Fla. 4th DCA 1996); see also Okuboye v. Hubert Rutland Hosp., 466 So. 2d 342, 343 (Fla. 2d DCA 1985) (holding that, in an indemnity action, the negligence of the party seeking indemnity is not established solely by the allegations in the injured party's complaint). Thus, the basis for the summary judgment on this count was flawed. As Prime's assignee, Welch must be permitted to argue that Prime was not legally or factually responsible for his damages. Accordingly, we reverse the summary judgment entered in favor of Complete on the claim for contractual indemnification and remand for further proceedings.
D. Contractual indemnityPBOA.
Our determination to reverse the summary judgment in favor of Complete on the contractual indemnification claim does not resolve the issue of whether PBOA is liable to pay the claim. The employer's liability insurance contract[2] between them provided:
C. Exclusions
This insurance does not cover:
1. Liability assumed under a contract.
Based on this exclusion, the circuit court found that PBOA would not be liable to pay Complete's damages under a contractual indemnity theory. We agree, and affirm the summary judgment on this claim in favor of PBOA.
FULMER and SILBERMAN, JJ., Concur.
NOTES
[1] In Welch's count for common law indemnification, he asserted that Prime, his assignor, was passively rather than actively negligent. As pointed out in Houdaille Industries v. Edwards, 374 So. 2d 490, 492 (Fla.1979), such allegations are not the equivalent of pleading vicarious liability. As the Houdaille court further explained, the concept of active versus passive liability is really a concept of fault. As previously noted, we will discuss the issue of Prime's fault in connection with the claim for contractual indemnity.
[2] PBOA did not actually issue a written policy to Complete because Complete was self-insured. Welch asserted that PBOA was bound to provide coverage pursuant to the NCCI Standard of Employers' Liability Insurance Coverage. This policy contains the exclusion for liability assumed under a contract. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598066/ | 3 So. 3d 526 (2008)
STATE of Louisiana
v.
Marcus WILLIAMS.
No. 08-KA-272.
Court of Appeal of Louisiana, Fifth Circuit.
December 16, 2008.
*528 Paul D. Connick, Jr., District Attorney, Twenty-Fourth Judicial District, Parish of Jefferson, Terry M. Boudreaux, Thomas J. Butler, Donald A. Rowan, Jr., Assistant District Attorneys, Gretna, Louisiana, for Plaintiff/Appellee.
Marcus Williams, Angola, Louisiana, In Proper Person.
James A. Williams, Brian J. Evans, Attorneys at Law, Gretna, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and FREDERICKA HOMBERG WICKER.
McMANUS, Judge.
STATEMENT OF THE CASE
The defendant Marcus Williams was indicted by a Jefferson Parish grand jury for the offenses of armed robbery, aggravated kidnapping and aggravated arson. He pled not guilty to the indictment on June 18, 2004. A second bill of information was filed on November 15, 2004 which contains a handwritten notation indicating that another bill would be filed and that the defendant would be arraigned on all charges. A second amended bill of information was filed on November 29, 2004. The record does not show that the defendant was re-arraigned after the corrected bill of information was filed. However, a failure to arraign the defendant is waived if the defendant enters upon the trial without objecting thereto, and it shall be considered as if he had pleaded not guilty. LSA-C.Cr.P. art. 555.
On June 20, 2006, the defendant proceeded to trial on the armed robbery and kidnapping charges. After hearing testimony, a twelve-person jury found him guilty as charged. The State dismissed the arson charge after the guilty verdicts were returned.
On August 4, 2006, the defendant was sentenced to 75 years at hard labor for the armed robbery and to life in prison on the aggravated kidnapping. With the assistance of retained appellate counsel, he now appeals his convictions and sentences. The defendant filed a pro se assignment of error on August 18, 2008.
FACTS
The victim, Owen Santiago, testified that two years earlier, on April 14, as he drove his car into his driveway, four men entered his car, three of whom were armed. The men wanted money and took his jewelry. One of the kidnappers, later identified as the defendant, told him that he would be released if he had an ATM card or could call someone to give them money. Santiago thought he was going to die. He knew *529 one of the people who grabbed him, Marcus, because he had gone to school with him. The kidnappers took his earrings, chain, and bracelet. The kidnappers took Santiago out of his car and threatened to beat him if he did not cooperate. One of them said they would kill him and put his body in a dumpster. The kidnappers took the spare tire out of the trunk, put Santiago inside, and resumed driving.
The victim struggled to escape the trunk. As the car turned on the service road near Clearview, the victim was able to jump out. He ran to a nearby service station to call the police. Santiago described the routes taken during the kidnapping. Upon retracing these locations, the police recovered the spare tire where it had been discarded, as well as the victim's shoes which had been lost as he jumped from the trunk.
At trial, the victim positively identified the defendant as the man who had been in the front passenger seat of his car. He had gone to grammar and high school with him and knew the defendant "pretty good." The victim was absolutely positive that Marcus Williams was one of the men in the car.
DISCUSSION
In this appeal, the defendant raises two assignments of error: the court erred by not granting his motion to suppress and that the evidence was insufficient to support his conviction. On appeal, when issues relate to both the sufficiency of the evidence and other trial errors, the reviewing court should first determine the sufficiency of the evidence. State v. Hearold, 603 So. 2d 731, 734 (La.1992). Therefore, the defendant's second assignment of error raising a question of the sufficiency of the evidence will be addressed first.
Assignment of Error Number Two
In his second assignment of error, defendant argues the evidence submitted at trial was insufficient to prove he committed the crime with which he was charged beyond a reasonable doubt.
In reviewing claims challenging the sufficiency of the evidence or identification, an appellate court must consider "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 beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979).
In addition to proving each statutory element of the crime charged, the State must prove the identity of the perpetrator. State v. Vasquez, 98-898 (La.App. 5 Cir. 2/10/99), 729 So. 2d 65, 69. Where the key issue is identification, the State is required to negate any reasonable probability of misidentification in order to carry its burden of proof. Id.
"Positive identification by only one witness is sufficient to support a conviction." State v. Williams, 02-645 (La. App. 5 Cir. 11/26/02), 833 So. 2d 497, 503, writ denied, 02-3182 (La.4/25/03), 842 So. 2d 398. All evidence, both direct and circumstantial, must be sufficient to support the conclusion that the defendant is guilty beyond a reasonable doubt. State v. Jupiter, 06-93, p. 6 (La.App. 5 Cir. 6/28/06), 934 So. 2d 884, 888. The determination of the weight of evidence is a question of fact that rests solely with the trier-of-fact. State v. Upchurch, 00-1290, p. 4 (La.App. 5 Cir. 1/30/01), 783 So. 2d 398, 402. If there is a conflict in the testimony, the trier-of-fact may accept or reject, in whole or in part, the testimony of any witness. State v. Addison, 00-1730, p. 4 (La.App. 5 Cir. 5/16/01), 788 So. 2d 608, *530 613, writ denied, 01-1660 (La.4/26/02), 814 So. 2d 549. In the absence of internal contradiction or irreconcilable conflict with physical evidence, the testimony of one witness, if believed by the trier-of-fact, is sufficient to convict. Id.
These principles are illustrated in State v. Cowart, 01-1178 (La.App. 5 Cir. 3/26/02), 815 So. 2d 275, writ denied, 02-1457 (La.5/9/03), 843 So. 2d 387. In Cowart, there was no physical evidence linking the defendant to the crime and a single witness identified the defendant as the perpetrator of a shooting. At trial, the reliability of the eyewitness was attacked because the witness was a convicted felon, had been under psychiatric care, had initially lied to the police, gave a description that did not match the defendant, had perjured herself during motion hearings, and had changed her story about the crime scene and the number of shots she heard. Despite this lengthy list of deficiencies, this Court held that it was within the jury's discretion to believe the witness' testimony. Id. at 285.
In this case, the jury heard testimony from the victim, who knew the defendant from attending school with him. Over the course of several hours, the victim had an opportunity to see and hear the perpetrators. He made positive and consistent identifications that this defendant was one of the men who robbed and kidnapped him. If believed by the jury, this testimony was sufficient to prove identity. Under the Jackson standard, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have concluded that the defendant was guilty of armed robbery and aggravated kidnapping. For these reasons, we find the evidence provided at trial was sufficient to support defendant's convictions.
Assignment of Error Number One
In his first assignment of error, defendant argues the trial court erred in not granting his Motion to Suppress the Identification because the photographic lineup was improperly suggestive.
The defendant argues in his appellate brief that the lineup photo array is not included in exhibits and thus not reviewable by this Court. This factual contention is contradicted by a review of the district court record prepared for appeal. This exhibit is present in the record on appeal and is reviewable by this Court.
At the motion to suppress hearing, Detective Keith Forsythe testified regarding the selection of photographs and manner in which they were presented to the victim. He did not consider the photographs suggestive and noted that the six photographs in the array were all of black males with dreadlocks, around the same age, with thin mustaches. Forsythe testified that he utilized the automated fingerprint identification system (AFIS) by entering physical descriptions that resembled the suspect. The defendant's picture was already in the AFIS system when the photo array was compiled. Forsythe informed the victim that it was possible that a suspect might not be in one of the photographs.
After hearing testimony from both the investigating detective and the victim and viewing the photographic lineup, the trial court denied the motion to suppress the identification.
A trial judge's finding of fact in ruling on a motion to suppress identification is afforded great deference and may not be overturned in the absence of manifest error. State v. Higgins, 03-1980, pp. 20-21 (La.4/1/05), 898 So. 2d 1219, 1233, cert, denied, 546 U.S. 883, 126 S. Ct. 182, 163 L. Ed. 2d 187 (2005).
*531 In raising a challenge to identification procedures, the burden of proof is on the defendant to establish that the identification was suggestive and that there was a substantial likelihood of misidentification. State v. Calloway, 97-796, p. 10 (La.App. 5 Cir. 8/25/98), 718 So. 2d 559, 565, writs denied, 98-2435 and 98-2438 (La. 1/8/99), 734 So. 2d 1229, The admissibility of an identification is controlled by Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140 (1977). Under this standard, viewing the evidence from a totality of the circumstances, the trial court should consider whether suggestiveness presents a substantial likelihood of misidentification. This review is based on five specific factors:
1) the opportunity of the witness to observe the perpetrator at the time of the crime,
2) the witness' degree of attention at the time of the crime,
3) the accuracy of his prior description of the offender,
4) the level of certainty displaced at the confrontation, and lastly,
5) the time between the crime and the confrontation.
Id. at 115, 97 S.Ct. at 2253.
The victim and witness in this case had a lengthy opportunity to view the perpetrators of the crime. His degree of attention was heightened, his description of the offender was accurate, he was certain of his identification, both in selecting the defendant's photograph and in identifying him in court, and the time between the crime and the identification was short. Thus, all of the factors set forth in Manson v. Brathwaite were present.
The defendant's short argument related to the lineup is bolstered solely by reference to defense counsel's questions of the police officer at the motion to suppress hearing. The defendant directs this Court's attention to counsel's question of the police officer as to whether the defendant's lineup photograph was larger than other photographs. The officer's response was that the photograph was not bigger than the other photographs. At the conclusion of the trial, the jury was specifically instructed that statements and arguments of counsel were not evidence.
We have reviewed the photographic lineup which is contained in the record on appeal and is viewable by the Court. We find the defendant's photograph in the lineup was not larger than the other photographs, as argued by defendant. However, we do note that defendant's face does appear slightly larger in his photograph than the others' faces. However, we find this slight difference did not present a substantial likelihood of misidentification and, using the factors set forth in Manson v. Brathwaite, supra, the victim's identification of defendant was reliable. Therefore, we find the trial court correctly denied the motion to suppress.
Pro Se Assignment of Error
In his pro se brief, defendant argues that the trial court erred in failing to wait the statutorily mandated period between denying defendant's motions for new trial and post-verdict judgment of acquittal and sentencing.
Pursuant to LSA-C.Cr.P. art. 873, if a motion for new trial is filed, sentence shall not be imposed until at least twenty-four hours after the motion is overruled. The transcript of sentencing in this case shows that the trial court denied the motion for new trial and sentenced the defendant immediately thereafter. There was no waiver of delays, nor was there an objection to the imposition of sentence.
In State v. Jones, 07-271 (La.App. 5 Cir. 10/30/07), 970 So. 2d 1143, 1149, this Court *532 noted the general rule that where a defendant challenges a non-mandatory sentence and the delay is not waived, his sentence must be vacated and the case remanded for resentencing. The Court also noted that the Supreme Court of Louisiana has held:
Although C.Cr.P. art. 873 unequivocally requires the trial court to delay imposition of sentence for a period of at least 24 hours after denial of post-trial motions, there has been no objection raised regarding the sentence imposed in this case and no showing or suggestion that defendant was prejudiced by the failure to observe the delay. Judicial efficiency therefore dictates that this court need not follow the useless formality of remanding for reimposition of a sentence which has not been challenged.
Id. at 1149-50, quoting State v. White, 404 So. 2d 1202, 1204 (La.1981).
In this case, the defendant was sentenced to the mandatory minimum sentence of life in prison on the conviction of aggravated kidnapping. He was sentenced within the statutory limits for the conviction of armed robbery. He made no contemporaneous objection to his sentence on either conviction, nor does he raise issues on appeal with regard to his sentences. In light of the lack of objection or prejudice, we find that this error is harmless and does not require remand.
Error Patent Review
This Court routinely reviews the record for errors patent regardless of whether the defendant requests such a review, pursuant to LSA-C.Cr.P. art. 920, State v. Oliveaux, 312 So. 2d 337 (La.1975), and State v. Weiland, 556 So. 2d 175 (La. App. 5 Cir.1990).
In this case, we note one patent error, in addition to the failure to delay sentence after the denial of the motion for new trial discussed above. Although the commitment order states that the defendant was informed of the time for seeking post-conviction relief, the transcript contains no advice of rights for seeking postconviction relief. Generally, where there is a discrepancy between the minutes and the transcript, the transcript prevails. State v. Lynch, 441 So. 2d 732, 734 (La. 1983). Therefore, we find the trial court failed to inform the defendant of the prescriptive period for filing post-conviction relief pursuant to LSA-C.Cr.P. art. 930.8(C). We remand this matter and order the district court to properly inform the defendant of the time limits for seeking post-conviction relief by sending written notice to the defendant within ten days of the rendition of the appellate opinion, and to file written proof that the defendant received the notice in the record.
CONVICTION AND SENTENCE AFFIRMED; MATTER REMANDED WITH INSTRUCTIONS. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598087/ | 818 So. 2d 914 (2002)
ST. TAMMANY PARISH SCHOOL BOARD
v.
STATE of Louisiana DEPARTMENT OF LABOR, OFFICE OF EMPLOYMENT SECURITY and Hazel Hearty
No. 2001CA0757.
Court of Appeal of Louisiana, First Circuit.
May 10, 2002.
*915 Harry P. Pastuszek, Jr., David S. Pittman, Lynn Carnevale Gilreath, Mandeville, Counsel for Plaintiff/Appellant St. Tammany Parish School Board.
J. Jerome Burden, Baton Rouge, Counsel for Defendant/Appellee Louisiana Department of Labor, Office of Employment Security.
Before: CARTER, C.J., PARRO and CLAIBORNE,[1] JJ.
IAN W. CLAIBORNE, Judge Pro Tem.
This is an unemployment compensation case. The St. Tammany Parish School Board (employer) appeals the judgment of the district court upholding the decisions of the Board of Review (Review Board) and Administrative Law Judge (ALJ) finding no misconduct connected with Hazel Hearty's (claimant's) employment. Based on the following review, we affirm.
FACTS AND PROCEDURAL HISTORY
After a three-day tenure hearing before the employer, on March 24, 2000, the claimant was terminated from her employment as a sixth-grade language arts teacher at Carolyn Park Middle School in Slidell, Louisiana. The employer unanimously voted to terminate the employment of claimant for her incompetence (failure/refusal to follow the Louisiana Components of Effective Teaching and teaching incorrect information) and for willful neglect of duty (failure, refusal, and inability or unwillingness to correct teaching deficiencies and a combative/confrontational attitude).[2] The claimant did not *916 appeal her employer's decision to terminate; instead, she filed a claim for unemployment compensation on April 9, 2000.
The Louisiana Department of Labor, Office of Employment Security (agency) initially determined that there was no misconduct connected with the claimant's employment and found her eligible for unemployment compensation benefits. The employer appealed that determination to an ALJ. The ALJ conducted a hearing to consider the issues of whether the claimant was discharged from her employment because of poor work performance, incompetence and/or willful neglect of duty. At that hearing only the claimant, the principal of Carolyn Park Middle School and the assistant personnel director for the employer testified. The ALJ made the following findings of fact:
The claimant worked for the employer for eight years and five months until she was terminated by the St. Tammany Parish School Board on March 24, 2000. She last worked as a sixth grade teacher of language arts at Carolyn Park Middle School. For the last three years of her employment, she had been under the supervision of Gwen Doyle, principal. The claimant had been evaluated by the previous principals; and a formal evaluation was issued on May 9, 1997, in which it was noted that she "performs job description items". The next formal evaluation was scheduled to be conducted during the 1999-2000 school year. A parent complained that the claimant interrupted her conversation with her daughter on a day when she was volunteering in the claimant's classroom. The parent alleged that the claimant was rude to her daughter and unfairly assigned her a lunch detention. The parent brought a letter to the claimant and confronted her in front of other students, announcing loudly that her daughter would not serve that lunch detention or any other lunch detention unless it was approved by the principal. The principal backed the parent in this incident. Other students or their parents also complained about the claimant.
The claimant returned from a six month leave of absence in January of 1999.
On five occasions between February 9, and February 19, 1999, the principal and the assistant principal observed the claimant in her classroom. On February 22, 1999, the claimant submitted a letter requesting a follow-up conference about the observation. No follow-up conferences were required, since these were informal observations. Formal evaluations followed; as a result of these, the principal placed the claimant on level one of an Intensive Assistance Plan on April 26, 1999. As part of this plan, the claimant was to submit daily lesson plans which addressed activities and behavioral objectives, using a variety of learning materials and taking into account individual differences between students. She was to observe two mentor teachers during the next week and was given a copy of and told to comply with the Louisiana Components of Effective Teaching.
The assistant principal conducted followup evaluations and took extensive notes, she recommenced [sic] that the claimant be placed on level two of the Intensive Assistance Plan.
After the school year began again in August of 1999, a curriculum specialist, Marian Arrowsmith, observed in the claimant's classroom on August 30, 1999. The principal observed her on the same day. Both of them completed personnel forms and presented them to the claimant *917 for signature on September 2, 1999. The claimant refused to sign because she disagreed with the process and did not feel that it was fair. She was placed on level three of the Intensive Assistance Plan. The suggested objectives were to prepare detailed lesson plans and teach students, using the Louisiana Components of Effective Teaching. A follow up evaluation by both Ms. Arrowsmith and Ms. Doyle on September 9, 1999, led to a decision to continue with level three of the assistance plan. Ms. Arrowsmith observed again on October 13 and December 6, 1999, and remarked that the claimant "continues to lack understanding of planning and individual differences of her students. She lacks objectives and therefore teaching is scattered. Her directions and information are confusing and sometimes incorrect. There still is virtually no student interaction and involvement. There is only whole group or individual work being done. Mrs. Hearty still needs to encourage and plan for student interaction and engagement. Lack of closure to lessons."
In a letter of December 8, 1999, termination was recommended. The claimant began leave on January 14, 2000, pending the findings of the school board. At the claimant's request, the hearing was open to the public. A number of students and parents appeared and gave testimony on March 21, March 23, and March 24, 2000. Although the majority of the board did not find the claimant guilty of willful neglect of duty, they did find her guilty of incompetence. As a result, she was discharged. (Emphasis added.)
Based upon the stated findings of fact, the ALJ affirmed the agency determination of no disqualification from unemployment compensation benefits. The ALJ determined that the claimant had been discharged for her inability to meet her employer's requirements, not misconduct connected with her employment. The employer appealed the decision of the ALJ to the Review Board. The Review Board adopted and affirmed the decision of the ALJ, and the employer sought judicial review of the Review Board's decision. The district court affirmed the decision of the Review Board upholding the ALJ decision finding no disqualification of benefits. The employer now appeals to this court arguing that the ALJ's findings of fact adopted by the Review Board misstated that the employer did not find the claimant guilty of willful neglect of duty, and that therefore, the trial court erred in affirming the Review Board decision adopting the ALJ's findings of fact and failing to disqualify the claimant from unemployment benefits.
STANDARD OF REVIEW
Our appellate review in this matter is expressly and severely limited to questions of law by the legislature in La. R.S. 23:1634(B). In the absence of fraud, the findings of the Review Board are conclusive as to the facts of the case if supported by sufficient evidence. La. R.S. 23:1634(B); King v. Tangipahoa Parish Police Jury, 96-0934, pp. 3-4 (La.App. 1st Cir.2/14/97), 691 So. 2d 194, 196. Courts may not disturb factual findings of the Review Board when questions of weight and credibility are involved and when the conclusions are supported by sufficient evidence. Judicial review of the findings of the Review Board does not permit weighing of evidence, drawing of inferences, reevaluation of evidence, or substituting views of the court for that of the Review Board as to the correctness of the facts presented. Lewis v. Administrator, 540 So. 2d 491, 496 (La.App. 1st Cir.1989). Therefore, we must determine whether the *918 facts are supported by competent evidence and whether the facts, as a matter of law, justify the Review Board's decision. Landry v. Shell Oil Co., 597 So. 2d 521, 524 (La.App. 1st Cir.1992).
After reviewing the transcript of the hearing before the ALJ and the exhibits introduced at that hearing, including the charges against the claimant and the vote of the employer on the charges, we find that the evidence supports the findings of fact of the ALJ except as to the statement that the employer did not find the claimant guilty of willful neglect of duty. The employer unanimously found that the claimant was guilty of one count of willful neglect of duty, in that she failed or refused or was unable or unwilling to correct her deficiencies in her teaching in accordance with the Louisiana Components of Effective Teaching, and she had a confrontational and combative attitude when offered assistance or direction in her teaching. To the extent that the Review Board and district court relied on the ALJ's erroneous finding of fact in affirming the determination that the claimant was not disqualified for misconduct connected with her employment, the Review Board and district court erred as a matter of law. Therefore, we must make a de novo determination of whether or not the ruling of the Review Board was correct. King, 96-0934 at 4, 691 So.2d at 197.
MISCONDUCT
An employee who engages in misconduct connected with her employment is disqualified from receiving unemployment compensation benefits. See La. R.S. 23:1601(2)(a).[3] "Misconduct" has been jurisprudentially defined as intentional wrongdoing, and the employer bears the burden of proving by a preponderance of the evidence that the discharge resulted from disqualifying misconduct. See Banks v. Administrator of Dept. of Employment Sec. of State of La., 393 So. 2d 696, 699 (La.1981). The misconduct must emanate from a willful or wanton disregard of the employer's interest, from an intentional breach of the employer's rules, or from a direct disregard of the standard of behavior which the employer has a right to expect from its employees. Charbonnet v. Gerace, 457 So. 2d 676, 678 (La.1984). An employee can be unsatisfactory to the employer without being guilty of disqualifying misconduct. An intent to do wrong must be present. Banks, 393 So.2d at 699.
We have thoroughly reviewed the record and have found no evidence that the claimant had a "willful or wanton disregard" for her employer's rules and policies or that the claimant was engaged in deliberate conduct intended to harm her employer's interest. At the hearing before the ALJ, the claimant refuted the principal's allegations that she refused to comply with specific instructions given to her on how to make a lesson plan or teach her class. To the contrary, the evidence shows that the claimant made a good faith effort to comply with the rules and expectations of her employer, but she was unable to satisfy her employer's requirements. The employer did not provide sufficient evidence that the claimant deliberately and intentionally failed to comply with the *919 guidelines of the Louisiana Components of Effective Teaching. The claimant acknowledged that although she disagreed with the need to place her on an assistance plan, and that she refused to sign her evaluation forms involved in the plan, she nevertheless attempted to comply with the requirements of the plan. The employer did not introduce into evidence any of the lesson plans that the claimant prepared, nor did the employer prove any specific deficiency in the lesson plans other than a general statement that the claimant did not seem to follow her prepared lesson plans while being observed teaching in the classroom. The claimant denied that her lesson plans were ever late and she denied that she taught incorrect information to her students. While the conduct of the claimant may have justified the right of the employer to discharge its employee,[4] it does not necessarily follow that such circumstances warrant a disqualification of the claimant from receiving unemployment compensation benefits. See Atkins v. Doyal, 274 So. 2d 438, 441 (La.App. 1st Cir. 1973). Misconduct sufficient to deny unemployment compensation and just cause needed to terminate an employee are determined by different standards. Harris v. West Carroll Parish School Bd., 605 So. 2d 610, 615 (La.App. 2d Cir.), writ denied, 609 So. 2d 255 (La.1992). Therefore, the finding by the employer that the defendant was guilty of willful neglect of duty is not binding on the Review Board. The employer should have produced before the ALJ the same evidence that was considered in the tenure hearing.
In summary, although the claimant's poor work performance gave the employer reason to discharge her, the employer did not prove that the claimant's incompetence and unsatisfactory work was in any way intentional. At most, the claimant's conduct constituted inadequate job performance, the inability to precisely prepare lesson plans according to established rules, procedures, and teaching guidelines, and personality attributes that did not please her immediate supervisor. Unsatisfactory work and the inability to perform job duties, without the intent to do wrong, is not "misconduct" under La. R.S. 23:1601(2)(a). See Victor v. Administrator, Office of Employment Sec., 96-251, p. 6 (La.App. 3d Cir.6/26/96), 676 So. 2d 1123, 1127. Lowery v. Whitfield, 521 So. 2d 815, 817 (La.App. 2d Cir.1988). Consequently, the employer did not prove by a preponderance of the evidence that the claimant was guilty of disqualifying misconduct within the meaning of the pertinent statute and jurisprudence.
CONCLUSION
For these reasons, the judgment of the district court is affirmed. Costs may not be assessed against the plaintiff-appellant, St. Tammany Parish School Board (See La. R.S. 13:4521), the defendant-appellee, Louisiana Department of Labor, Office of Employment Security (See La. R.S. 13:5112(D)), nor the defendant-claimant, Hazel Hearty (See La. R.S. 23:1692). Thus, it appears that no party to this litigation is legally responsible for the costs. The costs must therefore be absorbed by the clerk of this court and the clerk and sheriff of the trial court. See Livingston Parish School Board v. State Through Office of Employment Sec., 426 So. 2d 246, 248-249 (La.App. 1st Cir.1983).
AFFIRMED.
NOTES
[1] Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.
[2] The claimant was originally charged with two counts of incompetence and four counts of willful neglect of duty pursuant to La. R.S. 17:443 in a proceeding for removal or other disciplinary action of a tenured, permanent school teacher. After the three-day hearing before the employer, the employer unanimously found that claimant was guilty on two counts of incompetence and one count of willful neglect of duty.
[3] La. R.S. 23:1601 provides in pertinent part:
An individual shall be disqualified for benefits:
(2)(a) If the administrator finds that he has been discharged ... for misconduct connected with his employment. Misconduct means mismanagement of a position of employment by action or inaction, neglect that places in jeopardy the lives or property of others, dishonesty, wrongdoing, violation of law, or violation of a policy or rule adopted to insure orderly work or the safety of others.
[4] We are not expressing an opinion or reviewing the correctness of the employer's decision to discharge claimant. Furthermore, the evidence upon which such a finding was made is not before us in these proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598085/ | 583 F. Supp. 944 (1984)
Katherine BOUCHARD, et al., Plaintiffs,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
Lillian PINNEX, Plaintiff,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant.
Civ. A. Nos. 78-0632-F, 80-0319-F.
United States District Court, D. Massachusetts.
April 2, 1984.
*945 Mary Ellen McCarthy, Western Mass Legal Services Inc., Holyoke, Mass., for Katherine Bouchard, Midas Turgeon, George Stephens, Adolph DeDeurwaerder, John Svoboda, Lottie Sypulski and Carolyn Barry.
Joseph J. McGovern, Boston, Mass., for defendant.
MEMORANDUM
FREEDMAN, District Judge:
I. INTRODUCTION
The plaintiffs, in two cases[1] consolidated for a hearing, challenge the methods used by the Secretary to compute the optional state supplementary payment distributed under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq., when income is "deemed" from an ineligible spouse to a categorically eligible[2] individual. The plaintiffs to the class action seek an order reversing the final decision of the Secretary in each of their administrative appeals and a similar order running to the entire class. They also seek declaratory and injunctive relief. For the reasons stated herein, the Court concludes the Secretary incorrectly calculated the amount of the state optional supplementary payment due the plaintiffs and the class which they represent. Accordingly, the motion of the plaintiff class for summary judgment must be granted on the merits of the action and on the requests for prospective declaratory and injunctive relief. However, the prayer for an order to remand all applications to the Secretary for recalculation in accordance with this Memorandum must be denied in part.
II. FACTS
The relevant facts of this case are undisputed. The plaintiffs are all categorically eligible for SSI benefits on the basis of age, blindness or disability. They have all, for various periods of time, lived in the *946 same household with a spouse who did not meet the standards for categorical eligibility of the SSI program. Each had spousal income deemed to them for purposes of determining plaintiffs' financial eligibility for SSI and the amount of benefits. 42 U.S.C. § 1382c(f)(1). Plaintiffs are either ineligible for or receive a smaller state supplementary benefit than they would if their state benefits were calculated in the same manner as is done for purposes of computing their federal benefits.
The eight named plaintiffs all filed timely appeals alleging that the Social Security Administration ("SSA") had improperly calculated the Massachusetts optional state supplement. Because of the similarity of the cases in light of the issue presented, it is unnecessary to recount the details of all the consolidated actions; however, for purposes of illustration, I will set forth the factual and procedural background of two of the plaintiffs represented today.
Katherine Bouchard resides in Pittsfield, Massachusetts. She is categorically eligible for SSI on the basis of disability. Between March 1977 and July 1979, she resided in the same household with her spouse, who was not eligible for SSI. His income was deemed to be available to her in order to determine financial eligibility for SSI. On July 2, 1979, her spouse became eligible for SSI, and she was no longer subject to the provision of the Act. Her administrative appeal was denied by an Administrative Law Judge ("ALJ"). On January 18, 1978, the Appeals Council denied her request for review thereby affirming the ALJ's decision as the final decision of the Secretary.
Plaintiff John Svoboda resides in Northampton, Massachusetts. He is categorically eligible for SSI on the basis of age. Between April 1978 and May 1980, he resided in the same household with his ineligible spouse, whose income was deemed to be available to plaintiff. On May 1980, his spouse became eligible for SSI, and he was no longer subject to the provision of the Act. Svoboda was denied benefits but following a timely appeal, an ALJ entered a decision in his favor. Tr. at 148. The Appeals Council then ruled, in a consolidated case,[3] that the method used by the SSA in determining the amount of optional state supplementary benefits payable fully complied with the requirements of the Social Security Act and the implementing regulations.
In sum, therefore, plaintiffs are all eligible for SSI on the basis of age, blindness or disability. All are or have been sharing a household with a spouse who is or was ineligible for SSI benefits. All have been denied benefits, received a reduced amount, or were terminated from coverage under the SSI program. All have timely appealed the rulings through the Appeals Council and received adverse rulings. All are therefore now final decisions of the Secretary, subject to judicial review. 42 U.S.C. § 1383.
On January 11, 1982, the Court certified a class of plaintiffs consisting of all Massachusetts residents who:
1) Have applied to the Secretary for or have received SSI benefits and have been found categorically eligible for SSI benefits;
2) Have resided in the same household with an ineligible spouse whose income is subject to the statutory deeming requirements set out in 42 U.S.C. § 1382c(f)(1);
3) Have Countable Income below the Massachusetts SSI standard for an eligible individual; and
4) Have Countable Income, together with Countable Income of their ineligible spouses, lower than the Massachusetts SSI standard for an eligible couple. *947 The named plaintiffs, therefore, adequately represent the interests of the class of persons similarly situated.
III. THE SUPPLEMENTAL SECURITY PROGRAM
Supplemental Security Income, Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq., is a federal program of monthly payments to aged, blind or disabled persons who have little or no income and resources. The SSI program was passed on October 30, 1972 and became effective on January 1, 1974. P.L. 92-603. The program replaced the previous state administered Social Security Act income maintenance programs of Aid to the Permanently and Totally Disabled ("APTD"), Old Age Assistance ("OAA"), and Aid to the Blind ("AB"). Id., Title III, § 303(a), Oct. 30, 1972; 86 Stat. 1484, repealing Titles I, X and XVI of the Social Security Act.
Under the previous programs, each state had been free to determine both the level of need and the level of benefits due to applicants. This freedom, plus the fact that each state administered its own program, led to considerable variation among the states as to financial eligibility and degree of disability or blindness required in order to qualify for assistance. Title XVI was enacted, in part, to remedy these variations in eligibility requirements. The federal benefit payment level was to provide a nationally uniform minimum benefit.
The legislature recognized that this national minimum would be higher than the benefit level provided under the old program in some states, but lower than the benefit level which had been in place in other states. Congress therefore authorized states to supplement the federal payment to reflect the varying costs of living among the several states. 42 U.S.C. § 1382e.[4] States who elected to offer this optional state supplementary payment were permitted to administer the distribution of the payment separately or enter into an agreement with the federal government under which the Secretary would make supplementary payments on behalf of the state. 42 U.S.C. § 1382e(a). These payments would be subject to any rules, regulations and provisions which the Secretary found necessary to achieve the efficient and effective administration of both programs. 42 U.S.C. § 1382e(b)(2).[5] The Secretary's regulations pertinent to state supplementary payments are set forth in 20 C.F.R., Subpart T §§ 416.2001 et seq. The federal government, therefore, assumed complete control of the administration of optional supplementary payments offered by states who entered into appropriate federal-state agreements. 42 U.S.C. § 1382e(a).
Congress wished to encourage the administration of state supplementary payments by the federal government. Uniform administration would "avoid unnecessary duplication of administrative costs, would permit the states to take advantage of the improved methods and procedures ... and would tend to foster national uniformity in the operation of assistance programs." H.Rep.P.L. 92-603, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News, 4989, 5185. Federal-state agreements, therefore, were made attractive by incorporating several provisions into the statutory scheme.
First, the amount of the optional state supplement was specifically excluded from the definition of income for the purpose of computing eligibility and amount of federal benefit payment. 42 U.S.C. § 1382e(a). Secondly, the federal government assumed the entire financial burden of administrating the distribution of federal and state payments, requiring states to reimburse the government only the amount actually *948 distributed in the form of payments to needy individuals. 42 U.S.C. § 1382e(d). Finally, the government agreed to a "hold harmless" provision. Congress recognized that:
[b]y entering into agreements for federal administration of their supplemental payments, states will be losing all administrative control over the operation of those benefits. It must be recognized, however, that states may not fully share this confidence and also that patterns of state-to-state migration could result in increased caseloads for a given state even if national caseloads remain stable or decrease.... [The statute], therefore, includes a "hold harmless" provision designed to assure the states that their welfare expenditures will not be increased because of the effects of the provisions of this bill....
H.Rep.P.L. 92-603, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad. News, 4989, 5186-5187.
The "hold harmless" provision, P.L. 92-603 § 401(a)(1), provided that if the annual aggregate amount of optional payments exceeded the state's total outlay under its old programs for calendar year 1972, that excess amount would be paid by the federal government. To prevent states from setting high levels for optional payments and then merely passing on the cost to the federal government, a state could receive hold harmless "credit" only for that portion of the optional supplement which exceeds the "Annual Payment Level," that is, the highest amount an individual would have received in January of 1972. The federal "hold harmless" provision, therefore, had both "a ceiling and a floor." Irizarry v. Weinberger, 381 F. Supp. 1146, 1149-50 (S.D.N.Y.1974).
Massachusetts elected to provide an optional state supplementary payment, and to have the payment administered by the federal government. M.G.L. c. 118A, §§ 1 and 3. Accordingly, the Commonwealth entered into a requisite Federal-State Agreement, Tr. at 484, and qualified for hold harmless protection. Social Security Report at 1 (1981). In accordance with the statute, Massachusetts agreed to provide state supplementary benefits to all individuals residing in the state who receive, or who would but for their income receive federal benefits. 42 U.S.C. § 1382e(b). Further, in accordance with federal regulations, 42 C.F.R. § 416.2020(d), Massachusetts designated nine payment levels. Three categories designate payments to individuals who are aged, blind or disabled, and three other categories designate payments for couples in which both are aged, both are blind, or both are disabled. 42 C.F.R. § 416.2020(d)(2). In addition, Massachusetts assigned three additional "couple categories" in which both members of the couple were categorically eligible.[6] These nine designations are the maximum number of categories allowed under federal-state agreements. 42 C.F.R. § 416.2020(d).
Federal regulations further allow a state to elect a maximum of five variations, called "living arrangements" in recognition of the different needs which result from various lifestyles. These variations could include arrangements such as living alone, living with an ineligible spouse, or congregate care. 20 C.F.R. § 2030(a)(1). Massachusetts has designated four types of living arrangements. An eligible individual, whether living alone or with an ineligible spouse or child, or with an eligible spouse, is assigned to Living Arrangement A, Full Cost of Living, so long as the applicant does not reside in a group care facility, commercial boarding house, halfway house, or rest home. Agreement, Tr. at 533. All other living arrangements provide payment levels at a lower rate than the full cost of living. The need for assistance is therefore not reduced because of the presence of a spouse or child in the household.
*949 The Commonwealth, therefore, has complied with the statutory and regulatory provisions governing the federal administration of the state optional supplementary payment. With this background in mind, it is now necessary to consider the method by which the Secretary administers both the federal and state components of Title XVI of the Social Security Act.
IV. THE CALCULATION OF BENEFITS
When a claim is received, the Secretary first calculates the eligibility for and the amount due an applicant under the federal component of the SSI program. The method of calculation is governed by regulation, 20 C.F.R. Subparts K and L, §§ 416.1100-416.1266. In essence, the Secretary initially computes the Countable Income. Countable Income is the amount of the applicant's earned and unearned income, less certain exclusions and disregards. This figure is then compared with the appropriate Standard Payment Level ("SPL"). The federal benefit is, therefore, the amount by which the SPL exceeds the applicant's Countable Income. This basic pattern is used to compute federal benefit payments for all applicants. However, if the applicant is married, and the spouse is not categorically eligible for benefits, the Secretary uses an important modification when computing the applicant's Countable Income. This modification is commonly referred to as "deeming."
Income maintenance programs assume that persons who are legally responsible for the applicant, such as parents or spouses, make their income available to the applicant. This income is deemed to be available to the applicant for purposes of determining his or her income eligibility. Each income maintenance program[7] develops a method of calculating that portion of a parent's or spouse's income which is deemed available to the applicant.
Under Title XVI of the Social Security Act, an individual applicant's "income shall be deemed to include any income and resources of [a] spouse, whether or not available to such individual, except as determined by the Secretary to be inequitable under the circumstances." 42 U.S.C. § 1382e(f)(1). The Secretary is empowered to promulgate reasonable regulations in accordance with this broad statutory guideline, cf. Kollett v. Harris, 619 F.2d 134 (1st Cir.1980). Under these regulations, effective in their present form on January 1, 1977, 20 C.F.R. §§ 416.1160 et seq., the ineligible spouse's earned and unearned income minus certain exclusions, 42 C.F.R. § 416.1161(a), and allocations, 20 C.F.R. 416.1163(b), is calculated, 20 C.F.R. § 416.1163(a). If the amount of the ineligible spouse's income is more than the federal benefit rate for an eligible individual, the ineligible spouse's income is combined with the applicant's income for purposes of computing the Countable Income, 20 C.F.R. § 416.1163(c)(2).
Finally, the Secretary compares the Countable Income of the applicant to the SPL for an eligible couple, 20 C.F.R. § 416.1163(c)(2)(iii). The federal benefit due the individual claimant is therefore the amount the federal SPL for a couple exceeds the individual's Countable Income which now includes deemed spousal income.
There are two important conditions attached to these regulations. Deeming will not take place:
1) if the income of the ineligible spouse is less than one half of the federal SPL for an individual, 20 C.F.R. § 416.1163(c)(1), or
2) if deeming would increase the federal benefits above the amount the individual would receive without deeming, 20 C.F.R. § 416.1163(c)(1). This latter "windfall provisio" insures that an SSI benefit will be no higher under the deeming rules than it would be if deeming did not apply. Therefore, an applicant receives either the amount computed by deeming spousal income and comparing the aggregate Countable *950 Income to the SPL for a couple or the amount computed with reference to only the individual's Countable Income as compared to the SPL for an individual. The applicant will receive the lower of the two resulting figures and therefore can never benefit from the requirement to deem spousal income.
The foregoing applies to the calculations for the federal component of the SSI program. If a state has executed an agreement, the Secretary then continues computation to incorporate the optional state supplementary payment. 20 C.F.R. Subpart T, §§ 416.2001 et seq. As a condition of the administration agreement:
The regulations in effect for the supplementary security income program shall be applicable in the federal administration of state supplementary payments except as may otherwise be provided in this subpart as found by the Secretary to be necessary for the effective administration of both the basic federal benefit and the state supplementary payment.
20 C.F.R. § 416.2005(d). The regulations further provide:
Where not inconsistent with the provisions of this subpart, eligibility for and the amount of the state supplementary payment will be determined pursuant to the provisions of Subparts A through Q of this part.
20 C.F.R. § 416.2015(c). The regulation governing the calculation of state supplementary payments emphasized the role of deeming of spousal income:
In the case of an eligible individual living with an ineligible spouse with income ... the federal benefit rate from which Countable Income will be deducted is the federal benefit rate applicable to a couple.[8]
20 C.F.R. § 416.2025(b)(1) (emphasis supplied). The regulations then set forth the balance of the mathematical formula:
(2) If Countable Income is equal to or less than the amount of the federal benefit rate, the full amount of the state supplementary payment as specified in the federal agreement will be made.
(3) If Countable Income exceeds the amount of the federal benefit rate, the state supplementary payment will be reduced by the amount of such excess.
(4) No state supplementary payment shall be made where Countable Income is equal to or exceeds the sum of the federal benefit rate and the state supplementary payment rate.
20 C.F.R. § 416.2025(b) (emphasis supplied). In other words, the Countable Income of the applicant minus the federal benefit is compared to the state supplementary payment level "as specified in the federal agreement." 20 C.F.R. § 416.2025(b)(2).
The Secretary has clarified this directive, not in the regulations, but in the Social Security Manual:
The fact that a couple computation is used to determine the federal payment should not affect the appropriate state standard. For example, if a state has one standard for an individual in a deeming situation and another for a couple, it would still be appropriate to use the individual standard even though a couple standard is used for the federal portion of the benefit.
Program Operations Manual System ("Manual"), § SI 99850.220. Therefore, after deeming spousal income to an eligible individual's Countable Income and comparing this total Countable Income to the federal SPL for a couple, the Secretary nonetheless applies the state supplementary payment level for an individual. An attenuated version of the Secretary's own example, id., best illustrates this approach:
$600.00 Eligible individual's income
360.00 Ineligible spouse's income
_______
$960.00 Total income attributed to eligible
individual
*951
- 60.00 Income exclusion
_______
$900.00 Countable Income
-800.10 Federal SPL for couple
_______
$ 99.90 Excess Countable Income
$261.60 State SPL for individual
- 99.90 Excess Countable Income
_______
$161.70 State supplement payable
Despite the language of her own regulations, particularly the directive that the state supplement be determined pursuant to the preceding provisions governing federal benefit payments, 20 C.F.R. § 416.2015(c), the Secretary insists that her computation method, as set forth in the Manual, is a correct and valid interpretation of both the regulations and the statutory mandate.
The Secretary maintains that she is under no obligation to apply the federal benefit calculations to the computations for state supplementary payments. Rather, she is required, by virtue of the statute, 42 U.S.C. § 1382e, her own regulations, 20 C.F.R. Subpart T, and the Agreement between her Department and the Commonwealth, to apply the state SPL applicable of an individual, even when that individual lives with an ineligible spouse. In support of this contention, the Secretary notes that the Agreement does not designate a separate living arrangement for an individual living with an ineligible spouse, Agreement, Tr. at 528, even though federal regulations would permit a state to so designate in its agreement. 20 C.F.R. § 416.2030(a)(2). The Secretary reasons that in the absence of such a stipulation by a state, she must apply the SPL of an eligible individual, whether or not the claimant lives with an ineligible spouse, and whether or not the claimant's Countable Income has been subjected to deeming of the ineligible spouse's income. Plaintiffs, however, maintain that under the statute governing the program and the regulations as written, the Secretary is required to apply the state SPL of a couple to decide the amount of the state supplementary payment due an individual whose Countable Income includes deemed spousal income. Absent specific findings and published regulations by the Secretary that the state supplementary provisions can be administered otherwise, the Secretary is required by virtue of both the Social Security Act, 42 U.S.C. § 1382e, to apply the state SPL assigned for a couple when an applicant's income has been deemed to include the income of the ineligible spouse.
A fair reading of the Social Security Act, its legislative history, the Federal-State Agreement and the Secretary's own regulations supports the plaintiffs' contentions.
V. THE ANALYSIS
The statute which controls the instant dispute states that the state optional supplementary payments shall be made subject to the rules, regulations and provisions of the Secretary as she finds necessary to achieve the efficient and effective administration of both the federal and state's programs. 42 U.S.C. § 1382e(b)(2). In so legislating, Congress noted:
In general, it is anticipated that the same rules and regulations would be applied to both federal and state supplemental payments with the only difference being the level of such payments. However, the Secretary could agree to a variation affecting only the state supplement if [s]he finds [s]he can do so without materially increasing [her] costs of administration and if [she] finds the variation consistent with the objectives of the program and its efficient administration.
H.Rep.P.L. 92-603, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad. News, 4996, 5185. In 1977, the Committee on Finance to the United States Senate issued a Report on the Supplemental Security Income Program. This Report reaffirmed the Congressional commitment to uniformity of administration and expressly quoted the above passage of legislative history. The Committee observed that "such variations should be the exception rather than the rule and ... should be agreed to only when they would not materially affect either the cost or efficiency of the program's administration." Sen.Rep. on Supplemental *952 Security Income, 95th Cong., 1st Sess. at 70 (1977).
The Committee further noted:
The Department [of Health and Human Services] apparently decided that the rules on state supplementation were open to negotiation with the states rather than being determined by the statute. Accordingly, the Department has entered into agreements to administer a wide variety of different types of variations ....
... The number and complexity of the variations available to the states ... constitute a considerable administrative burden on the Social Security Administration and also represent a significant departure from the enacted nature of the program as one which would involve a flatgrant approach to income maintenance. Both of these results are clearly contrary to the stated legislative history.
Id. at 70 (emphasis supplied). Most importantly, the Committee commented that the Secretary's policy of permitting states to control the assignment of so varied an array of payment levels was contrary to the statute as written and as interpreted by the House Report:
The legislative policy decision that was made and that should have been considered binding by the administrative agency was to allow only the most simplified types of state supplementation. Departure from that should have occurred only with legislative authorization which was never given or, for that matter, sought.
Id. at 71.
Shortly after this Report issued, the Secretary promulgated revised regulations governing the administration of both federal and state components of the SSI programs. Regulations governing deeming of spousal income were promulgated, and the calculations for computation of state supplemental payments were amended. 43 Fed.Reg. 39566. However, the Secretary continued to permit states to elect up to nine categories and five "living arrangement" variations. Despite its regulatory mandate to administer both programs under the same rules, 20 C.F.R. 416.2005(d), and despite its explicit incorporation by reference of the federal calculation method, 20 C.F.R. § 416.2015(c), the Secretary continued to apply the state individual standard payment level to all individuals, whether or not their Countable Income included income deemed from their ineligible spouses. Manual, supra.
The Federal-State Agreement entered into by the Commonwealth recognizes that the Secretary retains full control with respect to the administration of state supplementary payments. Agreement, Article III H, Tr. at 493. The Secretary's contention that she is without authority to apply any state payment level but the individual, regardless of the manner in which Countable Income is derived is supported by neither the statutory mandate, its legislative history, the Federal-State agreement, nor the Secretary's own regulations.
When a court is asked to consider whether an agency's interpretation of its own regulations is valid, it must do so in light of the standards which guide judicial scrutiny of an agency action.
It is well settled that courts should afford considerable respect to an agency's interpretation of its own regulations. Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 566, 100 S. Ct. 790, 797, 63 L. Ed. 2d 22 (1980). This is especially true when the Social Security Act is at issue for, as has been noted, its "Byzantine construction makes the Act almost unintelligible to the uninitiated .... Congress has therefore conferred on the Secretary exceptionally broad authority to proscribe standards for applying certain sections of the Act." Batterton v. Francis, 432 U.S. 416, 425, 97 S. Ct. 2399, 2405, 53 L. Ed. 2d 448 (1977). Particularly, "matters of accounting, unless they be the expression of whim rather than an exercise of judgment, are for the agency." Hospital San Jorge v. Secretary of Health, Education and Welfare, 616 F.2d 580, 589 (1st Cir.1980) (Campbell, J., concurring) (quoting American Telephone and Telegraph Co. v. United States, 299 *953 U.S. 232, 234, 57 S. Ct. 170, 172, 81 L. Ed. 142 (1936)). Generally, therefore, the Secretary's interpretation is of controlling weight unless it is plainly erroneous or inconsistent with the regulation. Udall v. Tallman, 380 U.S. 1, 16-17, 85 S. Ct. 792, 801-802, 13 L. Ed. 2d 616 (1965). As the Court of Appeals for the First Circuit has stated:
Our deference to an agency's interpretation of its own regulations is not total. We still must examine the agency's interpretation to determine if it is consistent with the language of the regulation and with the purpose which the regulation is intended to serve .... Should we decide to accept the agency's interpretation of its regulation, we must then consider whether the regulation so interpreted is consistent with the statute under which it is promulgated.
Cheshire Hospital v. New Hampshire-Vermont Hospitalization Service, Inc., 689 F.2d 1112, 1117-18 (1st Cir.1982) (citations omitted). In light of the foregoing standards and this Court's reading of the applicable statutes and regulations, this Court concludes that the Secretary's calculations of the state supplementary payment levels is erroneous at law and must be set aside.
The Secretary's regulations clearly state that the methodology applicable to the state supplementary payment levels is to be the same as that which is used for federal benefit computation. 20 C.F.R. § 416.2015(d). The statute provides that the same rules and regulations will apply unless the Secretary makes findings that a deviation is necessary for the efficient and effective administration of both the federal and state programs. 42 U.S.C. § 1382e. The record is devoid of any indication that the Secretary found, even in the most informal sense, that a deviation from the federal computation method was necessary. The Secretary only asserts that she has no discretionary power to apply the couple's standard to the state payment.
The Secretary insists the Massachusetts Agreement has assigned all individuals, even those living with ineligible spouses whose income has been deemed to be paid, only the SPL of the individual. I cannot agree with this interpretation of the Federal-State Agreement. Living Arrangement A directs that full cost of living will be applied to all persons living independently, whether they live alone, with an ineligible spouse or child, or with an eligible spouse or child. Were the Secretary's view accepted, even benefits for eligible couples would be paid with reference to the individual state SPL. Massachusetts, therefore, has not expressly directed that applicants to whom spousal income has been deemed must be given benefits with reference to the state SPL for an individual. I believe the Secretary has underestimated her authority and her obligations under the Social Security Act.
In the absence of findings to justify a variance, the Secretary is obliged by the terms of the governing statute and her own regulations to compute the state supplementary payment in the same manner as is used to determine federal benefit payment. The Secretary is therefore obligated to compare the "excess Countable Income" of an eligible applicant to whom spousal income has been deemed with the state SPL for an eligible couple, subject, of course, to the windfall proviso, 20 C.F.R. § 416.1163(c)(1), preventing unjust enrichment to the applicant. Accordingly, the Secretary's practice of applying the state individual SPL is erroneous and must be set aside.
VI. THE REMEDY
Having concluded that the plaintiffs' motion must be granted in part on the basis of the merits, it is now necessary for the Court to consider the issuance of appropriate remedial orders.
This action was brought in accordance with the provision for judicial review in the Social Security Act, 42 U.S.C. § 405(g), as incorporated by 42 U.S.C. § 1383(c)(3). Plaintiffs have asked for several forms of relief. They request an order declaring the Secretary's method of computing eligibility for and the amount of optional state supplementary *954 payments erroneous at law. Plaintiffs further request an order permanently enjoining the Secretary from henceforth calculating eligibility and amount of these payments in a manner inconsistent with the statute and regulations which govern the administration of these payments. I believe that both these requests are permissible and appropriate, Johnson v. Mathews, 539 F.2d 1111 (8th Cir.1976). Since this case was properly maintainable as a class action under Fed.R.Civ.P. 23, Memorandum and Order dated January 11, 1982, and since Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), confers jurisdiction on this Court to hear the individual claims of the class members, injunctive relief provides the best procedure by which the power of this Court may be exercised in a single appropriate procedure. This Court will therefore enter an order declaring that the method by which the Secretary has previously calculated the eligibility for and amount of the optional state supplementary payment is erroneous. Further, the Secretary shall henceforth be permanently enjoined from calculating such benefits in a manner inconsistent with those regulations.[9]
Pursuant to Section 205 of the Social Security Act, 42 U.S.C. § 405(g), this Court has the power to affirm, reverse, or remand the decision of the Secretary on any of the applications which qualify for judicial review. Eight such applications are complete and before the Court. In accordance with the statutory grant of power, I believe that the Court is vested with the power to order the decisions of the Secretary in these eight cases reversed and remanded for recalculation of all benefits, past and future. For the reasons stated herein, I believe that such orders are not appropriate, either for the eight named plaintiffs or for the members of the class which they represent. However, the applications of plaintiffs Barry and Pinnex will be reversed and remanded to the Secretary for recalculation of future state supplementary payments due them.
Plaintiffs have cited several cases for the proposition that this Court routinely orders "retroactive" payments of benefits due claimants under the Social Security Act. Plaintiffs' Post-Hearing Memorandum at 11, n. 3. However, these cases are inapposite. First, all orders cited in which the Secretary's decision was reversed involved cases in which this Court reviewed the agency's factual findings under the "substantial evidence" test. 42 U.S.C. § 405(g). In the case at bar, however, the Court has concluded that the actions of the Secretary were erroneous at law. Further, all cases cited involved the combined benefits available under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et seq., or benefits distributed under Title II of the same Act, 42 U.S.C. §§ 402 et seq. The instant case, on the other hand, addresses only the state portion of the Title XVI program and, as such, is unique. Courts have ordered retroactive application of decisions concerning programs which are solely the responsibility of the federal government, Jimenez v. Weinberger, 523 F.2d 689 (7th Cir.1975), Jones v. Califano, 576 F.2d 12 (2d Cir. 1978), Wright v. Califano, 603 F.2d 666 (7th Cir.1979). None has ordered retroactive *955 application for programs administered by a federal agency, but funded by a state. The case at bar is unique, and this Court must be especially cautious to avoid any order which may disturb the delicate balance the statute governing the Title XVI program is intended to strike between the federal government and the participating states.
In Jimenez, 523 F.2d at 689, the court addressed the issue of retroactivity and applied the test first articulated in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349, 30 L. Ed. 2d 296 (1971), to decide the appropriateness of retroactive application. Chevron provides that a court should consider three factors:
First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed .... Second, it has been stressed that `we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.' Finally, we have weighed the inequity imposed by retroactive application for `where a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the "injustice or hardship" by a holding of nonretroactivity.'
404 U.S. at 106-07, 92 S.Ct. at 355 (citations omitted). The Chevron test, therefore, assumes that a law will be applied retroactively unless the court finds that circumstances compel the opposite result. I believe that the circumstances of the instant case compel this Court to limit the application of the principles announced today to prospective relief only.
First, to my knowledge, the issue decided in the instant case is one of first impression. Unlike the tug-of-war now ensuing between the Secretary and the judiciary of the Ninth Circuit, Lopez v. Heckler, 725 F.2d 1489 (9th Cir.1984), the Secretary has not wilfully ignored prior cases which have challenged her interpretation of the regulations governing optional state supplementary payments.
Secondly, Congress clearly intended, and sought to encourage, widespread participation in federal-state agreements. Despite the hold-harmless provision, P.L. 92-603 § 401(a)(1), the Commonwealth would be responsible for a portion of the underpayments revealed by the execution of an order for recalculation of optional state supplementary payments. To hold states vulnerable to fiscal liability brought about by the Secretary's erroneous methodology, particularly on a class-wide basis, would discourage states from entering these agreements. A court should design remedies that will encourage states to carry out Congress's intent. Cf. Foggs v. Block, 722 F.2d 933 (1st Cir.1983). Retroactive application would frustrate the legislative goal of encouraging state participation.
Finally, this Court must consider whether retroactivity would produce substantial inequitable results. I believe that inequity would result, particularly with respect to retroactive application, to the entire class. The Secretary would bear the administrative burden of recalculating the applications of all class members, and this is a formidable task. The Secretary was able to venture a mere guess as to the numbers of claimants actually affected by past practices. The Secretary submitted, by way of answers to interrogatories, that it would be impossible to determine the exact numbers and identities of all persons for whom benefits were denied, terminated or reduced due to prior methods of calculating the optional state supplementary payments, Answers to First Set of Interrogatories, Nos. 2 and 5, and objected to the requests on the grounds of burdensomeness. The plaintiffs did not refute the objection or the responses given by way of argument or offer of proof. I must conclude, therefore, that an order for recalculation of state benefits on a class-wide basis would present a task so formidable to the Secretary *956 that it would divert agency attention away from the already considerable obligation of processing present applications.
I must also conclude that substantial inequity would result even if the order for recalculation were limited to the named plaintiffs, and this inequity would accrue to the state and its citizens.
If, upon recalculation, the Secretary were to conclude that plaintiffs had been underpaid, the Commonwealth would be responsible for the underpayments. Federal-State Agreement, supra. Plaintiff suggests that if the Commonwealth were sufficiently aggrieved by this result, it would withhold reimbursement from the federal government. The Secretary then could sue the Commonwealth for the amount owed. Plaintiff's Post-Hearing Memorandum at 5. This is hardly a desirable solution. The legislature intended Title XVI to be a program of cooperation between the federal government and participating states. Were this cooperation disrupted, a state could decide to withdraw from participation. If it still desired to offer an optional state supplement to the Title XVI program, it could choose to administer the distribution of those payments itself, but such a choice would divert state monies away from direct payments to needy recipients and towards the cost of administration. The diversion of state monies towards administrative costs is not in the best interests of its needy citizens, some of whom would be deprived of benefits essential to survival.
I conclude, therefore, that the principles announced in this decision today shall not be applied retroactively. The Secretary's decisions on the applications of the eight named plaintiffs and the members of the class represented shall not be disturbed as far as past-due benefits are concerned. However, the applications of plaintiffs Barry and Pinnex will be reversed and remanded to the Secretary for recalculation of future benefits due them from the date of issuance of the accompanying Order, in accordance with this Memorandum. 42 U.S.C. § 405(g).
Appropriate Orders shall issue.
ORDER AND JUDGMENT
This matter came before me upon cross-motions for summary judgment. Having considered the arguments of the parties presented upon briefs and oral argument, and, in accordance with the Memorandum issued on this same date, I hold that the motion of the defendant Secretary of Health and Human Services must be, and hereby is, DENIED. Likewise, the motion of the plaintiffs is GRANTED in part and DENIED in part, Fed.R.Civ.P. 56. Plaintiffs' prayer for retroactive application of the principles enunciated today must be DENIED for the reasons set forth in the accompanying Memorandum. It is therefore adjudged and ordered that:
1. The method by which the Secretary has calculated the eligibility for and amount of the optional state supplementary payment to the Supplemental Security Income Program, 42 U.S.C. §§ 1381 et seq., authorized under Chapter 118A, §§ 1 et seq. of the Massachusetts General Laws and the Agreement executed between the Secretary and the Commonwealth of Massachusetts, is inconsistent with the Secretary's regulations governing the computation, 20 C.F.R. Subpart T, and the statute under which those regulations were promulgated. 42 U.S.C. §§ 1381 et seq.
2. The Secretary is hereby permanently enjoined from calculating the eligibility for and amount of the optional state supplementary payment to the Supplemental Security Income Program in a manner inconsistent with the statutory and regulatory mandate. State supplementary payments authorized by the Commonwealth of Massachusetts shall henceforth be calculated in accordance with the provisions set forth in the statute and regulations.
3. The decision of the Secretary in the action of plaintiff Barry is reversed insofar as future state supplementary payments are at issue. The case is remanded to the Secretary for recalculation of future state *957 supplementary payments, effective this date, in accordance with this Court's Order and accompanying Memorandum. The Secretary's decisions as to the remaining named plaintiffs are hereby affirmed. 42 U.S.C. § 405(g).
It is So Ordered.
NOTES
[1] Bouchard, et al. v. Secretary of Health and Human Services, C.A. No. 78-0632-F, combined the administrative appeals of seven named plaintiffs. The action was subsequently certified as a class by Order of the Court. Pinnex v. Secretary of Health and Human Service, C.A. No. 80-0319-F, seeks review of a final decision of the Secretary, 42 U.S.C. § 405(g) and was consolidated with the class action because Pinnex qualified for class membership and her review claims legal grounds identical to those raised by the class.
[2] Persons are "categorically" eligible for Supplemental Security Income if they are aged (over sixty-five years of age), blind or disabled. 42 U.S.C. §§ 1381 et seq.
[3] Plaintiff Svoboda's case was consolidated with the applications of plaintiffs Turgeon, Stephens and DeDeurwaerder. Other named plaintiffs in this case are Sypulski, whose application was approved by the ALJ but overruled by the Appeals Council, and plaintiff Barry, whose application was denied at all levels. Plaintiff Pinnex's appeal was consolidated with this case after the class was certified.
[4] The legislation also includes a "grandfather" provision to guarantee recipients under the old programs that their benefits would not be reduced. P.L. 93-66 § 212, notes following 42 U.S.C. § 1382. This so-called "mandatory" supplement is not at issue in this case.
[5] States can, however, set residency requirements and may disregard additional amounts of income. 42 U.S.C. § 1382e(c).
[6] These are assigned when one individual in the couple is:
(i) aged and the other blind, or
(ii) aged and the other disabled, or
(iii) blind and the other disabled.
42 C.F.R. 416.202(d)(e).
[7] Deeming is authorized for determinations under Medicaid, 42 U.S.C. § 1396a(a)(17), and Aid To Families With Dependent Children, 42 U.S.C. § 602.
[8] This phrase was introduced by amendment in order to conform the state supplementary computations provision with the deeming regulations. 43 Fed.Reg. 39,566 (commentary accompanying proposed regulations, codified at 20 C.F.R. § 416.2025(b)(1)).
[9] The defendant has voiced no objections to any declaratory or prospective injunctive relief. The Secretary does contend, however, that this Court is without power to enter an order which would require recalculation of past benefits reduced, terminated, or denied to the named plaintiffs or the class which they represent. As grounds for this contention, the Secretary raises an issue of sovereign immunity. I should hasten to point out that the Secretary does not assert the immunity of the federal government from suit. Rather, she asserts that the Eleventh Amendment bars this action because any such order would amount to an award of retroactive money damages payable out of the state treasury, Edelman v. Jordan, 415 U.S. 651, 94 S. Ct. 1347, 39 L. Ed. 2d 662 (1974). Because of the result reached on the issue of remedy, it is not necessary for the Court to consider this contention at any length. Suffice it to say Edelman, supra, is distinguishable on its facts and therefore does not control the instant action. For the purpose of fashioning the instant remedy, the Court will assume without deciding that the Eleventh Amendment is not a bar to retroactive monetary relief when neither the State nor any of its officials is a party to the action. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598061/ | 158 N.W.2d 147 (1968)
STATE of Iowa, Appellant,
v.
Roger WARDENBURG, Appellee.
No. 52587.
Supreme Court of Iowa.
April 9, 1968.
*148 Richard C. Turner, Atty. Gen., David A. Elderkin, Asst. Atty. Gen., William G. Faches, County Atty., and Eugene J. Kopecky, Asst. County Atty., Cedar Rapids, for appellant.
Keith E. Stapleton, Cedar Rapids, for appellee.
MASON, Justice.
A Linn County grand jury indicted defendant Roger Wardenburg for the crime of forgery, contrary to section 718.1, 1962 Code of Iowa. At arraignment defendant pleaded not guilty. Some weeks later trial to a jury was commenced and, after the State had presented its evidence and rested, defendant moved to dismiss the charge. He asserted in paragraphs 1 and 2 of his motion the State had failed to establish beyond a reasonable doubt that (1) any public offense had been committed in Linn County and (2) the Linn district court had jurisdiction of any public offense alleged to have been committed by defendant which jurisdiction is contemplated by Code section 753.2. The trial court sustained the motion as to the grounds asserted in these paragraphs.
The State appeals, assigning as the sole error relied upon the trial court's sustaining defendant's motion to dismiss at the close of the State's evidence for the reason there was insufficient evidence to establish the venue of the offense.
I. Section 793.1, Codes, 1962, 1966, gives the State the right to appeal in a criminal case. It is settled in Iowa that an appeal by the State will be permitted only if it "involves questions of law, either substantive or procedural, whose determination will be beneficial generally, or guide the trial courts in the future * * *." State v. Kriens, 255 Iowa 1130, 1131, 125 N.W.2d 263, 264, and citations. But there are statutory limitations upon the effect or results of that appeal. Code section 793.20 provides that if the State appeals, this court cannot reverse or modify the judgment in favor of defendant so as to increase the punishment, *149 "but may affirm it, and shall point out any error in the proceedings or in the measure of punishment, and its decision shall be obligatory as law."
In support of its assigned error the State initially argues that sufficient evidence consisting of a considerable number of enumerated facts was produced from which "a jury could decide the issue of venue."
Ordinarily on appeals by the State from a judgment on directed verdict for defendant, involving sufficiency of the evidence to establish the charge, we will not review the record to determine the correctness of the decision. A pronouncement from us on the fact situation in one case rarely serves any good purpose in determination of future cases. Such appeals by the State are useless. While the matter of sufficiency or insufficiency of the evidence is a question of law, this court will refuse to review the record where it will benefit no one. State v. Wickett, 230 Iowa 1182, 1185, 300 N.W. 268, 269-270. In other words, to review an appeal by the State some general benefit or guide to the trial courts or profession must be shown.
If this contention were the only one raised, we would be inclined to dismiss the appeal as presenting no question of law we are required to review. However, the attorney general requested and was granted permission from us to file supplemental brief and argument on appellant's side. He contends there is a presumption or inference that an instrument was forged in the county where its existence was first known or it was offered in a forged condition which will suffice to sustain the venue of a forgery prosecution in that county unless there is other evidence to overcome that conclusion. We believe a determination of this query is desirable.
II. Before discussing this contention further, we briefly narrate the facts. Jack's Store, a discount department store in Cedar Rapids, is owned by Walter Fineberg of Minneapolis. In February 1966 he employed defendant, who resided with his wife in Cedar Rapids, as manager of this store. Defendant's duties included supervision of the help, sales and marketing of merchandise, making bank deposits and reporting employees' time.
Store employees were paid weekly through Saturdays. Each Monday defendant would telephone Mr. Fineberg in Minneapolis to advise him how many hours each employee had worked through the previous Saturday. Fineberg would then issue and mail individual checks to defendant in Cedar Rapids to be distributed.
Monday, August 15, defendant reported the times of various employees including Kathie Welsh, a clerk who had been employed in the Cedar Rapids store approximately six months. When defendant reported Mrs. Welsh had 32 hours coming and that he had discharged her Friday, August 12, Mr. Fineberg called her to inquire whether she wanted her check mailed to the store or to her home. He then learned she had been discharged August 5 and paid August 9; that she didn't have any money coming for the week ending August 13. However, August 16 Fineberg issued a check in the amount of $41.05, payable to Kathie Welsh, and mailed it to defendant along with other checks, including one payable to him, to meet the Cedar Rapids payroll. All paychecks were signed by Mr. Fineberg.
Later Fineberg picked up this check at the First Hennepin State Bank of Minneapolis where his account had been debited with the amount thereof. At the trial he identified the State's exhibit 1 as the check mailed at defendant's request as Mrs. Welsh's final payment. This is the check upon which the indictment is based.
Mrs. Welsh testified her employment at Jack's Store terminated August 5; she had never received the check identified as State's exhibit 1 or any payment therefrom; the endorsment on the check, "Kathie Welsh," was not her signature, and she had *150 not given defendant or anyone else permission to sign her name.
While employed at Jack's Store Mrs. Welsh borrowed $400 from Merchants National Bank in Cedar Rapids plus $200 from defendant to purchase a car. Defendant secured the money he loaned Mrs. Welsh from the same bank. At the time of her discharge she had repaid defendant all but $40.
The State introduced a known exemplar of defendant's handwriting identified as exhibit 2 which was used by the State's handwriting expert in forming his opinion that the same person who had written exhibit 2 wrote the endorsement on the State's exhibit 1 and this endorsement was not written by the same person who had written the State's exhibit 3, an exemplar of Mrs. Welsh's handwriting.
On the back of exhibit 1 was a rubber stamp. Although all words were not legible, "Pay any Bank, P.E.G., The Merchants National Bank of Cedar Rapids, Iowa" appeared. In ruling on defendant's motion, the trial court emphasized the fact the State had offered no evidence tending to show the meaning of the quoted words; no bank officer or employee was called to testify this was the stamp of the Merchants National Bank or that it meant in the normal course of business the check was originally negotiated at this bank in Linn County. He then determined the rubber stamp alone did not have this probative value and testimony as to the meaning of the stamp was essential to support the State's contention the check had been uttered in Linn County.
III. Courts have long recognized the difficulty of proving by direct evidence the location where a forgery actually occurred, due to the very nature of the act itself. See Annotation 164 A.L.R. 621, 649-660.
Acts of this sort are not usually done in the presence of witnesses but in places of concealment, with a view to prevent detection; and it is rarely that the prosecution can offer any evidence of the place of forgery, except that which arises from the utterance of the forged instrument. Because of this obvious difficulty, courts have relied on various presumptions or inferences to permit a finding of proper jurisdiction and venue, in order to make prosecution possible. Usually these presumptions or inferences result from defendant's possession or uttering of the forged instrument.
Ordinarily, "jurisdiction, as contrasted with venue, refers to the power of the court to decide an issue on its merits, whereas venue refers to the place where the cause sued upon should be tried." O'Kelley v. Lochner, 259 Iowa 710, 145 N.W.2d 626, 627; and Hulburd v. Eblen, 239 Iowa 1060, 1064, 33 N.W.2d 825, 827.
"It is the well-settled law in this State that the jurisdiction of the district court is limited to offenses committed within the county in which the court is held. Section 13449, Code, 1935 [Now section 753.2, Code, 1966]. This statute provides that: `The local jurisdiction of the district court is of offenses committed within the county in which it is held.'
"Under this statute a conviction cannot be sustained unless the State proves that the crime was committed within the county in which the indictment was returned. * * *" State v. Brooks, 222 Iowa 651, 652, 269 N.W. 875.
State v. Ladd, 252 Iowa 487, 489, 106 N.W.2d 100, 101, relying on the Brooks case, interprets this statute as making venue a jurisdictional fact the State must prove as a vital ingredient of any prosecution and, unless the court takes judicial notice thereof or the accused admits it, the same must be shown by competent evidence either direct or circumstantial. See also State v. Stumbo, 253 Iowa 276, 278, 111 N.W.2d 664, 665; and 23 C.J.S. Criminal Law § 914a.
Venue is put in issue by a plea of not guilty. Sharp v. Waddill, Ky., 371 S.W.2d 14, and citations.
*151 IV. We believe it would be beneficial as a guide to the trial courts and the profession for us to determine the degree of certainty required by law for the State to establish venue in a criminal prosecution.
In announcing his ruling the court stated:
"One of the things the State must prove in every criminal prosecution is that the offense charged took place within the county of prosecution. In this case they have to prove not only there was forgery committed and defendant committed the forgery, but must also prove beyond a reasonable doubt this forgery was committed in Linn County."
There is a split of authority on whether venue must be proved beyond a reasonable doubt or by a preponderance of evidence. In State v. Wiedenfeld, 229 Wis. 563, 282 N.W. 621, 623, it is said:
"* * * [I]n twenty-seven jurisdictions, including Wisconsin, it is held that venue in a criminal case must be proved beyond a reasonable doubt." The opinion does not list jurisdictions supporting this view but our own research indicates such rule has been announced in the following cases: Musselwhite v. State, 217 Ga. 755, 125 S.E.2d 46, 47; People v. Church, 366 Ill. 149, 7 N.E.2d 894, 898; State v. International Paper Co., 201 La. 870, 10 So. 2d 685, 686; Presley v. State, 217 Miss. 112, 63 So. 2d 551, 554-555; State v. Elmore, 126 Mont. 232, 247 P.2d 488, 493; State v. Domer, 1 Ohio App. 2d 155, 204 N.E.2d 69, 79; State v. Cooksey, 242 Or. 250, 409 P.2d 335, 336; and Smazal v. State, 31 Wis. 2d 360, 142 N.W.2d 808, 809.
Among jurisdictions holding only a preponderance of evidence is required are: Nobles v. State, 189 Ark. 472, 74 S.W.2d 247, 248; People v. Cavanaugh, 44 Cal. 2d 252, 282 P.2d 53, 59; Chaudoin v. State, Fla.App., 118 So. 2d 569, 572; Literal v. Commonwealth, 250 Ky. 565, 63 S.W.2d 587, 590; State v. Glasscock, 76 N.M. 367, 415 P.2d 56, 57; People v. Hetenyi, 304 N.Y. 80, 106 N.E.2d 20, 21-22; Holsonbake v. State (Okl.Cr.), 416 P.2d 178, 179; State v. Brown, 97 R.I. 95, 196 A.2d 138, 141; Stinson v. State, 181 Tenn. 172, 180 S.W.2d 883, 885; King v. State, 166 Tex. Crim. 231, 312 S.W.2d 501, 505; State v. Mitchell, 3 Utah 2d 70, 278 P.2d 618, 620; and State v. Stafford, 44 Wash.2d 353, 267 P.2d 699, 701.
We have been unable to find that the question has been directly passed on by this court. However, in State v. Brooks, 222 Iowa 651, 652-653, 269 N.W. 875, 876, defendant had been convicted of rape in the Polk district court. On appeal he asserted the State had failed to prove by sufficient evidence that venue of the offense was in Polk County. The court sets out what is now Code section 753.2 and notes that a conviction under it cannot be sustained unless the State proves the offense was committed in Polk County, which is where the indictment was returned. The trial court instructed the State must prove beyond a reasonable doubt the offense was committed in Polk County and because the defendant did not except to the instruction we held on appeal that this instruction was the law of the case. The venue question was not further considered.
Difference of position in the various jurisdictions passing on the question seems to be based on whether venue is regarded in that jurisdiction as being a material part of the offense or material allegation of the indictment on the one hand or as not being an integral part or a material element of the offense on the other. Others do not specifically state their rationale. See 30 Am.Jur. 2d, Evidence, section 1174.
We prefer to continue in our position that venue is a jurisdictional fact which the State must prove as a vital ingredient of any prosecution. In order to secure a conviction in a criminal prosecution it is necessary to show not only that the act denounced as a crime has been committed but that it has been committed within the territory where the law invoked for its punishment prevails.
*152 We therefore hold venue must be proved beyond a reasonable doubt.
V. Although the burden of proof is to convince beyond a reasonable doubt, the State can generate a jury question on the issue of venue by producing evidence which is either direct or circumstantial from which it may be inferred. No positive testimony that the violation occurred at a specific place is required, it is sufficient if it can be concluded from the evidence as a whole that the act was committed in the county where the indictment is found. Circumstantial evidence may be and often is stronger and more convincing than direct evidence.
"* * * If, from the facts and evidence, the only rational conclusion which can be drawn is that the crime was committed in the state and county alleged, the proof is sufficient. * * *" 30 Am.Jur.2d, Evidence, section 1131.
Our own cases support the foregoing statement. State v. Waterbury, 133 Iowa 135, 139, 110 N.W. 328, 329, quoting 2 Bishop, Criminal Proc., section 433; State v. Meyer, 135 Iowa 507, 511, 113 N.W. 322, 324; State v. Caskey, 200 Iowa 1397, 1398, 206 N.W. 280, 281; and State v. Ostby, 203 Iowa 333, 338, 210 N.W. 934, 935, 212 N.W. 550, where the court said: "We have also determined that venue may be proved by inference as well as by direct assertion by the witness [citing cases]. In other words, a sum total of these holdings is that the witness need not testify in words that the crime was committed within the county in question, but that such fact, if fairly inferable from the testimony given, is sufficient to carry the question of venue to the jury."
A summary of approaches to the problem is well stated in 164 A.L.R. 621 at 650:
"* * * [I]t may be said at the outset that the general import of most of the cases, whether they refer to the matter as one of presumption, or prima facie evidence, or inference, is that evidence showing that the defendant uttered or had possession of the forged instrument in a particular county will suffice to show that the place of the forging was in that county, at least in the absence of direct evidence showing the contrary or circumstances or testimony repelling that conclusion. In other words, a showing of defendant's possession or uttering of the forged instrument within the county will generally suffice to carry to the jury the issue of venue in a forgery case in which venue is laid in the county of such possession or uttering.
"There is a substantial amount of authority to the general effect that in a trial for forgery, where it is shown that the instrument was a forgery and was first found in its forged condition when it appeared in the possession of the defendant in a particular county, it may be presumed, in the absence of testimony or circumstances repelling that conclusion, that the forging was done in the county where the forged instrument was first uttered by the defendant or found in his possession."
VI. When a forged instrument is uttered or attempted to be uttered, in the absence of evidence to the contrary, it may be presumed prima facie to have been forged in the county where it is so uttered, or the attempt made. But such a presumption depends upon proof that the uttering was by the same person charged with the alteration, or that the one so charged had possession of the instrument where the uttering occurred. Heard v. State, 121 Ga. 138, 48 S.E. 905, 906; Cole v. State, 232 Md. 111, 194 A.2d 278, 281; State v. Douglas, 312 Mo. 373, 278 S.W. 1016, 1022, and citations; 1 Wharton, Criminal Evidence (Twelfth Ed.), section 92, footnote 5, 1968 pocket supplement; and 36 Am.Jur.2d, Forgery, section 45.
Of course, where the accused can be positively identified as having uttered the forged instrument, the prosecution does not necessarily have the venue problem of forgery as defendant may there be charged with uttering contrary to Code section 718.2.
*153 VII. Generally courts, when considering the matter of presumptions, prima facie evidence and inferences in connection with venue in forgery cases, have combined those involving uttering or attempts to utter with those involving possession of a forged instrument. Where the defendant-forger was not himself the utterer, a different problem could be presented as "the making or alteration of any writing with a fraudulent intent, whereby another may be prejudiced, is forgery. It is not essential that any person should be actually injured." State v. Wooderd, 20 Iowa 541, 547.
We believe possession of a forged instrument is prima facie proof, in the absence of testimony or circumstances repelling that conclusion, that the forgery was committed where such possession was first known or found in its forged condition. As supporting this proposition see State v. Johnson, 189 Kan. 571, 370 P.2d 107, 109; Nix v. State, 20 Okla. Crim. 373, 202 P. 1042, 1045, 26 A.L.R. 1053 (1922); and Spencer v. Commonwealth, 2 Leigh 751 (Va.1830); quoted in Cole v. State, supra.
Prima facie proof has been defined as that which standing alone unexplained or uncontradicted is sufficient to sustain the proposition offered and if not rebutted remains sufficient for that purpose. Allied Beauty Products Mfg. Co. v. Chemical Borings Co. of America, 331 Ill.App. 112, 72 N.E.2d 451.
VIII. As indicating circumstances which may properly be considered as bearing on the question of venue in forgery cases see State v. Gibson, 228 Iowa 748, 751, 292 N.W. 786, 787. Gibson, a Cedar Rapids resident, identified as the person who cashed the check, was prosecuted for forgery in Jones County of a check drawn on an Anamosa bank. On appeal she contended that the venue of the crime had not been established in Jones County. In affirming her conviction the court approved the following instruction:
"In this connection you may consider the alleged possession of defendant in Jones County, Iowa, of the check claimed to have been forged, the bank upon which it was drawn, the place of the alleged passing of the check, the alleged residence of defendant, and all of the facts and circumstances disclosed by the evidence bearing upon this question, and from it all, it is for you to determine whether the alleged offense was committed in Jones County, Iowa."
IX. Where the State relies upon circumstantial evidence alone to generate a jury question on the issue of venue, of course, the trial court will instruct on the jury's use of such evidence in deciding whether the State has proved venue beyond a reasonable doubt.
X. While the court in this case based its direction of a verdict upon the claimed failure of the State to establish matters of fact, we believe the court erred on a matter of law by failing to apply a proper rule to the facts before it, namely, there is a presumption that an instrument was forged in the county where its existence was first known or it was offered in a forged condition which will suffice to sustain the venue of a forgery prosecution in that county unless there is other evidence to overcome that conclusion.
The facts to which we believe the trial court should have applied this presumption or inference may be summarized as including the mailing of the check to defendant at Cedar Rapids where he resided and was employed; his forgery of Kathie Welsh's name as an endorsement; the stamp, "Pay any Bank, P.E.G., The Merchants National Bank of Cedar Rapids, Iowa", which means prior endorsements guaranteed as the only other endorsement relied on by the drawee bank as a basis for debiting Fineberg's account; the check being marked "Paid" by the drawee bank which necessarily relied on the genuineness of the endorsement by the Merchants Bank where defendant did business or at least obtained *154 money with which to make Mrs. Welsh a loan.
Of course, the judgment of the trial court is a finality with respect to the discharge of the defendant, but its action in directing a verdict for defendant is
Reversed, but not remanded.
All Justices concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598134/ | 287 So. 2d 393 (1973)
Dan V. McKAY, Appellant,
v.
HIGHLANDS INSURANCE COMPANY, and American Mutual Insurance Company, Appellees.
No. 73-528.
District Court of Appeal of Florida, Third District.
December 21, 1973.
Rehearing Denied January 21, 1974.
*394 Bolles, Goodwin, Ryskamp & Welcher, Miami, for appellant.
Wicker, Smith, Pyszka, Blomqvist & Davant, Spencer & Taylor, Miami, for appellees.
Before PEARSON, CARROLL and HAVERFIELD, JJ.
PER CURIAM.
Defendant-appellant seeks review of an adverse final judgment which (1) declared that defendant was not entitled to coverage under the uninsured motorist provision of the policies issued by plaintiff insurance companies, and (2) ordered dismissal of his counterclaim with prejudice.
On November 23, 1970 defendant-appellant, Dan McKay, an insurance adjuster experienced in the area of uninsured motorist claims, was driving his employer's vehicle which was stopped in a line of traffic on Kendall Drive when it was struck from behind by a truck which caused defendant's vehicle to strike the rear of the car immediately in front of him. After being momentarily stunned, McKay recovered and discussed the collision with the parties involved and inspected the damage. Defendant wrote down the tag number of the auto which he struck, but failed to obtain the license number of the truck or the name of its driver. Because of the traffic and inclement weather, the parties removed their vehicles from the scene and the truck driver agreed to come to defendant's office to exchange information. After the parties departed and began heading north on the Palmetto Expressway, the driver of the truck suddenly turned off and was never seen again by the defendant who proceeded to his office, reported the accident to his supervisor, and filled out a notice of loss form furnished him by his employer, Crawford and Company. Thereafter, defendant left his office to search unsuccessfully in Coral Gables for the truck and the driver. McKay never reported the accident to the police. Highlands Insurance Company, the insurer of Crawford and Company, provided uninsured motorist coverage, but denied coverage because of the failure to report the accident within 24 hours to the police or other authorities as required by the policy. Defendant was insured also under a policy on his wife's automobile with American Mutual Insurance Company, which policy provided uninsured motorist coverage but to which coverage was denied because of insured's failure to report the accident to the police or other appropriate authorities within 24 hours and because of the failure of the insured to give a sworn statement to the insurance carrier within 30 days after the accident as required by the policy.
Plaintiffs, the insurance companies filed a complaint seeking a declaratory decree as to the question of coverage on the uninsured motorist claim of the defendant. McKay filed an answer and a counterclaim. A non-jury trial was held at the conclusion of which the trial judge entered his judgment finding that the 24 hour notice provision in the policies is a valid provision, the defendant failed to comply therewith and thus, not entitled to coverage under the uninsured motorist provision of the respective policies. The defendant was enjoined from prosecuting any claims for uninsured motorist benefits against the plaintiffs and his counterclaim was dismissed with prejudice.
On appeal, defendant-appellant contends that the court erred in not invalidating the *395 notice requirements of the policies because he satisfied the purpose of the requirements by submitting testimony to prove the accident, both plaintiffs received fair notice of the accident and Florida courts have consistently voided exclusionary clauses in uninsured motorist policies. We cannot agree.
We hold that the 24 hour notice requirement to the police or appropriate government authority is a valid provision and condition precedent to obtaining uninsured motorist coverage in order that the police and other interested parties (such as plaintiff insurance companies) may have the immediate opportunity to investigate, search, and possibly apprehend the hit and run driver, thus facilitating inquiry whether the hit and run vehicle was in fact uninsured and allowing the insurer to enforce its subrogation rights against a negligent uninsured hit and run motorist. See California State Automobile Association, Inter-Insurance Bureau v. Blanford, 4 Cal. App. 3d 186, 84 Cal. Rptr. 333 (1970). It is undisputed that defendant McKay, himself an insurance adjuster, failed to report the accident to the police or other appropriate government authority. In addition, we noted from the record that defendant had the opportunity to obtain the necessary information at the scene of the accident with regards to the name of the truck driver and the registration number of his truck, but failed to do so. Instead, he permitted the driver to leave the scene of the accident and "disappear".
Therefore, the trial judge was eminently correct that defendant had not complied with the notice requirement of the respective insurance policies, which was a valid precedent condition to the defendant's obtaining coverage in the case sub judice.
Accordingly, we affirm the judgment herein appealed which found that defendant was not entitled to coverage under the uninsured motorist provisions of the respective policies, enjoined defendant from prosecuting any claims for uninsured motorist benefits against the plaintiffs and dismissed with prejudice defendant's counterclaim.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598130/ | 287 So. 2d 740 (1973)
Robert Emmet VAN METER, Sr., and Lillian Van Meter, Appellants,
v.
Charles Martin MURPHY et al., Appellees.
No. S-424.
District Court of Appeal of Florida, First District.
December 11, 1973.
Rehearing Denied January 29, 1974.
*741 George B. Stallings, Jr. of Stallings & Marr, Jacksonville, for appellants.
Charles Martin Murphy, and Robert J. Horne, Jacksonville, for appellees.
SPECTOR, Judge.
Appellant seeks reversal of an interlocutory order awarding temporary custody of minor children to the Division of Family Services, a state agency, for placement in a foster home.
Appellant, Robert Emmet Van Meter, Sr., and his wife are the paternal grandparents of the children, ages four and five, whose custody is involved. The children's natural parents have been shown to be clearly unfit, the mother having distinct mental problems which would have a detrimental effect on the children; and the father is wholly unfit, being in jail for having sexually molested two of his nieces. There seems to be no question that the children are proper subjects for custodial placement.
In response to appellees' petition for custody of the children here involved, the lower court rendered the order now on appeal and committed the children to the temporary care, custody and control of the appellee state agency for foster home placement. The said order of custody was entered after several hearings over a period of time during which the natural mother spirited the children away during a visit from the home of the paternal grandparents where they had been staying pursuant to agreement or acquiescence of both natural parents. Later the children were placed in the custody of the state, and again while visiting them the mother abducted them and kept them hidden for almost a year but ultimately returned the children.
Upon learning of their return, the paternal grandparents petitioned for custody of the children as did the maternal grandparents. In due course, a hearing was had and the court placed the children temporarily with the state for foster placement.
At the time of the entry of the custody order reviewed herein, the trial court did not have the guiding benefit of a new amendment to the juvenile law that has since been enacted, Chapter 73-231, Section 16, which amends Section 39.10, Florida Statutes, F.S.A., by adding a new subsection (5) thereto which reads:
"(5) In all cases where one or both of the parents of a child is unable or unfit to be awarded custody and where the child has a close relative who is fit, ready, able and willing to be awarded such custody, the court shall award the custody of the child to such close relative *742 and not to any foster home or agency of the state."
Since the above enactment became effective during the pendency of this appeal, we are bound to apply the new law even though it was not extant at the time of the judgment being reviewed. Florida East Coast Ry. Co. v. Rouse, 194 So. 2d 260 (Fla. 1967); Ingerson v. State Farm Mutual Automobile Ins. Co., 272 So. 2d 862 (Fla.App. 1973); R & R Lounge, Inc. v. Wynne, Fla.App., 286 So. 2d 13, Opinion dated November 27, 1973; and State v. Lee, Fla.App., 286 So. 2d 596, Opinion dated November 27, 1973.
Under the new provisions of Section 39.10(5), Florida Statutes, F.S.A., 1973, there is no authority to award custody to a foster home where there are relatives fit ready, willing and able to undertake such custody. It is clear from the evidence adduced below that appellants are able to exercise proper custody and care of these children and their prosecution of this appeal attests to their willingness to do so.
The theme of the new statute has been articulated in the annals of the jurisprudence of this state before, and perhaps it is only now being codified because of the recent trend toward institutionally controlled custody in preference to that of remote blood relatives.
Justice Terrell in Pittman v. Pittman, 153 Fla. 434, 14 So. 2d 671, stated the dichotomy thusly:
"Now if the interest of the child is the first consideration in awarding its custody, as between a stranger, though a very respectable lady, and the grandmother, who is equally as respectable and has shown her devotion to it, the question of what is the best interest of the child would not seem difficult to answer. The prospect of growing up in a modest farm home tutored by a law-abiding, intelligent, religious guardian is one of the greatest opportunities that ever fell athwart the path of a five year old boy. Its potentialities far surpass those of living in a boarding house even though it be operated by Emily Post next door to Utopia."
Reversed and remanded for further proceedings.
WIGGINTON, Acting C.J., and JOHNSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598115/ | (2008)
M.M. and H.M., on behalf of, A.M., Petitioners,
v.
NEW YORK CITY DEPARTMENT OF EDUCATION Region 9 (District 2), Respondent.
No. 07 Civ. 2265.
United States District Court, S.D. New York.
October 21, 2008.
OPINION
SWEET, District Judge.
Plaintiffs, M.M. and H.M., on behalf of A.M., have moved for modified de novo review of the August 3, 2006, administrative Decision of Impartial Hearing Officer ("IHO") Susan M. Kafer and the November 20, 2006, Decision of State Review Officer ("SRO") Paul F. Kelly regarding the adequacy of the Individualized Education Plan ("IEP") for the 2005-2006 school year offered to A.M. by the New York City Department of Education ("DOE" or the "Defendant") pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA" or the "Act"). The DOE has cross-moved for summary judgment pursuant to Rule 56, Fed.R.Civ.P. For the reasons set forth below, the motion of the Plaintiffs is denied, and the cross-motion of the DOE is granted.
Prior Proceedings
A.M. (the "Student") is a young girl with autism who was born on September 6, 2002. The Student's classification as a child with a disability is not in dispute. A.M. began receiving Early Intervention ("EI") services from New York State on or around September 2004. Pursuant to her Individualized Family Service Plan ("IFSP"), while in EI, A.M. received 30 hours per week of 1:1 Applied Behavior Analysis ("ABA") therapy, ABA supervision, parent training, 2 hours per week of 1:1 occupational therapy, 5 hours per week of 1:1 speech and language therapy, and 2 hours per week of physical therapy, and one hour per month was set aside for a "team meeting" with all of the Student's therapists.
On April 5, 2005, A.M.'s mother consented to notifying the DOE's Committee on Pre-School Education ("CPSE") that the Student might be eligible to receive special education services from the DOE. On May 13, 2005, the Student's mother consented to an initial evaluation to determine the Student's eligibility. She designated the Herbert G. Birch Early Childhood Center ("Herbert Birch") to conduct an evaluation of the Student prior to the development of the Student's IEP.
Evaluations of the Student were performed and sent to the CPSE for its consideration. A CPSE review was held on July 12, 2005, and August 1, 2005.
At the July 12 meeting, the Student's mother provided the CPSE with copies of the Student's most current evaluations and progress reports containing a series of intervention recommendations for the Student. At the beginning of the meeting, Helen Berman ("Berman"), the DOE representative, handed the Student's mother a written IEP. Tr. at 85.[1] At the meeting, the Student's mother requested a 12-month program with 20-30 hours of ABA programming per week, speech and language therapy every day, and 10 hours per week of ABA therapy at home. Tr. at 85. Two educators who had worked with the Student recommended that the Student receive "a 12 month program of 20 to 30 hours of ABA" per week, plus occupational therapy three or four times a week, physical therapy once a week, and ten hours of ABA at home, one to one. Tr. at 87. The DOE recommended four possible placements for the Student, including P.S. 176. Def.'s 56.1 ¶ 10; Tr. at 85.
At the second meeting, on August 1, 2005, the District recommended placement at P.S. 176, where the Student would be placed in an class with 8 students, 1 teacher, and 2 paraprofessionals (an "8:1:2" class) for five hours a day, five days a week, 12 months a year, with the addition of a 1:1 management paraprofessional. The recommended placement included speech and language therapy, occupational therapy, and physical therapy three times a week for 30 minutes each, provided on an individual basis. Def.'s 56.1 at ¶ 14; Def.'s Ex. 24.
By letter dated August 10, 2005, the Student's mother rejected the P.S. 176 placement recommended by the CPSE and informed the DOE that she would be enrolling the Student at the McCarton School, a private placement. Pis.' Ex. B. As a result of the Student's enrollment at the McCarton School, the Student's EI services were discontinued. The McCarton School has not been approved by the Commissioner of Education as a school with which school districts may contract to instruct students with disabilities. SRO Dec. at 1.
By due process complaint dated September 8, 2005, Plaintiffs requested an impartial hearing and alleged procedural and substantive violations of the IDEA, including, inter alia, that the CPSE was improperly constituted and that the goals and objectives contained in the IEP were inappropriate and not objectively measurable, resulting in the denial of a free appropriate public education ("FAPE") to the Student. Pis.' Ex. A.
An impartial hearing was convened on April 7 and April 20, 2006. By decision dated August 3, 2006, the IHO concluded that the services offered by Defendant were appropriate and that any alleged procedural defects related to the CPSE review and/or the generation of the Student's IEP were without merit.
The IHO found that the CPSE was duly constituted, noting that the psychologist who had evaluated the Student was present at the CPSE meeting, and the presence of a regular education teacher was not required. IHO Dec. at 8. The IHO further found that the Student's IEP incorporated evaluations of the Student conducted by professionals of the Plaintiffs' choosing and the goals recommended by those evaluations, as well as requests from the Plaintiffs, including the addition of a one to one paraprofessional. Id. at 9.
With regard to the substantive adequacy of the IEP, the IHO stated that "[w]hether or not the objectives and goals set forth in the CPSE IEP are attainable is something that can be judged only with the benefit of hindsight," and concluded that "[a]lthough one might argue that the smaller class size [of the Student's private placement] is preferable, I cannot conclude from the evidence presented that the 8:1:2 class would be detrimental to the child." IHO Dec. at 9. The IHO found that the Defendant offered the Student a FAPE and, therefore, there was no need to address the questions of the appropriateness of the Plaintiffs' private placement or any of the equitable considerations raised by Plaintiffs. The IHO also considered the Plaintiffs' request for the continued provision of EI services pursuant to the Student's IFSP during the pendency of the due process hearings, found that such pendency placement was not appropriate, and denied the Plaintiffs' request for tuition reimbursement.
The Plaintiffs appealed to the SRO and sought reversal of the IHO's August 3, 2006, decision. By decision dated November 20, 2006, the SRO dismissed the Plaintiffs' appeal. The SRO found that the program offered by the DOE to the Student for the 2005-2006 school year was appropriate, that any alleged procedural errors were not supported by the record or did not rise to the level of a denial of a FAPE, and that the Student's IEP was reasonably calculated to provide meaningful educational benefit. Because the SRO determined the Student was not denied a FAPE, he did not address the appropriateness of the Plaintiffs' private placement or the equitable considerations. The SRO also found that the Student was not entitled to EI services as a pendency placement. Id. at 18.
The Plaintiffs filed this action on March 16, 2007, pursuant to the IDEA, 20 U.S.C. § 1415(i)(2)(A), in order to seek a modified de novo review and reversal of the August 3, 2006, IHO Decision and the November 20, 2006, SRO decision, and the determination that the program and services that the Student received in her private placement were appropriate and reimbursable.
On October 5, 2007, the Plaintiffs moved for a modified de novo appeal and for reimbursement and the DOE cross-moved for summary judgment. The motions were heard and marked fully submitted on October 31, 2007.
The Court notes that, in support of their motion, Plaintiffs have submitted an article identified as published in the Wall Street Journal entitled "Schools Beat Back Demands for Special-Ed Services." Aff. of Christina D. Thivierge, Ex. A. The article disparages the SRO and implies bias. As this submission constitutes inadmissible hearsay, the Court has not taken it into consideration in reaching its decision.
Statutory Framework
The IDEA provides that states which receive funding under the statute must provide each student with a disability with a "free appropriate public education," 20 U.S.C. § 1400(d)(1)(A), comprised of special education and related services, provided at public expense, which meet the standards of the State educational agency. 20 U.S.C. § 1401(9). A FAPE must be "tailored to meet the unique needs of a particular child" and must be "`reasonably calculated to enable the child to receive educational benefits.'" Walczak v. Florida Union Free Sch. Dist., 142 F.3d 119, 122 (2d Cir.1998) (quoting Bd. Of Educ. v. Rowley, 458 U.S. 176, 207, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)).
Special education and related services must be administered according to an IEP, "which school districts must implement each year for each student with a disability." D.F. v. Ramapo Cent. Sch. Dist., 430 F.3d 595, 598 (2d Cir.2005) (quoting Grim v. Rhinebeck Cent. Sch. Dist., 346 F.3d 377, 379 (2d Cir.2003)). In New York State, local Committees on Special Education ("CSE") appointed by school boards or the trustees of school districts are charged with developing IEPs. Walczak, 142 F.3d at 123. "In developing a particular child's IEP, a CSE is required to consider four factors: (1) academic achievement and learning characteristics, (2) social development, (3) physical development, and (4) managerial or behavioral needs." Gagliardo v. Arlington Cent. Sch. Dist., 489 F.3d 105, 107-108 (2d Cir. 2007) (citing N.Y. Comp.Codes R. & Regs. ("N.Y.C.C.R.R") tit. 8, § 200.1(ww)(3)(i)). The IEP must set forth the goals and objectives for the student, and the recommended educational program and related services to attain those goals and objectives. 20 U.S.C. § 1414(d). Both federal and state special education laws require that a child with a disability be educated in the least restrictive environment ("LRE"), that is, with nondisabled peers to the extent feasible and appropriate. 20 U.S.C. § 1412(a)(5); N.Y. Educ. Law § 4402.
Parents who believe that an IEP is inappropriate for their child may "request an administrative review, enroll their child unilaterally in a private school and request retroactive reimbursement." Collins v. Bd. of Educ., 164 Fed.Appx. 19, 20 (2d Cir.2006). "However, if parents `unilaterally change their child's placement during the pendency of review proceedings, without the consent of state or local officials, [they] do so at their own financial risk.'" Id. (quoting Sch. Comm. of Burlington v. Dep't of Educ., 471 U.S. 359, 373-74, 105 S. Ct. 1996, 85 L. Ed. 2d 385 (1985)).
The administrative decision of an Impartial Hearing Officer may be appealed to the State Review Officer, whose decision is final in the administrative review process. 20 U.S.C. § 1415(f)(1)(A), (g) (1); N.Y. Educ. Law §§ 4404(1), (3). After the completion of this administrative review process, the aggrieved party may appeal the decision of the SRO in state or federal court. 20 U.S.C. § 1415(i)(2)(A).
Standard of Review
Federal courts reviewing administrative determinations under the IDEA must base their decisions on the preponderance of the evidence developed at the administrative proceedings and any additional evidence presented by the parties. M.S. v. Yonkers Bd. of Educ., 231 F.3d 96, 102 (2d Cir.2000) (citing Walczak, 142 F.3d at 122-23); 20 U.S.C. § 1415(i)(2)(C). The burden of proof in an administrative proceeding challenging an IEP is placed on the party seeking relief. Schaffer v. Weast, 546 U.S. 49, 57-58, 126 S. Ct. 528, 163 L. Ed. 2d 387 (2005).
In determining if parents who challenge an educational program are entitled to reimbursement, a court must first determine if the program offered by the school district is inadequate to afford the child a FAPE. Cabouli v. Chappaqua Cent. Sch. Dist., 202 Fed.Appx. 519, 521 (2d Cir.2006) (citing Walczak, 142 F.3d at 129). Only if the program offered by the school district is inadequate must a federal court then determine if the private schooling obtained by the parents is appropriate to the student's needs. Id.
In determining whether the program offered by the school district in the challenged IEP constitutes a FAPE, a court considers: "(1) whether the state complied with the procedural requirements of IDEA, and (2) whether the challenged IEP was `reasonably calculated to enable the child to receive educational benefits.'" Walczak, 142 F.3d at 129 (quoting Bd. of Educ. v. Rowley, 458 U.S. 176, 206-07, 102 S. Ct. 3034, 73 L. Ed. 2d 690 (1982)).
While the decisions of the IHO and SRO are subject to "independent" judicial review, the United States Supreme Court and the Second Circuit "have interpreted the IDEA as strictly limiting judicial review of state administrative proceedings." D.F., 430 F.3d at 598 (citations omitted). A district court review "`is by no means an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities they review.'" Walczak, 42 F.3d at 129 (quoting Rowley, 458 U.S. at 206, 102 S. Ct. 3034). Therefore, "[w]hile federal courts do not simply rubber stamp administrative decisions, they are expected to give `due weight' to these proceedings, mindful that the judiciary generally `lacks the specialized knowledge and experience necessary to resolve persistent and difficult questions of educational policy.'" Id. (quoting Rowley, 458 U.S. at 206, 208, 102 S. Ct. 3034) (internal quotation marks and citations omitted). "Deference is particularly appropriate when ... the state hearing officers' review has been thorough and careful." Id.
The Defendant Offered the Student a Free Appropriate Public Education
The IHO and SRO concluded that the IEP offered to the Student by DOE complied with the procedural requirements of IDEA and was substantively proper. The Plaintiffs have failed to establish that those conclusions were reached in error.
i. Procedural Requirements
At the administrative level, the SRO thoroughly evaluated Plaintiffs' claims of procedural violations of the IDEA and found that any such alleged violations "were not supported by the record, or did not rise to the level of a denial of FAPE." SRO Dec. at 17. Not all procedural errors render an IEP inadequate under the IDEA. Watson v. Kingston City Sch. Dist., 325 F. Supp. 2d 141, 145 (N.D.N.Y.2004) (citing Grim, 346 F.3d at 381), aff'd, 142 Fed.Appx. 9, 11 (2d Cir. 2005). Relief is warranted only when a procedural violation affects a student's right to a FAPE. See J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d 60, 69 (2d Cir.2000) (citations omitted).
The IDEA provides that a student does not "receive a free appropriate public education only if the procedural inadequacies: (I) impeded the child's right to a [FAPE]; (II) significantly impeded the parents' opportunity to participate in the decisionmaking process regarding the provision of a [FAPE] to the parents' child; or (III) caused a deprivation of educational benefits." 20 U.S.C. 1415(f)(3)(E)(ii); see also Werner v. Clarkstown Cent. Sch. Dist., 363 F. Supp. 2d 656, 659 (S.D.N.Y.2005) ("[P]rocedural flaws do not automatically require a finding of a denial of a FAPE. But procedural inadequacies that individually or cumulatively result in the loss or educational opportunity or seriously infringe on a parent's participation in the creation or formulation of the IEP constitute a denial of FAPE.") (citation omitted). As found by the IHO and SRO, the Plaintiffs have failed to establish that any alleged procedural violations here resulted in the denial of a FAPE.
(a) Composition of the CPSE
The Plaintiffs assert that the CPSE was improperly constituted, as it did not include all members required by the New York Regulations of the Commissioner of Education, which provide that each CPSE shall include: 1) the parents of the preschool child; 2) a regular education teacher "whenever the child is or may be participating in the regular education environment"; 3) a special education teacher; 4) a representative of the school district; 5) an additional parent of a child with a disability residing in the school district; 6) an individual who can interpret the instructional implications of evaluation results; 7) other persons having knowledge or special expertise regarding the child, including related services personnel as appropriate, as the school district or the parents shall designate; 8) for a child in transition from early intervention programs and services, at the request of the parent, the appropriate professional designated by the agency that has been charged with the responsibility for the preschool child; and 9) a representative of the municipality of the preschool child's residence. N.Y.C.R.R. tit. 8, § 200.3(a)(2).
The Plaintiffs allege that at the August 1, 2005, IEP meeting, there was no general education teacher, no education evaluator, no school psychologist, no school social worker, no special education teacher, no related services provider, and no representative of P.S. 176, rendering the CPSE improperly constituted. However, as the SRO and IHO concluded, Plaintiffs have failed to establish that the CPSE was improperly composed or that the meeting's composition affected the Student's ability to receive a FAPE. SRO Dec. at 11-12; IHO Dec. at 8.
As reflected on the IEP, Pis.' Ex. E at 2, the CPSE meeting participants included the Student's mother, the district representative, a special education teacher, an additional parent member, and the Student's EI services coordinator from the Children's Home Intervention Program ("CHIP"). The testimony establishes that a psychologist who had evaluated the Student was also present at the first CPSE meeting, Tr. at 99-100, and Plaintiffs have failed to set forth any detrimental effect on the Student caused by the psychologist's absence from the second CPSE meeting.
While the IDEA requires the presence of a general education teacher at the CSE meeting where "a child is, or may be, participating in the regular education environment," 20 U.S.C. § 1414(d)(1)(B)(ii), a regular education teacher was not required at the Student's IEP meeting because the Student was not participating in or being considered for participation in a regular education environment. See, e.g., Tarlowe v. Bd. of Educ., No. 07 Civ. 7936(GEL), 2008 U.S. Dist. LEXIS 52704, at *15, 2008 WL 2736027, **3-4 (S.D.N.Y. July 3, 2008). Moreover, Plaintiffs have not established either that they requested regular education participation or that, based on the Student's history, she should have been considered for such an environment.
Finally, as the SRO noted, there is no requirement that a school social worker or representative from the district's placement be present at the CPSE meeting, therefore, their absence does not constitute a procedural violation. SRO Dec. at 12.
(b) Predetermination
Plaintiffs' further assert that they were denied meaningful involvement in development of Student's IEP because it was impermissibly predetermined by the DOE. In support of this assertion, Plaintiffs point to the fact that the district representative, Berman, presented the Student's mother with a written IEP at the first CPSE meeting, and, according to the Student's mother, Berman refused to consider her suggested changes. Tr. at 85; Compl. ¶¶ 15, 18.
So long as they do not deprive parents of the opportunity to meaningfully participate in the IEP development process, see Deal v. Hamilton County Bd. of Educ., 392 F.3d 840, 858 (6th Cir.2004) ("Participation must be more than a mere form; it must be meaningful.") (internal quotation marks and citation omitted, emphasis in original), draft IEPs are not impermissible under the IDEA. See, e.g., Nack ex rel. Nack v. Orange City Sch. Dist., 454 F.3d 604, 611 (6th Cir.2006) ("`[S]chool evaluators may prepare reports and come with pre formed opinions regarding the best course of action for the child as long as they are willing to listen to the parents and parents have the opportunity to make objections and suggestions.'") (quoting N.L. v. Knox Cty. Schs., 315 F.3d 688, 694 (6th Cir.2003)); W.S. v. Rye City Sch. Dist., 454 F. Supp. 2d 134, 147-48 (S.D.N.Y. 2006) (stating that equating draft IEPs containing proposed placements with predetermination "will inevitably lead to gamesmanship in the preparation of IEPs by CSEs, with the district withholding points of view that ought to be out on the table and subject to discussion and parental challenge ... prior to the document's finalization."); cf. Brennan v. Reg'l Sch. Dist. No. 1 Bd. of Educ, 531 F. Supp. 2d 245, 274 (D.Conn.2007) (finding that a draft IEP did not violate the IDEA, although it was not altered following the CSE's receipt of additional evaluation reports, where "the district came to the [planning] meeting with a draft IEP, it looked at the new evaluation data, and it concluded that its draft IEP was appropriate."). But see T.P. v. Mamaroneck Union Free Sch. Dist., No. 06 Civ. 0509(CLB), 2007 U.S. Dist. LEXIS 35288, at *18-19, 2006 WL 1132324, *7 (S.D.N.Y. May 11, 2007) (finding that school district had not come to CSE with an "open mind" and had impermissibly predetermined student's IEP where, inter alia, recommendations prepared before IEP meeting were the same as those ultimately provided, despite the Parents' disapproval).
Here, the Student's IEP and placement were not finalized until after both of the Student's IEP meetings, the Student's mother participated at the IEP meetings, she visited the Defendant's proposed placements, and she contributed to the Student's final IEP. Tr. at 85, 106-107; SRO Dec. at 16. After the initial IEP meeting on July 12, 2005, the DOE responded to the Student's mother's request by amending the Student's IEP to include a one to one paraprofessional for the Student. Tr. at 106; Pis.' Ex. E at 1; SRO Dec. at 16. Additionally, as the SRO described in detail, the IEP incorporated evaluations of the Student conducted by professionals of the Plaintiffs' choosing and the goals those professionals recommended. SRO Dec. at 13-14; IHO Dec. at 9.
(c) Written Notice of Reasons
Finally, the Plaintiffs assert that the DOE's failure to provide them with written notice of its reasons for rejecting their requests for additional services constituted a procedural violation of the IDEA. While the DOE does not contest its failure to provide such written notice, the Court agrees with the conclusion of the SRO that the Plaintiffs have failed to establish that this failure "significantly impeded" their ability to participate in the decision-making process or caused a deprivation of educational benefits to the Student. SRO Dec. at 12.
ii. Substantive Requirements
The Plaintiffs have alleged that "the program and services recommended for A.M. for 2005-2006 were insufficient to meet her individual needs" and, therefore, do not constitute a FAPE. Compl. ¶ 17. The Plaintiffs assert that the IEP fails to accurately report the Student's present levels of performance and does not contain appropriate and measurable goals and objectives. The Plaintiffs also assert that the District erroneously failed to consider offering the Student assistive technology, failed to provide a Functional Behavior Analysis ("FBA") or Behavior Intervention Plan ("BIP"), and improperly refused to include parent training in the IEP.
As noted above, a student shall be determined to have received a FAPE if the student's IEP was reasonably calculated to confer educational benefit on the student. Walczak, 142 F.3d at 129. "While the IDEA does not require states to maximize the potential of handicapped children, it must provide such children with meaningful access to education." Frank G. and Dianne G. v. Bd. of Educ., 459 F.3d 356, 364 (2d Cir.2006) (internal quotation marks and citations omitted). Therefore, in evaluating an IEP, a federal court must examine the record for any "objective evidence" that the student's IEP will afford more than "trivial advancement" and is "likely to produce progress, not regression." Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 195 (2d Cir.2005) (quoting Walczak, 142 F.3d at 130).
However, "[b]ecause administrative agencies have special expertise in making judgments concerning student progress, deference is particularly important when assessing an IEP's substantive adequacy." Cerra, 427 F.3d at 195 (citation omitted). The Second Circuit has stated that it has "not hesitated to vacate district court opinions where the district court `erred in substituting its judgment for that of the agency experts and the hearing officer.'" Id. (quoting Briggs v. Bd. of Educ., 882 F.2d 688, 693 (2d Cir.1989)). Here, based upon the same record presently before the Court, the SRO and IHO determined that the Student's IEP was substantively proper, and the Plaintiffs have not met their burden of demonstrating that that conclusion is erroneous.
(a) Performance Levels and Goals and Objectives
The IDEA requires that the IEP contain, inter alia, a statement of the child's present levels of academic achievement and functional performance, a statement of measurable annual goals, including academic and functional goals, and a description of how the child's progress toward those goals will be measured. 20 U.S.C. § 1414(d)(1)(A)(i). Plaintiffs contend that the IEP inaccurately reflected the Student's then-present levels of performance and that the DOE failed to develop appropriate and measurable goals and objectives, as the Student lacked the prerequisite skills to attain most of the proposed goals and the goals were too vague to be measurable.
In support of their claim, the Plaintiffs point to the testimony of Jacqueline Hickey, Associate Education Director of the McCarton School, who worked directly with the Student. Hickey testified that at the time the IEP was developed, the Student did not have the prerequisite skills needed to attain a number of the goals contained therein, including the ability to imitate simple gross motor movements required for learning to imitate full body movements, the matching skills required to learn object and picture sorting, and the motor planning abilities required for learning to dress independently. Tr. at 227-32. However, the SRO specifically referenced this testimony in his decision and concluded that it was unsupported by the record, in light of the evaluations of the Student provided by the Plaintiffs to the CPSE. SRO Dec. at 14-15. Those evaluations included "the initial evaluation completed by Herbert Birch that included a social history, psychological, speech-language, occupational therapy, and physical therapy evaluations," an April 2005 speech-language progress report completed by the Student's private therapist, evaluation reports from the McCarton Center dated April and May 2005, a June 2005 progress report completed by the Student's EI physical therapist, and a July 2005 progress from the Student's EI special educator. SRO Dec. at 13; Pis.' Exs. H, J-L, N-P, R-U; Def.'s Ex. 7.
As the SRO found, the evaluations contain numerous conclusions which contradict the testimony relied on by the Plaintiffs. For example, a January 2005 report from the Student's EI provider reported that the Student was able to imitate several gross motor tasks, and had "matched more than 10 different objects and inserted 12 shapes in a shape sorter." SRO Dec. at 14; Pis.' Ex. Z at 2, 7. In an April 2005 evaluation report, Mary Lowery, the Educational ABA Supervisor at the McCarton School, stated that, while the Student's "imitation abilities were variable, depending on her attention and motivation," she "did imitate many gross motor skills and some fin[e] motor skills." Pis.' Ex. T at 1. Lowery also stated in that report that, while the Student's "ability to perform on visual tasks was variable," she was able "to match identical objects to a sample and picture-to-picture in a field of six," "to match picture-to-object and object-to-picture independently in a field of three," and "to sort two simple and familiar non-identical items into categories." Id.
The SRO concluded that the Student's IEP reflected the evaluations submitted to the CPSE and accurately reported her present levels of performance. SRO Dec. at 13. Based upon the evaluations, as well as the testimony of the Assistant Principal of P.S. 176, Elena Talamo, regarding the proposed placement, the SRO further concluded that the IEP properly included measurable annual goals, which provided "a framework for further refinement by the classroom personnel responsible for overseeing the child's program," including short term objectives written with "requisite specificity to enable the child's teachers and petitioners to understand the CPSE's expectations with respect to each annual goal and what the child would be working on over the course of the school year." Id. at 15.
Giving due weight to the administrative determination of the SRO, the Court finds that the SRO's conclusions are supported by the record and that Plaintiffs have not met their burden of establishing by a preponderance of the evidence that they are erroneous. See Tarlowe, 2008 U.S. Dist. LEXIS 52704, at * 28, 2008 WL 2736027, at *9 ("The sufficiency of goals and strategies in an IEP is precisely the type of issue upon which the IDEA requires deference to the expertise of the administrative officers.") (quoting Grim, 346 F.3d at 382).
(b) Assistive Technology
The SRO found that the Plaintiffs' assertion that the Defendant failed to consider offering the Student any assistive technology was without merit. In so concluding, the SRO cited the testimony of the Assistant Principal of P.S. 176 that the proposed placement for the Student was a language-based classroom with ABA programming and that each of the students at P.S. 176 utilizes "picture exchange communication system" ("PECS") books for communication. SRO Dec. at 17; Tr. at 33. The Plaintiffs specifically cite PECS as an assistive technology that that the Student utilized in EI and that the CPSE should have considered. See Pis.' Mem. in Supp. at 20. The Court affirms the conclusion of the SRO, as it is supported by the record and the Plaintiffs have not cited to any evidence establishing that it was reached in error.
(c) Parent Training
Pursuant to N.Y.C.R.R. tit. 8, § 200.13(d), "[p]rovision shall be made for parent counseling and training ... for the purpose of enabling parents to perform appropriate follow-up intervention activities at home." Although the Student's IEP did not contain a parent training provision, the SRO concluded that record did not reflect that the district was unwilling to provide such services, because, as the Student's mother testified, it was agreed at the CPSE meeting that home services could be requested at a later date. SRO Dec. at 16; Tr. at 106-107. Moreover, the SRO found that "petitioners have received extensive parent training in the past and have been actively involved in their child's education, communicating regularly with her teachers and service providers." Id. As the SRO's conclusion is supported by the record and the Plaintiffs have not offered any additional evidence to the contrary, the Court affirms the SRO's determination. Cf. T.P. v. Mamaroneck Union Free Sch. Dist., 2007 U.S. Dist. LEXIS 35288, at *23-24, 2006 WL 1132324, at *8 (declining to "reverse the SRO's conclusion that the District's refusal to provide parental training at home was justified for the reason that the parents were already very knowledgeable about their son's circumstances," and therefore did not constitute a procedural violation of the IDEA, as the court could not determine that the refusal to provide training caused the child "substantial harm," but noting that the court found that rationale "dubious in a case involving the changing and evolving needs of an autistic child.").
(d) Functional Behavior Analysis
Under the IDEA, "in the case of a child whose behavior impedes the child's learning or that of others," the IEP team shall "consider the use of positive behavioral interventions and supports." 20 U.S.C. § 1414(d)(3)(B)(i). Here, the boxes on the IEP form stating that the Student's behavior does not seriously interfere with instruction and can be addressed by the special education teacher were checked, and a note was written indicating that "classroom staff" would be responsible for providing behavioral support. Pls.' Ex. E at 4.
The SRO found that there was "no basis" for the Plaintiffs' contention that the DOE's failure to provide the Student with an FBA and BIP was improper, as the record did not indicate that "with refocusing and redirection, the [Student's] stereotypical behaviors interfere in any way with the performance of either the child herself or other children." SRO Dec. at 17. The SRO further found that an FBA would have been premature, as "an integral aspect of conducting an FBA is determining how a child's behavior relates to the environment in which it occurs," and the Student had not attended the recommended placement. Id.
As the Court is required to defer to the SRO's determinations regarding the substantive adequacy of the IEP, the SRO's conclusion is supported by the record, and the Plaintiffs have not offered any additional evidence regarding the Student's behavioral record or the necessity of an FBA beyond that which was before the SRO, the Court declines to find that the failure to provide an FBA or BIP here constituted a denial of a FAPE.
Moreover, in light of Court's independent review of the record and the conclusions set forth above, the Court concludes that the IHO and SRO's determination that the placement offered by the DOE was reasonably calculated to enable the Student to receive educational benefits is entitled to deference.
Because the Court concludes that the DOE offered the Student a FAPE, it is not necessary for the Court to make findings regarding the appropriateness of Plaintiffs' unilateral placement or the equities surrounding the case. See Cerra v. Pawling Cent. Sch. Dist., 427 F.3d 186, 192 (2d Cir.2005); W.S., 454 F.Supp.2d at 150.
The Student Is Not Entitled to Reimbursement for Pendency Placement
The IDEA'S pendency, or "stay-put", provision reads:
[D]uring the pendency of any proceedings conducted pursuant to this section, unless the State or local educational agency and the parents otherwise agree, the child shall remain in the then-current educational placement of the child, or, if applying for initial admission to a public school, shall, with the consent of the parents, be placed in the public school program until all such proceedings have been completed.
20 U.S.C. § 1415(j). Pendency rights are recognized by both federal and state authority. See N.Y. Educ. Law § 4404(4); N.Y.C.C.R.R. tit. 8, § 200.5(m)(1).
Plaintiffs contend that the IDEA's pendency provision requires that the DOE provide the Student with the educational services she was receiving pursuant to her IFSP until the resolution of the proceedings regarding her IEP. According to the Defendant, pendency rights to continue receiving services provided pursuant to an IFSP do not apply upon a Student's initial admission to public school and, moreover, the relief now sought is greater than the services provided to the Student in EI.
The question of whether the IDEA entitles a child to pendency placement at the level of services provided under the child's IFSP during the resolution of a dispute arising in the transition from early intervention provided under "Part C" of the IDEA, which governs services provided to children from birth to age three, to preschool education services, which are provided under "Part B" of the statute, has been considered by the Court of Appeals in two circuits, the Third and Eleventh, but not in this circuit. For the reasons set forth below, the Court finds that the IDEA pendency provision does not apply to the Student in the instant case.
In Pardini v. Allegheny Intermediate Unit, 420 F.3d 181 (3d Cir.2005), the Third Circuit held that a child transitioning from IFSP services provided under Part C of the IDEA to those provided according to an IEP under Part B was entitled to continue receiving the IFSP services during the pendency of due process proceedings regarding the adequacy of an IEP. Stating that "`the [stay-put] provision represents Congress' policy choice that all handicapped children, regardless of whether their case is meritorious or not, are to remain in their current educational placement until the dispute with regard to their placement is ultimately resolved,'" id. at 190 (quoting Drinker v. Colonial Sch. Dist., 78 F.3d 859, 865 (3d Cir.1996)), the Third Circuit concluded that the "operative placement actually functioning at the time the dispute first arises" constitutes the "then-current educational placement" for the purposes of the pendency provision. Id. at 192 (citing Thomas v. Cincinnati Bd. of Educ., 918 F.2d 618 at 625-26 (6th Cir.1990)).
In reaching that conclusion, the Pardini court relied upon its reading of the IDEA'S pendency provision "in context with the rest of the IDEA statute." Id. at 191. The court noted that the stay-put provision dated to 1975, prior to the addition of Part C to the IDEA in 1986, at which time "Congress stressed that the transition from Part C to Part B upon a child's third birthday was to he `a smooth transition.'" Id. at 186 (quoting 20 U.S.C. § 1412(a)(9)) (emphasis in original). The court stated that "Congress has clearly recognized that the needs of disabled children do not fit neatly into ... age defined stages," and added that an IDEA provision allowing for either an IEP or IFSP to be employed if "consistent with State policy" and "agreed to by the agency and the child's parents" indicated that "the IDEA both anticipates and condones the possible interchangeability of an IFSP and IEP during transition to preschool." Id. at 191 (internal quotation marks and citations omitted).
The court noted that an interpretive letter issued by the Office of Special Education Programs of the U.S. Department of Education ("OSEP") stated that the agency did not interpret the IDEA as requiring the provision of pendency services at the early intervention level during the resolution of a dispute about a child's placement under Part B. However, the court, having noted that "[t]he level of deference to be accorded to such interpretive rules depends upon their persuasiveness," id. at 192 (citing Michael C. ex rel. Stephen C. v. Radnor Twp. Sch. Dist., 202 F.3d 642, 649 (3d Cir.2000)), declined to defer to the agency's interpretation, stating that "the OSEP never explained how it reached that conclusion," and it was contrary to the "plain meaning" of "current educational placement." Id. (citation omitted).
Subsequent to Pardini, the Eleventh Circuit, in D.P. ex rel. E.P. v. Sch. Bd., 483 F.3d 725, 729-730 (11th Cir.2007), reached a contrary conclusion, stating, "We think [Pardini] was incorrectly decided." Id. at 730. There, as here, plaintiffs (three autistic children) had never been admitted to a public school, but had been receiving EI services. Id. at 727-730. Upon their "aging out" of the EI program on their third birthday, the plaintiffs sought to continue receiving EI services during the pendency of the due process proceedings. Id. The Eleventh Circuit affirmed the district court's determination that "the IDEA does not entitle the [plaintiffs] to continue receiving services pursuant to their IFSPs until such time as valid IEPs are put into place for them." Id. at 730.
The Eleventh Circuit concluded that the holding in Pardini was contrary to the "unambiguous language" of the stay-put provision, which it read as providing for two "mutually exclusive" alternatives: 1) "If the child is not applying for initial admission [to public school], he shall remain in his existing educational placement" during the pendency of due process proceedings, or 2) "If the child is applying for initial admission, he shall be placed in the public school program" with the consent of the parents until the conclusion of the proceedings. Id. at 729. Accordingly, the court found that "[t]he district court properly held that the fact that the parents withheld consent to placement in the program offered by the public school (pursuant to the temporary IEPs) does not create another option" for them. Id. at 730.
Although it relied on the plain language of the statute, and therefore did not engage in an analysis of the reasonableness of the relevant agency regulations pursuant to Chevron U.S.A, Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), the Eleventh Circuit noted that its interpretation of the pendency provision was consistent with the relevant federal implementing regulation in effect in 2004 when the due process complaint in the case was filed. P.P., 483 F.3d at 731. That regulation, 34 C.F.R. § 300.514(b), read: "If the [due process] complaint involves an application for initial admission to public school, the child, with the consent of the parents, must be placed in the public school until the completion of all the proceedings." The court further noted that the regulation was amended in 2006, after Pardini was decided, to specifically provide that "[i]f the complaint involves an application for initial services under this part from a child who is transitioning from Part C of the Act to Part B and is no longer eligible for Part C services because the child has turned three, the public agency is not required to provide the Part C services that the child had been receiving." 34 C.F.R. § 300.518(c).
The Eleventh Circuit added that its interpretation was also consistent with guidance issued by OSEP. D.P., 483 F.3d at 730-31. Published with the implementing regulations, that agency guidance stated that while "[a] few commenters requested that the regulation be revised to make clear that the pendency provisions of § 300.514 apply to children transitioning from early intervention services under Part C to preschool special education and related services under Part B," the agency's position was that the pendency provision does not, in fact, apply in such circumstances. Id. (citing 64 Fed.Reg. 12,406, 12,558 (Mar. 12, 1999)). The agency guidance published in 2006 in connection with the amended regulation states that § 300.518(c) was added "to clarify that if a complaint involves an application for initial services under Part B of the Act from a child who has turned three and is no longer eligible under Part C of the Act, the public agency is not required to continue providing the early intervention services on the child's IFSP." 71 Fed.Reg. 46,540, 46,709 (Aug. 14, 2006). In doing so, the agency noted that services provided under Part C of the IDEA were distinctly different from those provided under Part B of the IDEA and that a child transitioning between Parts does not have a "current educational placement" for the purposes of the pendency provision. Id.
In the instant case, the Court will follow the analysis of the Eleventh Circuit. Accordingly, the Court concludes that as the Student is over three years old, is transitioning from services provided under Part C of the IDEA to those provided under Part B, and is, therefore, applying for initial admission to public school, the IDEA does not require that she continue to receive services at the level provided during early intervention pursuant to her IFSP during the pendency of due process proceedings. Therefore, the Plaintiffs are not entitled to receive reimbursement for any such services which they provided through a private placement during the 2005-2006 school year.
The Court notes that while a child is generally not eligible for Part C early intervention services beyond her third birthday, 20 U.S.C. § 1432(5)(A), under New York law, because the Student turned three after the first day of September, the Student could have received EI services until "the second day of January of the following calendar year." N.Y. Pub. Health Law § 2541(8)(a). However, after the CPSE found the Student eligible for special education services, the Plaintiffs' unilaterally discontinued the Student's EI services by enrolling her at the McCarton Center.
Conclusion
For the reasons set forth above, the motion of the Plaintiffs for a reversal of the IHO and SRO decisions is denied and the motion of the DOE for summary judgment is granted.
Submit judgment on notice.
It is so ordered.
NOTES
[1] Transcript references refer to the IHO Hearing on April 7, 2006, and April 20, 2006. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598151/ | 287 So. 2d 647 (1973)
Dottie W. SNOW, Plaintiff-Appellant,
v.
CITY OF SHREVEPORT et al., Defendants-Appellees.
No. 12164.
Court of Appeal of Louisiana, Second Circuit.
November 13, 1973.
Rehearing Denied January 9, 1974.
Writ Refused March 1, 1974.
*648 Wilkinson, Carmody & Peatross by Samuel W. Caverlee, Shreveport, for plaintiffappellant.
John Gallagher, Roland J. Achee, Ray A. Barlow by Ray A. Barlow, Shreveport, for defendants-appellees.
Before AYRES, BOLIN and PRICE, JJ.
En Banc. Rehearing Denied January 9, 1974.
BOLIN, Judge.
Plaintiff, a 74-year-old widow, sued the City of Shreveport and the Caddo Parish School Board for damages for injuries she received when she fell on a sidewalk paralleling and adjoining property of the School Board. The School Board filed an exception of no cause of action which was sustained; this judgment having become final the liability of the Board is not an issue on appeal. For written reasons the trial judge found plaintiff guilty of contributory negligence in failing to observe the defect in the sidewalk which caused her to fall. From judgment dismissing plaintiff's demands, she appeals. For reasons hereinafter expressed we reverse this ruling and render judgment in favor of plaintiff.
The accident occurred November 23, 1971, on a sidewalk adjoining Missouri Street in the City of Shreveport. Although plaintiff lived in that neighborhood she testified she seldom walked along the sidewalk in question. However, having been notified she had won a turkey at a nearby A & P grocery store, plaintiff, accompanied by her 16-year-old grandson, Jerry Mace, started walking toward the grocery store. She said she knew the sidewalks in that general area were in bad condition but had not paid any particular attention to the one on which she was walking. As she reached a point near a large sycamore tree she stumbled and fell, *649 causing the personal injuries made the basis of this suit.
The witnesses described the weather as being "drizzling and damp". Examination of the sidewalk showed it had cracked, causing a triangular-shaped piece of the concrete surface to sink, resulting in a rise beyond the cracked portion of over two inches. This defective condition was covered by mud and also by leaves from the sycamore tree.
After Mrs. Snow fell she sat down on the sidewalk and leaned back against the tree while her grandson went for help. Jerry located his older brother who came to the scene and summoned an ambulance which transported plaintiff to the Confederate Memorial hospital in Shreveport, where she was examined and X-rayed. The X-rays revealed her left kneecap was badly fractured, necessitating surgical removal of the patella. She remained in a cast for some time. The only medical evidence as to her condition was a letter from Dr. Thomas A. Norris, orthopedic surgeon of Shreveport, who examined plaintiff and said she had reached maximum recovery with a residual permanent disability of 35 to 40% of the leg as a whole.
The evidence is uncontradicted that the sidewalk upon which plaintiff was walking at the time she fell was constructed in the "early twenties". A tree expert testified the cracking in the sidewalk was due to the roots from the sycamore tree and that the condition as it existed at the time of the accident had probably been the same for approximately seven years preceding the date of the accident.
The Shreveport city engineer, an employee of the City for 21 years, testified the municipality had no system of inspecting the sidewalks to determine their suitability for pedestrian traffic; that the City made an investigation only when a complaint was received.
Essential to plaintiff's recovery are answers to several questions:
(1) Could the condition of the sidewalk be classified as a dangerous defect or a trap; or was it trivial or slight?
(2) Was the City on notice, either actual or constructive, of the defect?
(3) Was the plaintiff contributorily negligent?
We shall discuss the first two questions together.
Admittedly there was no actual notice on the part of the City. However, it is equally clear to us that the City had constructive notice of the defect. Since the cracking, causing change of over two inches in the level of the sidewalk, had been in existence for at least seven years, the city could have discovered the defect by the slightest type of inspection.
In Robinson v. City of Alexandria (La. App.2d Cir. 1937) 174 So. 681, the court had this to say:
". . . There had never been any inspection made of this walk by any of the city officials. In fact, the city has no one whose duty it is to inspect the condition of the streets and walks in the city. It depends upon every employee of the city to report any defect they might occasionally see, and on the public in general to report such defects. We are convinced the city officials did not have actual knowledge of the condition of this walk, due to the negligence in not at least occasionally inspecting a walk which was nearly twenty years old. Actual knowledge, however, is not necessary in a case such as this where the defect had existed for many years. Knowledge is imputed to the city. . . ."
The lower court did not pass on the issue of whether the defect in the sidewalk was of such a nature as to render the city liable to a pedestrian in the absence of contributory negligence. From our study of the record, particularly the photographs, *650 we find the area of the sidewalk where plaintiff fell was in a dangerous condition. While there is some conflict in the testimony as to whether or not the depression in the sidewalk was covered by leaves, we find no evidence to contradict the testimony of plaintiff that it was.
Liability in this case is based upon Louisiana Civil Code Article 2315 as interpreted by our appellate courts. A municipality has an obligation to maintain public sidewalks paralleling its streets in a reasonably safe condition for pedestrians using them. This obligation encompasses the duty to locate and repair defects that are likely to cause injury to those lawfully using the sidewalks.
There was some effort made in this case by the municipality to exonerate itself because of certain city ordinances which place an obligation on the adjoining landowner to repair, maintain and keep clean the sidewalks. We find no merit in this contention. First, it is appropriate to point out that the liability of the adjoining property owner was decided when the exception of no cause of action filed by Caddo Parish School Board was sustained. No appeal was taken from that ruling and the issue of the Board's liability is no longer before us. Additionally, the municipal ordinances merely establish the legal relationship between the city and the adjoining property owner. Tort liability against the adjoining property owner results only when the adjoining property owner actually created or caused the defect involved. St. Paul v. Mackenroth, 246 La. 425, 165 So. 2d 273 (1964); Breaux v. Leidenheimer (La.App. 4 Cir. 1967writs refused 1968), 204 So. 2d 59, and cases cited therein. See also Toppi v. Arbour (La.App. 1 Cir. 1960), 119 So. 2d 621, where the court held a statute, imposing upon an adjoining property owner the responsibility for repair and maintenance of the sidewalks fronting on his property, was merely legislative recognition of the principle that a municipality may hold the adjoining property owner financially responsible for the cost of repairing the sidewalks but did not relieve the city of its primary obligation toward the public to maintain sidewalks in a safe condition.
We find ourselves in disagreement with the conclusion reached by the trial judge that plaintiff was guilty of contributory negligence. Even though Mrs. Snow knew the sidewalks in that vicinity were old and generally in poor condition, she had no reason to believe she would step in a hole concealed by leaves. A similar situation existed in Bustamente v. City of New Orleans (La.App. 4 Cir. 1965), 175 So. 2d 404, where the court held:
"Mrs. Bustamente was not guilty of negligence merely because she went upon the brick sidewalk. Although it was generally in poor condition, any person exercising a reasonable amount of caution should have been able to traverse it with complete safety. Mrs. Bustamente was careful to look where she was walking, and this was all the law required of her. Had not the hole been concealed from view, she would certainly have noticed it. The hole, which was invisible, constituted a trap or was in the nature of a trap which could not have been reasonably anticipated by a pedestrian. The injuries resulted therefrom and appellant is liable. . . ."
We conclude the City of Shreveport has failed to prove plaintiff was guilty of contributory negligence.
Left for consideration is the question of quantum. Fortunately, plaintiff was not as seriously disabled as might have been expected considering her age, the type of surgery and the medical treatment she underwent. She was a Medicare patient at the Confederate Memorial Medical Center. Confederate was put on notice and did not intervene and consequently plaintiff is no longer liable to that institution for any medical treatment. The only item of special damage is the sum of $35 for ambulance service.
Mrs. Snow remained in the hospital seven days following the surgical removal of *651 the kneecap. She was placed in a cylinder cast which was removed approximately two weeks after the operation and a new cast was applied which remained on her leg for several weeks thereafter. She experienced some difficulty in having the cast removed, which was attributable in part to incorrect procedures followed by the hospital personnel. After her discharge from the out-patient clinic of Confederate Memorial, plaintiff continued to suffer intermittent pain and limitation of motion. Dr. Norris was of the opinion she would have a permanent limp.
Taking all of the evidence into consideration, and being fully cognizant that each case must be decided upon its own peculiar facts, and in an effort to do justice to all parties, we find an award to plaintiff of $15,035 would be fair and reasonable.
For the reasons assigned the judgment of the lower court is reversed and set aside and it is now ordered there be judgment in favor of Dottie W. Snow and against the City of Shreveport in the sum of Fifteen Thousand, Thirty-five and no/100 Dollars ($15,035.00), together with legal interest thereon from judicial demand until paid, and all costs of these proceedings. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598667/ | 287 So.2d 625 (1973)
Attie LINCECUM et al., Plaintiffs and Appellants,
v.
Udell SMITH et al., Defendants and Appellees.
No. 4376.
Court of Appeal of Louisiana, Third Circuit.
November 30, 1973.
Rehearing Denied January 21, 1974.
Writ Refused March 8, 1974.[1]
Gist, Methvin & Trimble by John W. Munsterman, Alexandria, for plaintiffs-appellants.
Bolen & Roberts by James A. Bolen, Jr., Alexandria, for defendants-appellees.
Before FRUGE, MILLER and DOMENGEAUX, JJ.
*626 DOMENGEAUX, Judge.
This is a suit for damages brought by the plaintiffs Max and Attie Lincecum, as a result of an alleged wrongful conversion of their property by defendants. The undisputed facts are as follows:
On the morning of Easter Sunday, April 2, 1972, plaintiff Mrs. Attie F. Lincecum, let a recently acquired four month old Shih-Tzu puppy and her adult Pekingese out in her unfenced front yard to attend to their morning excretory activities while she dressed. This was a customary activity on her part which she did every morning. When Mrs. Lincecum returned to let the two dogs indoors, only her Pekingese was outside. She began frantically searching for the puppy and, in addition, telephoned several neighbors and the police. Because of an early appointment she was forced to temporarily end the search, but thereafter cancelled the meeting and returned with her daughter and son-in-law who aided in searching the neighborhood and surrounding area. The attempts to find the dog were fruitless.
On Monday, April 3, Mrs. Lincecum stated that she called the offices of all the veterinarians in Alexandria. She spoke with the secretaries, and asked that they keep a lookout for the puppy. A local veterinarian had been treating the puppy for eye infection and plaintiff hoped that the finder might take the dog for medical aid. In addition she called the dog pound and inserted a notice in the daily newspaper that the puppy was missing.
As she had no response by Thursday, April 6, Mrs. Lincecum started calling the veterinarian offices again. It was at this time that she learned from Dr. William Baker that he had treated a small puppy on Sunday, April 2, fitting the description she had given. Doctor Baker told her to contact Udell Smith, a Baptist minister who lived only several houses down from Mrs. Lincecum, regarding the whereabouts of the dog. She immediately called Mr. Smith, one of the defendants in this matter, in an effort to find her puppy. Mr. Smith denied having the puppy and told her that he would tell her where the dog was on the weekend. The next morning Mrs. Lincecum made a theft complaint with the local police department against Mr. Smith.
Thereafter, not hearing from Mr. Smith, plaintiff again called the Smith home on Saturday night. At this time she was told that her local veterinarian, Dr. Dale Turner, knew what had happened to her puppy. She in turn called her veterinarian who informed her that the puppy had been "put to sleep" by a veterinarian in Baton Rouge.
The record further reveals that the son of Udell Smith, Darrell Smith, the other defendant in this matter, found a black fuzzy puppy in his father's front yard on the morning of Easter Sunday, April 2, 1972. The dog wore no collar, rabies tag, or any other identification. Darrell Smith testified that he looked up the highway to see if anyone had let their dog out and at the time might be looking for the animal. Upon examination of the puppy, he found that the dog's eyes were infected and that there was a cut over one of the eyes. Darrell, thinking that the dog had strayed and possibly been hit by a car, took the dog into his father's house, placing the dog in a cardboard box in the bathroom while the family attended church services. His immediate inquiries were limited to asking his family if they knew who owned the dog and examining the morning paper for lost dog notices. After lunch Darrell made arrangements with a local veterinarian, Dr. William Baker, to examine the puppy. The veterinarian's inquiry showed keratitis infection in one eye and corneal ulceration in the other. Darrell left word with the veterinarian that if anyone called about the lost dog he was taking the puppy with him to Baton Rouge and could be contacted at that address or through his father in Alexandria. The decision to take the puppy with him was made after considering that the animal needed further medical treatment and that his mother was very allergic to dog hair and about to enter the hospital for an operation. Before leaving that afternoon *627 he informed his parents to contact him if someone called asking for the puppy.
On Monday morning, April 3, Darrell took the puppy to Dr. Randy Thayer, a veterinarian in Baton Rouge, who informed the defendant that the dog was almost blind and the cost for treating the dog's eyes would be between $200.00 and $300.00 with the prognosis very poor as to restoration of sight. After consulation with and recommendation by Dr. Thayer, Darrell Smith authorized the veterinarian to "put the dog to sleep", which Doctor Thayer did the same day.
Thereafter on Thursday, April 6, Darrell was informed by his family over the telephone that someone had called asking about the dog. His father had been apprehensive and hesitant to tell Mrs. Lincecum about the dog and sought the advice of his son. It was decided that the veterinarian in Baton Rouge should call Mrs. Lincecum's local veterinarian in Alexandria who could tell her what had transpired. This was done and subsequently on Saturday Mrs. Lincecum found out about her puppy by the aforementioned calls to Udell Smith and Doctor Turner.
Mrs. Lincecum and her husband subsequently filed this suit on May 8, 1972, against Udell and Darrell Smith seeking to recover the value of the puppy and damages for embarrassment, humiliation, and mental anguish over the loss of the dog. Following a trial on the merits, the trial court found in favor of defendants holding that:
(1) There was no actionable negligence on the part of defendants,
(2) Defendants did all that was expected of them under the circumstances,
(3) It was not the fault of defendants that plaintiffs suffered their loss.
It was from that judgment that this appeal was entered.
The first consideration of this Court is to determine whether defendants committed acts constituting a wrongful conversion of plaintiffs' property.
The common law tort of conversion has been recognized for well over a century by Louisiana courts as a quasi offense under Article 2315 of the Louisiana Civil Code. Edward Levy Metals, Inc. v. New Orleans Public Belt R. R., 243 La. 860, 148 So.2d 580 (1963); Rosenthral v. Baer, 18 La. Ann. 573 (1866); Hamilton v. Travelers Indemnity Co., 248 So.2d 617 (La.App. 3rd Cir. 1971); Edwards v. Max Thieme Chevrolet Co., 191 So. 569 (La.App. 2nd Cir. 1939).
Conversion is a distinct act of dominion wrongfully exerted over another's property in denial of or inconsistent with the owner's rights therein. Hamilton v. Travelers Indemnity Co., supra; 89 C.J.S. Trover and Conversion § 1 (1955); 18 Am.Jur.2d Conversion § 1 (1965).
In Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (1957), quoting from 89 C.J.S. Trover and Conversion § 3 (1955) it is stated:
"In order to constitute a conversion there must be either some repudiation of the owner's right, or some exercise of dominion over it inconsistent with such right . . ."
The destruction of goods by a positive and tortious act is a conversion. 89 C.J.S. Trover and Conversion § 35 (1955).
"While an intent to convert consummated by some positive act, is necessary to constitute conversion, it is very generally held that it is not essential to conversion that the motive or intent with which the act was committed should be wrongful, or willful or corrupt, . . . It is sufficient if the owner has been deprived of his property by the act of another assuming an unauthorized dominion and control over it. It is the effect of the *628 act which constitutes the conversion. . . it has very generally been held that the question of good faith, and the additional questions or elements of motive, knowledge or ignorance or care or negligence, (emphasis ours) are not involved in actions for conversion." 89 C.J.S. Trover and Conversion, § 7 (1955).
W. Prosser in his Handbook of The Law of Torts 83-4 (3rd Ed.1964) states:
"The intent required is not necessarily a matter of conscious wrongdoing. It is rather an intent to exercise a dominion or control over the goods which is in fact inconsistent with the plaintiff's rights . . . Persons . . . exercise acts of ownership over them at their peril, and must take the risk that there is no lawful justification for their acts."
Under the foregoing definitions and applications of the law this court is of the opinion that the actions of Darrell Smith resulted in an unfortunate but, under the law, wrongful conversion.
Despite his probable "good Samaritan" and humanitarian intentions in the beginning regarding this lost, sickly puppy, Darrell Smith did not do in our opinion what the law expected of him under the circumstances. It is evident from the record that any layman would have realized that this puppy of a Pekingese breed was not just a "stray" dog. This is especially true inasmuch as one considers Darrell Smith's background of being a member of his local kennel club. He new or should have known that this dog belonged to someone. Instead his actions were very minimal in finding the owner. He did not inquire about the dog from the neighbors, nor did he call the police, dog pound, or advertise in a newspaper.
Up to this point one might argue that he committed no act of conversion as he exercised no dominion or right of ownership over the dog. He told everyone whom he came in contact with that this in fact was not his dog, but instead one which was lost. It may also be argued, in view of the circumstances as related herein, that Darrell Smith cannot be faulted because he took the puppy with him to Baton Rouge. However, when he authorized the veterinarian to "put this dog to sleep", he asserted both dominion and a right of ownership which he did not legally possess. When he authorized destruction of the puppy there was a complete interference with the owner's rights, and an obvious conversion. It is argued that under the circumstances Darrell's action in authorizing the destruction of the dog was a humanitarian act, but the fact remains that this dog did not belong to defendant, and the dog's life was not in peril.
Louisiana Civil Code, Art. 3422, prescribes the duty upon one who finds lost things.
"Art. 3422. If he, who has found a movable thing that was lost, having caused it to be published in newspapers, and having done all that was possible to find out the true owner, can not learn who he is, he remains master of it till he, who was the proper owner, appears and proves his right; but if it be not claimed within ten years, the thing becomes his property, and he may dispose of it at his will."
Here defendant did only the minimum in finding the true owner. In addition, less than two days passed between the time he found the puppy and the time he authorized its destruction by euthanasia. Under all the facts and circumstances we feel Darrell Smith is liable for a wrongful conversion of plaintiff's property.
However, it is evident that the defendant, Rev. Udell Smith, is not guilty of any act amounting to a conversion. One is not liable for a conversion by another person where he did not direct, advise, participate in, or benefit from it, and he does not bear such a relationship to the latter person as would make him responsible *629 for his act. 89 C.J.S. Trover and Conversion § 77 (1955). It is clear from the record that Udell Smith did not participate, direct, advise, etc. in the conversion.
Having reached the conclusion that defendant, Darrell Smith, is liable, the next consideration is the amount of damages. Plaintiffs allege that the value of the dog is at least $300.00 and that plaintiffs are entitled to the additional sum of $490.00 for the mental anguish, embarrassment, and humiliation which they suffered as a result of losing the puppy.
Ordinarily the damage caused by wrongful conversion is presumed to be the value of the property wrongfully appropriated, plus interest. Importsales, Inc. v. Lindeman, supra. From an examination of the record we find that two of the dogs of the litter from which Mrs. Lincecum's puppy came were sold for the sum of $200.00, although this particular puppy was a gift. Plaintiffs argue that this was intended to be a show dog and worth much more than the others which were sold for pets. However, the evidence is to the effect that this dog had very poor vision and was blind to a large extent in both eyes. Elicited testimony shows that a blind, sick dog is not allowed to be shown under the American Kennel Club rules. We conclude that this puppy was not a healthy one, and certainly not of show quality, and consequently was of a much lesser value than the other offsprings which were sold.
The burden was on defendants to show facts authorizing a reduction or mitigation of the damages claimed. See 89 C.J. S., Trover and Conversion § 121 (1955). Here defendants have produced sufficient evidence to merit a reduction. Under the circumstances we feel that the puppy involved in this conversion had a value of $50.00.
In regard to the other damages claimed we agree that when it is found that a taking is "wrongful and without the consent of the plaintiff, some humiliation, embarrassment and inconvenience follows." Steadman v. Action Finance Corp., 197 So.2d 424 (La.App. 2nd Cir. 1967). Our examination of the circumstances surrounding this conversion indicates that the award of $100.00 for mental anguish and humiliation would be adequate and proper.
It was conceded by counsel for the plaintiffs, at oral argument, that the husband of Attie Lincecum, Max Lincecum, has no claim in this suit because of a prior judicial separation, and that any judgment awarded is to be in favor of Mrs. Lincecum only.
For the above and foregoing reasons, the judgment appealed is reversed, and there will now be judgment in favor of plaintiff Attie Lincecum and against the defendant Darrell Smith in the sum of $150.00 with legal interest from date of judicial demand. Costs, both at trial and on appeal are assessed against Darrell Smith.
Reversed and rendered.
NOTES
[1] Editor's Note: Justice BARHAM, of the Supreme Court, concurs in the refusal of the writ, with the following comment: "Trover and conversion are common law remedies. The civil law of Louisiana does not follow the common law and especially does not follow these common law concepts. Recovery is had for all damage caused by the fault of another under Civil Code Article 2315." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/727640/ | 97 F.3d 1454
NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.UNITED STATES of America, Plaintiff-Appellee,v.Deotis HILL and Lance Hill, Defendants-Appellants.
Nos. 96-1315, 96-1316.
United States Court of Appeals, Seventh Circuit.
Submitted Aug. 29, 1996.Decided Aug. 29, 1996.
Before CUMMINGS, PELL and FLAUM, Circuit Judges.
ORDER
1
Deotis Hill and his brother, Lance Hill, pleaded guilty to one count of violating 18 U.S.C. § 1951(a), conspiracy to interfere with commerce by robbery. The district court sentenced each defendant to 41 months of imprisonment and 3 years of supervised release. The attorneys who separately represented Deotis and Lance before the district court have moved to withdraw and have submitted briefs in support of their belief that there are no nonfrivolous issues on which to appeal. Anders v. California, 386 U.S. 738 (1967); United States v. Edwards, 777 F.2d 364 (7th Cir.1985) (per curiam). This court consolidated the two appeals for disposition. Pursuant to Circuit Rule 51(a), we notified Deotis and Lance of their right to raise any points they believed merited appeal, and they have both done so. Having reviewed their statements, the briefs, and the record, we are satisfied that counsel has diligently searched the record and that there are no appealable issues. We therefore grant the motions to withdraw and dismiss the appeal.
2
Deotis and Lance conspired with Kerry Williams to rob a Brinks guard as he delivered $238,000 in cash to a Wisconsin bank. Lance was aware of the Brinks delivery schedule because he worked at the bank and had helped count the currency. While Deotis waited in a getaway car, Williams entered the bank and attacked the guard with pepper spray in an elevator. This was not the first time the two had met: Williams had joined the guard in the elevator just the day before, apparently in a dry run of the robbery scheme. During the ensuing struggle, the guard shot Williams, seriously wounding him; Williams fled.
3
Deotis drove Williams to a nearby Pick 'N Save store and called 911. When the police and paramedics arrived, they found Williams in a different car that belonged to Lance. Lance, Deotis, and Williams made contradictory and inconsistent statements concerning the circumstances of Williams's injury. In a search of Lance's car, police found a license plate from the abandoned getaway car with Lance's fingerprint on it, a bloody jacket with a bullethole, and a loaded 9-mm. handgun. Lance was arrested for obstructing the investigation of the Williams shooting. Deotis and Williams were later selected by an eyewitness bank employee from a photo array as being the driver and assailant in the failed robbery attempt.
4
Before trial, Deotis moved to suppress the photo identification and several custodial statements that he made after his arrest. Lance similarly moved to suppress the evidence from the warrantless search and the evidence resulting from his allegedly improper arrest. After a lengthy hearing, the magistrate judge recommended that the district court deny the motions. Both Deotis and Lance pleaded guilty several days before trial was scheduled to begin. Their pleas were unconditional and did not preserve any pretrial issues for appeal.
5
During the change of plea hearings, the district court failed to address the effect of any term of supervised release despite the requirement of Federal Rule of Criminal Procedure 11(c)(1). However, both defendants were warned that they faced possible terms of imprisonment of 20 years. As it turned out, they received identical terms of 41 months of imprisonment and 3 years of supervised release, the sum of which is far less than the maximum 20-year term of imprisonment of which they were advised. Therefore, the court's failure to inform the defendants of the effect of a term of supervised release was not prejudicial and provides no basis for appeal. See McCleese v. United States, 75 F.3d 1174, 1180 (7th Cir.1996) (refusing to permit withdrawal of guilty plea where counsel failed to advise defendant that he could receive a term of supervised release); see also United States v. Saenz, 969 F.2d 294, 297 (7th Cir.1992).
6
In his Rule 51 statement, Lance claims that his attorney provided ineffective assistance of counsel because he "did not challenge the arrest, and the search [of the car], and [the] taking of property." But, as discussed above, the record indicates that his attorney did bring such challenges, albeit unsuccessfully. An examination of the record reveals no reason to question either the attorney's performance or the findings below.
7
Lance also claims that his attorney coerced him into pleading guilty with threats of life imprisonment if he went to trial. This claim contradicts Lance's testimony at his change of plea hearing, where he denied that anyone had made any threats or promises to get him to plead guilty. The record of a properly conducted plea hearing is entitled to a presumption of verity, and voluntary responses made by the defendant while under oath are binding. E.g., United States v. Seybold, 979 F.2d 582, 587 (7th Cir.1992), cert. denied, 508 U.S. 979 (1993). Lance has offered nothing that would overcome this presumption.
8
Lance also claims, without elaboration, that his attorney failed to interview witnesses, "did not properly investigate information regarding the case," and failed to inform Lance about all the consequences of pleading guilty. But at his change of plea hearing, when asked whether he was satisfied with his representation. Lance acknowledged that although he and his attorney had had "some disagreements," he "accept[ed] it." Most importantly, Lance's present allegations are far too vague to persuade us that his attorney either was ineffective in counseling him regarding the plea or has overlooked any nonfrivolous grounds for appeal.
9
Lance also might argue that the district court erred in granting a two-level, as opposed to three-level, sentencing reduction under U.S.S.G. § 3E1.1(b). Section 3E1.1(b)(2) entitles a defendant to an additional one-level reduction if he timely notifies the authorities of his intention to enter a plea of guilty. The stated purpose of this provision is to encourage a defendant to enter a plea of guilty early in the proceedings. Given that Lance notified the authorities of his change of plea just five days before his trial was scheduled to start, it would be frivolous for him to argue that the district court erred. See United States v. Wetwattana, No. 95-3316, 1996 WL 474445, at * 4-* 5 (7th Cir. Aug. 22, 1996); United States v. Francis, 39 F.3d 803, 807-08 (7th Cir.1994).
10
Deotis's Rule 51 statement fails to set forth any coherent grounds for appeal other than his general and unsubstantiated dissatisfaction with his attorney's performance. His attorney relates that Deotis expressed interest in challenging the two-level enhancement he received pursuant to section 2B3.1(b)(6)(C) for robbery causing a loss between $50,000 and $250,000, apparently on the theory that the evidence did not show Williams actually intended to rob the Brinks guard. Such an argument would be patently frivolous.
11
Both Lance and Deotis claim that their attorneys are ineffective and request new counsel. However, neither the record nor their statements provide any foundation for the claims of ineffectiveness. Indeed, Deotis and Lance received remarkably light sentences given the seriousness of their crime and the compelling evidence of their guilt. We deny appellants' requests for new counsel.
12
In sum, we conclude that there are no nonfrivolous grounds for appeal in either case. The attorneys' motions to withdraw are GRANTED, and the consolidated appeal is DISMISSED. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1598684/ | 287 So.2d 305 (1973)
THE FLORIDA BAR, Petitioner,
v.
Samuel CARMEL, Respondent.
No. 43880.
Supreme Court of Florida.
December 5, 1973.
Rehearing Denied January 23, 1974.
Leonard Rivkind, Miami Beach, Richard C. McFarlain, Tallahassee, and Clifford L. Davis, Pensacola, for petitioner.
Howard L. Silverstein of Gilbert & Silerstein, Miami, for respondent.
PER CURIAM.
This cause is before us on petition of The Florida Bar, charging respondent with the unauthorized practice of law. In response thereto, respondent has filed a pleading entitled, "Answer, Defenses and Motion to Dismiss."
The petition of The Florida Bar reads, in pertinent part, as follows:
"V. At all times material herein
"(A) Respondent was and is a resident of Ft. Lauderdale, Broward County, Florida.
"(B) Respondent was not and is not a member of The Florida Bar and was not and is not therefore licensed to engage in the practice of law in the State of Florida.
* * * * * *
"VII. The Respondent has engaged in the unauthorized practice of law in the State of Florida, and in particular Dade, Broward, and Palm Beach Counties by one or more of the following:
"(a) Respondent advertises to the general public to perform services of preparing, filing and releasing mechanics and materialman's liens on property.
"(b) Respondent provides a so called "kit" to customers with information on legal rights concerning mechanics liens with advice on when, how and where to file and legal effect therof.
"(c) Respondent advises as to the time for notice and other procedural law relating to mechanics lien, prepares and signs as agent notices of commitment, claims of lien and releases.
*306 "(d) Respondent, upon failure by builders to pay his customers, writes letters for said customers threatening to file liens and signs as agent of the customer.
"(e) On or about June 19, 1972, in Broward County, Florida, Respondent prepared, signed and filed a claim of lien on behalf of Air Kool Services, Inc.
"(f) On or about September 27, 1972, Respondent prepared, signed and served on William and Elizabeth T. Flynn a Notice to Owner on behalf of Air Kool Services, Inc., in Dade County, Florida.
"(g) Respondent searches public records to obtain information of claims and liens, ascertains whether legal description matches street address and other information on property in order to advise customers on how to best protect their legal rights via Mechanics' Lien Law of Florida.
"(h) Respondent at all times charges fees for this service.
"(i) That the reliance on the legal advice and services provided by Respondent does cause grievous and irreparable harm to individuals throughout the State of Florida."
Respondent's "Answer, Defenses and Motion to Dismiss" reads, in pertinent part, as follows:
"[T]he allegations in Paragraph VII are denied and Respondent further denies that he has engaged in the unauthorized practice of law within the State of Florida and specifically denies the allegations in Sub-Paragraphs (a), (b), (c), (d), (e), (f), (g), (h) and (i).
* * * * * *
"DEFENSES AND MOTION TO DISMISS.
"The Respondent, by and through his attorneys, moves to dismiss the Petition Against UnAuthorized Practice of Law and to discharge the Rule To Show Cause entered herein by this Honorable Court, on the grounds that said Petition fails to state a cause of action against the Respondent, and as defenses to this action says:
"(1) That the allegations either as a whole or severally do not constitute the unauthorized practice of law, and the acts alleged constitute soley [sic] mechanical acts not requring [sic] legal training or a license to practice law.
"(2) That no legal judgments or opinions are made or offered; that any citizen has the right of access to public records including all public documents of record.
"(3) That the collection of delinquent accounts is not a legal matter per se and the Respondent is not charged with filing suit or representing parties in judicial proceedings.
"(4) That it is not the practice of law to charge for services such as looking up legal descriptions, preparing and filing notice to owners or liens under the Mechanic Lien Law, or collecting delinquent debts; that the very Legislation establishing lien rights contemplates that same will be filed by lay persons as do the statutory forms prescribed by law. See Sec. 713.06-08 F.S.A. That historically, banks, trust companies, title companies, trade associations, bookkeepers, accountants, credit managers and others perform the same acts without a license to practice law and not contrary to the public welfare.
"(5) That the Respondent performs only specific acts for which a specific charge is made, to-wit, the filing of a notice to owner, which is not a recorded instrument, and the filing of a claim of lien which is a recorded instrument, and in both cases the Respondent does so pursuant to written consent from the customer.
"(6) That the Petition fails to show where irreparable harm has been or is being caused to the public.
*307 "(7) That a layman specializing in a single task can often perform that task better and more economically than a professional.
"(8) That the original complaining party herein is a member of the Bar who had fifteen liens filed against him. Out of all of such liens filed only five were filed properly and two of those were filed by the Respondent.
"(9) That since the hearing conducted by the Bar, the Respondent has limited all advertising to trade publications; has refrained from giving any `legal' advice, has delegated the ultimate responsibility for the filing of mechanics liens to attorneys, and as always in all cases, has recommended that his customers use their own attorneys if any `legal' proceedings are necessary."
In its petition, The Florida Bar sought the following relief:
"Petitioner prays as follows:
"1. That this Court issue its order directed to Respondent Samuel Carmel, commanding the said Respondent to show cause, if any there be, why Respondent should not be adjudged in contempt of this Court for the unauthorized practice of law in the State of Florida.
"2. That this Court issue a permanent injunction preventing and restraining the Respondent from engaging in the acts complained of and from otherwise engaging in the practice of law in the State of Florida.
"3. That this Court grant such other and further relief as to it may seem meet and proper."
While we agree with the Florida Bar that all of the foregoing conduct on the part of respondent constitutes the unauthorized practice of law, we decline to follow the recommendation that respondent, at this point in time, be held in contempt of this Court. We do however, hereby issue a permanent injunction, restraining respondent from engaging in the acts complained of, and from otherwise engaging in the practice of law in the State of Florida. Upon proof of any subsequent violation of the terms of this permanent injunction, respondent will be held in contempt of this Court.
It is so ordered.
CARLTON, C.J., and ROBERTS, BOYD, McCAIN and DEKLE, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598173/ | 287 So. 2d 108 (1973)
C & S CRANE SERVICE, INC., and Travelers Insurance Company, a Connecticut Corporation, Appellants,
v.
Frank NEGRON, Appellee.
No. 73-434.
District Court of Appeal of Florida, Third District.
December 11, 1973.
Rehearing Denied January 17, 1974.
Carey, Dwyer, Austin, Cole & Selwood and Steven R. Berger, Miami, for appellants.
Nachwalter & Falk, Miami, for appellee.
Before BARKDULL, C.J., and HENDRY and HAVERFIELD, JJ.
PER CURIAM.
Defendant-appellants appeal an adverse final judgment entered pursuant to a directed verdict on the issue of liability and a jury verdict on the issue of damages in favor of plaintiff.
The facts which are before the court are as follows: Palm Springs Gardens, Inc. contracted with the M. Hersman Construction Company to construct the skeletal portion of an apartment building. That contract provided in part that (1) the owner, Palm Springs Gardens, Inc., was acting *109 as general contractor, (2) M. Hersman Construction was not obliged to act as general contractor, (3) Hersman Construction as a service to the owner would obtain a work permit from the city for performance of all of the work on the job site, and (4) the owner agreed to indemnify and hold harmless Hersman Construction for any liability or cause of action brought against Hersman as a result of obtaining the work permit or as a result of any subcontractor, government agency or other person suing or bringing claim against Hersman Construction in some manner arising out of the procuring of the work permit. Palm Springs Gardens, Inc. individually contracted with an electrician and a plumber. Hersman Construction orally contracted with Seacoast Steel for the installation of the steel frame, with Express Concrete for the pouring of the concrete and with the appellant, C & S Crane, for the rental of a crane and a crane operator.
Plaintiff-appellee, Frank Negron, was employed by Seacoast Steel as an iron worker on the job site. While working, plaintiff received injuries when the crane operated by an employee of the appellant, C & S Crane, moved too quickly and knocked over a portion of a concrete wall onto him. Plaintiff, joined by his wife, filed an amended complaint for damages against C & S Crane Service, Inc. and its insurer, Travelers Insurance Company. At the close of the defendants' case, both parties moved for a directed verdict. The defendants argued that M. Hersman Construction was a general contractor and, therefore, all subcontractors were immune from liability. Plaintiff's motion for directed verdict on the issue of negligence was granted by the trial court and the issue of damages was submitted to the jury which returned a verdict of $28,000 for the plaintiff and $1,000 for his wife. Thereafter, defendants filed motions for new trial and for judgment in accordance with directed verdict. These motions were denied and this appeal ensued.
Appellants contend that the trial court erred in directing a verdict in favor of plaintiff on the issue of liability where the evidence showed that Hersman Construction was operating in fact as a general contractor within the meaning of Fla. Stat. §§ 440.10(1) and 440.11(1), F.S.A., was responsible for providing workmen's compensation coverage for his subcontractors, and Hersman's immunity from suit flowed to his subcontractors, including appellant, C & S Crane. We disagree.
A review of the record in the case at bar substantiates the fact that Palm Springs Garden, Inc. was the owner-builder. Further, we find that the contract between Hersman Construction Company and Palm Springs Garden is that of an owner and an independent contractor rather than between a true contractor and "subs" which is necessary for workmen's compensation immunity. See Smith v. Ussery, Fla. 1972, 261 So. 2d 164. Thus, appellants became subject to a common law suit for negligence under the circumstances in the case sub judice where the construction was undertaken with independent contractors who were engaged to perform portions of the work and the plaintiff, an employee of one such independent contractor, was injured in the course of such work by an employee of defendant-appellant C & S Crane, another independent contractor. See Jones v. Florida Power Corporation, Fla. 1954, 72 So. 2d 285; Cromer v. Thomas, Fla.App. 1960, 124 So. 2d 36; Floyd v. Flash Welding Company, Fla.App. 1961, 127 So. 2d 129; and State v. Luckie, Fla.App. 1962, 145 So. 2d 239.
Accordingly, the judgment of the trial court is hereby affirmed.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598178/ | 287 So. 2d 651 (1973)
Mrs. Annie Mae GRIFFIN, Wife of and Paul Griffin
v.
WINN DIXIE, INC. et al.
No. 5797.
Court of Appeal of Louisiana, Fourth Circuit.
December 20, 1973.
Dudley A. Philips, Jr., Malcolm, L. dela Houssaye, New Orleans, for plaintiff-appellant.
Lawrence J. Ernst, Christovich & Kearney, New Orleans, for defendant-appellee.
Before LEMMON and FLEMING, JJ., and WICKER, J. Pro Tem.
THOMAS C. WICKER, Jr., Judge Pro Tem.
This is an action for damages arising from a slip and fall sustained by plaintiff, Mrs. Annie Mae Griffin, while entering *652 Winn Dixie's Avondale food store. Plaintiff brought suit against Winn Dixie, Inc. and its insurer, Continental Insurance Company. The trial court rendered judgment in favor of defendants and dismissed plaintiff's suit. From this adverse judgment plaintiff appeals.
The evidence shows that plaintiff's fall took place on December 27, 1968 at approximately 5:30 P.M. It had rained much of the day and was drizzling at the time plaintiff entered the front door of defendant's store. According to the testimony of plaintiff and the assistant store manager, plaintiff was three to five feet inside the door when she slipped and fell on the store's tile floor.
Plaintiff testified that she did not notice any water on the floor when she entered, but after her fall her clothes were damp. The assistant store manager, Mr. Alan Mason, testified that the floor in the area of the door had been dry mopped no more than five minutes prior to plaintiff's fall, in accord with Winn Dixie's policy of periodically mopping up the water tracked in by customers on rainy days. He further testified that at the time of plaintiff's fall the floor was "as close to being dry as. . . it could be" under the existing conditions. He explained that if several persons had entered the store subsequent to the mopping, the floor may have had a little moisture on it in addition to that which plaintiff tracked in on the bottom of her own feet.
On the basis of this evidence plaintiff alleges that her accident was caused by defendant's negligence in creating a hazardous condition by having mopped the wet floor around the door and failing to warn entering customers of the slippery condition of the floor. Plaintiff argues further that defendant was negligent in failing to provide a mat or carpet on which to walk in the area of the door. Winn Dixie, on the other hand, denies any negligence on its part and asserts that the proximate cause of the accident was the negligence of plaintiff in failing to maintain a proper lookout when she should have known that the floor might be wet from people tracking rain water in from outside.
The question presented in this appeal is whether Winn Dixie breached its duty to provide a safe place for its customers to walk by maintaining the entrance to the store in a reasonably safe condition. The trial court in its reasons for judgment found that defendant had fulfilled its obligation to provide for the safety of its customers by mopping the floor in the immediate vicinity of the door periodically on rainy days and no more than five minutes before plaintiff's accident. With this conclusion we cannot disagree.
The jurisprudence relating to slip and fall accidents is voluminous. It will suffice us to examine certain well-established principles of law and several recent decisions as they relate to the facts of the present case.
The general rules with respect to the liability of a storekeeper for the safety of his customers have recently been summarized by this court in the following manner:
Generally, the rule is that a storekeeper is not an insurer of the safety of his customers but does have a responsibility in providing a safe entranceway and a safe place in which to walk. . . . He is under a duty to exercise the care of a prudent person; to provide protection against reasonably foreseeable hazards and to maintain the premises in a reasonably safe condition at all times. The requirement or prudence and the responsibility to exercise reasonable care also applies to the customer in the use of the premises, (cited authorities omitted).
Berglund v. F. W. Woolworth Co., 236 So. 2d 266, 268-269 (La.App.4th Cir. 1970). Given the basic standard of care as that exercised by the reasonably prudent storekeeper, the question before us is whether Winn Dixie lived up to that standard by *653 periodically mopping up the rain water tracked into the entrance of the store by customers.
The recently decided case of Lott v. Winn-Dixie Louisiana, Inc. et al., 280 So. 2d 659 (La.App.4th Cir. 1973) would appear to be on all fours with the case at bar. In that case, as in this, the plaintiff fell while entering a Winn Dixie store on a rainy day. Winn Dixie claimed it had fulfilled its duty to maintain the premises in a safe condition by mopping approximately every fifteen minutes; in the present case, the store contended that it mopped even more frequently and the floor had been mopped only five minutes before the accident. The court in Lott noted that the plaintiff had offered no proof to show that a substantial amount of water was on the floor. Id. at 660. In the case at bar the only evidence of water on the floor at the time of the accident was plaintiff's moist clothing and the assistant store manager's admission that customers may have tracked in a small amount of rain water in the five minutes since the floor had been mopped. The court in the Lott case held for defendant Winn Dixie, explaining its decision in the following language:
It can be reasonably anticipated that on a rainy day people will track water into a public place. . . . Any one person may track in enough water,. . . to cause the next person to slip, dependent upon the condition of the floor surface. There is no showing here that the floor surface was unduly slick or smooth such that any wetness whatever would cause patrons to slip. Upon such a showing even continuous mopping may conceivably be insufficient care. In the absence of such a showing we cannot say reasonable care was not taken.
Id. at 661. See also Berglund v. F. W. Woolworth Co., 236 So. 2d 266, 269 (La. App.4th Cir. 1970). This reasoning directly applies to the case presently before us as well.
With regard to plaintiff's allegation that Winn Dixie was negligent in failing to provide a mat or carpet in the immediate vicinity of the door, it must be noted that in conjunction with defendant's automatic door a rubber mat does extend two feet inside the door. Due to the fact that plaintiff's fall occurred three to five feet inside the door, plaintiff's complaint must be that Winn Dixie was negligent in failing to provide additional matting or carpeting. In every accident case we can speculate in retrospect on what could have been done to prevent the accident, but "failure to foresee and take steps to avoid must be judged by the rule of reason . . . and not by the standard of care indicated by hindsight." Berglund v. F. W. Woolworth Co., 236 So. 2d 266, 269 (La.App.4th Cir. 1970). The plaintiff has failed to carry the burden of proof that defendant Winn Dixie was negligent in providing for the safety of its customers when it periodically mopped the floor in the area of the door and did so only five minutes prior to plaintiff's accident.
We, therefore, affirm the trial court judgment and dismiss plaintiff's appeal at her cost.
Affirmed.
LEMMON, J., dissents. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598165/ | 287 So. 2d 847 (1973)
STERLING OIL OF OKLAHOMA, INC., et al.
v.
Howard M. PACK et al.
Bart B. CHAMBERLAIN, Jr., et al.
v.
STERLING OIL OF OKLAHOMA, INC., et al.
SC 69, 69X, 69X-1, 69X-2, 69X-3, 69X-4.
Supreme Court of Alabama.
November 15, 1973.
Rehearing Denied January 24, 1974.
*850 Willis C. Darby, Jr., Mobile, for appellant and cross-appellee, Sterling Oil of Oklahoma, Inc., and for appellants, Herbert C. Smyth and W. H. James, Jr.
Harold D. Parkman and W. Dewitt Reams, Mobile, for appellee and cross-appellant Bart B. Chamberlain, Jr.
C. A. L. Johnstone, Jr., Mobile, for appellees Big Four Oil Co., Inc., James E. Kemp and Four States Drilling Co., Inc. and cross-appellant, Big Four Oil Co., Inc.
Sam. W. Pipes, III, Mobile, for appellees and cross-appellants, Howard M. Pack and Joseph Kahn.
Champ Lyons, Jr., Montgomery, for appellees and cross-appellants, The Equity Corp., Richard E. Peck, as trustee for The Equity Corp. and Cornwall Trading Corp.
Joseph M. Matranga, Mobile, for appellee and cross-appellant, George H. Jett.
PER CURIAM.
Ten years of litigation culminate in this appeal. This total litigation between the parties consists of three separate law suits arising out of the purchase as of May 1, 1959, of Gulf Oil Company's and Gulf Refining Company's interests in the Citronelle oil field and gathering system in Mobile County, Alabama. Each of these three actions has a long, intertwined, and convoluted history.
FACTUAL BACKGROUND
In 1956, Bart B. Chamberlain, Jr. and some associates formed a corporation to acquire oil and gas leases from the State *851 of Alabama on submerged lands off the Alabama coast. The corporation so formed was Tidelands Development Corporation and from the start it was the intention of its creators to sell the corporation to Sterling Oil Company of Oklahoma. Early in 1957, Chamberlain met in Miami, Florida, with Jesse A. True, the President of Sterling, and it was agreed that Sterling would buy Tidelands for 250,000 shares of Sterling stock, $5,000 in cash, and the payment of the initial rental fee to the State of Alabama, being $121,500.
As a result of the above transaction, Chamberlain acquired 200,000 shares of Sterling stock, began to take an active interest in Sterling's business activities, and to represent Sterling as one of its attorneys.
During this same period of time (early 1957), there was pending in the U.S. District Court for the Southern District of New York anti-trust litigation against Gulf Oil Corporation and several other oil companies. The plaintiff was Gerald B. Waldron who alleged anti-trust violations on the part of the defendants arising out of a Middle East oil transaction. True of Sterling had received information, and he in turn informed Chamberlain, that Gulf and Waldron were each separately interested in settling the litigation by creating or finding a "normal" business transaction through which Gulf could buy or sell properties, with Waldron indirectly benefiting therefrom. This benefit would induce Waldron to dismiss Gulf as a party defendant in the anti-trust suit.
True solicited Chamberlain's assistance in arranging for Sterling to be the third party to the business deal sought by Gulf and Waldron. Chamberlain agreed and, during the spring and summer of 1957, Chamberlain and True presented several possible transactions involving foreign properties, each of which was rejected by Gulf. Then Chamberlain hit on the idea of purchasing the Gulf properties in the Citronelle oil field in Mobile County, Alabama, as the transaction to accomplish the settlement. The interests owned by Gulf in Citronelle consisted of producing leases and non-producing leases. Gulf Refining Company, a wholly owned subsidiary, owned an oil pipeline and gathering system which served the Citronelle field. As originally contemplated, the transaction with Gulf was to be a 50/50 proposition with Chamberlain in charge of the negotiations and Sterling to handle the financing and to provide the operational expertise required to manage and operate the Citronelle properties to be purchased from Gulf.
The negotiations went on for several months before Gulf determined that it would not deal with Sterling. It was Gulf's intention to retain an overriding royalty interest in the producing leases as part of the consideration for the sale. After a careful study of Sterling's financial condition and technical operating experience and ability, Gulf determined that there would be no deal if Sterling was to be the operating company.
Still anxious to deal with Chamberlain, Gulf suggested George H. Jett's company as a substitute for Sterling as the operating company and Chamberlain was able to interest Jett in the transaction. Jett was brought into the deal with Chamberlain and Sterling under a written agreement dated April 16, 1958. Because this agreement gave Sterling a certain amount of operational control over the properties, Gulf still refused to come to terms. To remove this objection, it was decided that Sterling's interests would thereafter be held in trust and Sterling would not have any direct control over the operation of the Citronelle properties after they were acquired from Gulf.
With Gulf's concern over Sterling's participation resolved, Chamberlain continued intense, but intermittent, negotiations during the remainder of 1958. Gulf was considering the sale of its Citronelle interests very carefully and as a means of fixing its value was awaiting the results of an engineering *852 study which was being done at Citronelle by Core Laboratories. Finally, in February, 1959, Chamberlain and Jett met with representatives of Gulf in Houston, Texas, and the terms of an agreement were settled by which Gulf would sell its Citronelle holdings.
As the first step to complete the deal, Sterling assigned to Chamberlain and Jett an agreement Sterling had obtained from Waldron in March, 1958. The "Waldron Agreement" provided that on the date Sterling acquired the producing properties of Gulf at Citronelle, Waldron would dismiss Gulf as a defendant in the anti-trust suit and Sterling would pay to Waldron $150,000 and a like amount each successive year for nine years. Although this agreement was assigned to Chamberlain and Jett, Sterling was not released from its obligations under the agreement. Additionally, Sterling was instrumental in obtaining month to month extensions of the Waldron Agreement pending negotiations with Gulf.
The next step was to arrange for the financing of the acquisition. Sterling's promises of providing the financing did not materialize and Chamberlain and Jett were forced to obtain the necessary funds themselves. The basic financing was ultimately arranged with the Chase Manhattan Bank through the assistance of Howard M. Pack and Joseph Kahn, friends of Chamberlain. The bank agreed to lend only $4,000,000 on a production payment without recourse, $500,000 on the production mortgage, and $1,250,000 on a pipeline mortgage with recourse to Jett and Chamberlain. Since the total cash price to Gulf was $6,750,000 (the balance of the full purchase price was to be paid on a production basis), this left Jett and Chamberlain short by $1,000,000 in equity money and $500,000 in necessary working capital.
While Chamberlain and Jett were in the process of trying to obtain the additional financing, a dispute arose as to the extent and character of Sterling's interest in the deal as it then stood. Chamberlain had a trust agreement drawn up which provided that Sterling would have a 1/3 interest held in trust with Chamberlain as the trustee. True objected to Chamberlain as Sterling's trustee and a meeting was set up at the St. Regis Hotel in New York on April 8, 1959. At this meeting were Chamberlain, Jett, True, Albert B. Zink, a director and attorney for Sterling, and Raymond A. Corcoran, a lawyer representing Gulf, who insisted that Gulf's offer to sell would not be extended beyond the contract deadline of May 1, 1959.
During the meeting, heated words were exchanged between True and Chamberlain. True wanted Sterling to take title to its interest in its own name and Chamberlain insisted that because of Gulf's objection, that was impossible. True refused to allow Chamberlain to act as Sterling's trustee and threatened to sue Gulf to which Corcoran replied, "Go ahead." Zink then said something to the effect that perhaps the Chase Bank will have a different attitude about a law suit. At this point, Chamberlain ordered True and Zink out of his room and they left. Zink returned later that same evening and told Chamberlain that something could be worked out rather than "blow the deal".
The next day there was a meeting at the office of Waldron's attorney between Chamberlain, Jett, Zink, and Corcoran. At this meeting an agreement was reached whereby Sterling, through Zink as trustee, would get an interest in the deal, and True would not go to the bank and destroy the financial arrangements. On this same day, Zink got Jett to sell him a 2½% Interest in the transaction for which Zink later paid Jett $2,000. This little side deal was concluded without Sterling's knowledge or consent.
With the Sterling problem temporarily resolved, Jett and Chamberlain renewed their efforts to obtain the additional financing. Again, with the help of Pack and Kahn, the sum of $1,500,000 was borrowed from The Equity Corporation, secured *853 by a limited guarantee of Pack and Kahn and a second mortgage on all the assets being purchased from Gulf. Also, as part of this financing arrangement, Jett and Chamberlain were required to convey a 5% Interest to Pack and Kahn and a 20% Interest to The Equity Corporation in the producing and nonproducing leases, and a 5¾% interest to Pack and Kahn, and a 23% interest to The Equity Corporation in the gathering system. The Equity Corporation took title to its interest in the name of a wholly owned subsidiary, Cornwall Trading Corporation. By a supplemental agreement between Jett, Chamberlain, Pack, Kahn, and Cornwall, it was agreed that when payments became due to Sterling, the interests of Pack, Kahn, and Cornwall would be subject thereto but at the same time proportionately increased so that their net take would remain the same.
The acquisition from Gulf was concluded on May 1, 1959. The agreement reached between Chamberlain, Jett, and Sterling bears that same date although it was not completely executed and delivered in its final form until August 18, 1959. Sterling qualified to do business as a foreign corporation in Alabama on August 6, 1959.
This contract (The Sterling Agreement), the basis of this litigation, is a long and complex document. By its terms the parties annulled, cancelled, and terminated all agreements of every sort and kind previously made and entered into between them; Sterling transferred to Jett and Chamberlain all of its rights, interests, claims, and demands of every kind, character and description in return for which Jett and Chamberlain agreed to grant and convey to Zink, as individual trustee for Sterling, certain interests in the Citronelle properties upon the occurrence of four events:
(a) When the production payment carved out and reserved by Gulf shall have been fully paid and satisfied;
(b) When the production loan shall have been fully paid and satisfied;
(c) When $500,000 of the amount borrowed from The Equity Corporation, which had been applied to the purchase of producing leases from Gulf, shall have been repaid; and
(d) When Jett and Chamberlain shall have recovered all legal fees, printing costs, and other expenses incurred by them in connection with the financing referred to above.
When these four events had occurred, Zink, as trustee for Sterling, would receive:
(1) An overriding royalty in each producing lease equal in value to 25% of a working interest in the leases (§ 6);[1]
*854 (2) Certain percentages of the gross profits of the gathering system (§ 7);
(3) An overriding royalty of 1/64 of 7/8 on each non-producing lease (§ 8); and
(4) Certain participation rights in the "deep tests" if and when such were ever conducted (§ 9).
Jett and Chamberlain took over the operation of the Citronelle properties as of May 1, 1959. During that first summer production declined sharply, the bank commitments went into default, and the possibility of foreclosure was an ever present threat. It became necessary to invest large sums of money in reworking the wells and effecting a secondary recovery. Sterling did not contribute to this work-over program in any way. Following the extensive work-over program, production increased substantially and the venture ultimately became a financial success.
By the year 1963, most of the bank commitments and all of Gulf's production payment had been fully paid and satisfied. However, Sterling had yet to receive a cash payment representing its interests in the properties. Another dispute arose between Sterling and Chamberlain over the amount due Sterling and this conflict resulted in the litigation now before us.
THE BATTLE OVER THE FORUM
The parties in the first suit, filed March 6, 1963, were Jett and Chamberlain as plaintiffs and Sterling and its individual trustees (Zink and Herbert C. Smyth) as defendants (Jett-Chamberlain action). Diversity necessary for removal to federal court existed on the face of the pleadings. After removal by Sterling, and while motions for leave to join Pack, Kahn, and others as indispensable parties were under submission before the federal court, the second suit was filed July 3, 1963, by Pack, Kahn, and George H. Jett Drilling Company as plaintiffs against all other parties in interest, primarily Jett, Chamberlain and Sterling Oil (Pack-Kahn action), seeking essentially the same relief as sought by the plaintiffs in the Jett-Chamberlain action. Although apparently absent of complete diversity, Sterling Oil removed the Pack-Kahn action alleging fraudulent joinder of parties. In anticipation of the granting of the motion to add parties plaintiff in the Jett-Chamberlain action and on the ground of lack of diversity in the Pack-Kahn action, Jett and Chamberlain filed respective motions to remand as to each of the first *855 two suits. The third suit was filed by Sterling in federal court on November 22, 1963, seeking specific performance of the contract favorable to Sterling, and for an accounting.
On January 6, 1964, the federal district court denied the petitions to intervene and the motions to remand, which rulings were appealed by Jett, Chamberlain, Pack, Kahn, and Cornwall (Chamberlain's group). For the reasons set forth in its consolidated opinion, despite a "disclaimer" filed by Sterling as to any right of action against Pack, Kahn, and Cornwall, the U.S. Fifth Circuit Court of Appeals affirmed as to the Jett-Chamberlain action (holding that none of the non-party petitioners was an indispensable party), and reversed as to the Pack-Kahn action (holding that there was no clear and persuasive evidence of fraud inherent in the bringing of that action while motions to intervene in the Jett-Chamberlain action were still pending). This left the first suit (Jett-Chamberlain action) in the federal forum and remanded the second suit (Pack-Kahn action) to the state forum. The Fifth Circuit Court's opinion, reported in 362 F.2d 723 at 730, concluded (first Jett v. Zink appeal, 1966):
"The result is unfortunate in that it leaves the same issues pending simultaneously in a state and federal court but we see no escape from our conclusion. The parties here brought it upon themselves in their battle over the forum in which to try their case."
On November 3, 1966, the federal district court in the Jett-Chamberlain action granted Sterling's Motion for Summary Judgment and found the Sterling Agreement to be a "valid, enforceable and subsisting agreement", which order was supplemented on November 15, 1966, making clear that its November 3 partial summary judgment was limited in its scope to disposition of the issue of Sterling's qualifying to do business. The November 15 order continued:
". . . [I]n using such language [as to the validity of the agreement] the court had no intention of determining the meaning or enforceability of any of the specific provisions of the Sterling Agreement which are the subject of controversy between the parties to this cause." [2]
Further, on March 11, 1971, the federal district court denied Sterling's motion, based on the partial summary judgment, to strike amendments by Jett and Chamberlain to their earlier complaint and answer to Sterling's cross claim, which amendments questioned the validity of the Sterling Agreement on additional grounds of fraud, misrepresentation, duress, and business compulsion.
In the second Jett v. Zink appeal, 474 F.2d 149 (Fifth Circuit, 1973), the court in chronologizing the events between the first and second appeals aptly observed:
"As all parties now concede, our decision [the 1966 appeal] signaled the start of a race to the courthouse. Despite our signal, which was supposed to remove the brakes from the wheels of justice, it took an additional five years for either of the cases to get in gear. The interim saw a great deal in the way of sparks extensive discovery, another unsuccessful removal, and interminable procedural squabblingbut little motion down the road to a decision. Finally, in February 1971, the district court, on its own motion, began pre-trial proceedings that were intended to lead to a federal trial beginning July 12, 1971. In response to this federal warm-up, Chamberlain's group [all parties in interest except Sterling] filed in the state court a motion to have the Pack-Kahn action set for trial before the Jett-Chamberlain action; it
*856 ultimately was set for trial May 4, 1971. Sterling Oil in turn reacted to this development on April 15, 1971, by asking the district court for a preliminary and permanent injunction against the state court proceedings. On April 20, 1971, the district court heard argument on the motion for preliminary injunction and on April 28, 1971, denied relief. Sterling Oil appealed this denial, but was unsuccessful in obtaining an injunction pending appeal from either the district court or this court.5 Subsequently this appeal was dismissed for lack of prosecution.
"With the final impediment removed, the state court began six weeks of hearings in the first phase of its trialdetermining the validity vel non of the Sterling Agreementand on July 10, 1971, that court entered an interlocutory decree finding it valid. Having made extensive, although at that point unsatisfactory, progress in the resolution of several substantial questions and having invested considerable time, Chamberlain's group on July 12, 1971, the day the federal trial was to begin, filed a motion in the district court to stay the federal proceedings pending a final determination in the state court. After hearings on July 12 and 14, the district court granted that motion. Additionally, at the hearing on July 14, Sterling Oil's petition for permanent injunction filed on April 15, 1971, was submitted to the court without further argument; this petition was denied July 16, 1971. Sterling Oil's appeal from this denial is before us . . .6
"Free of the complications that a simultaneous federal trial would have caused, the state court reconvened on August 2, 1971, for phase two of its trial. After weeks of hearings, that court issued its final decree November 4, 1971. Withdrawing its interlocutory decree of July 10, it found the Sterling Agreement to be unenforceable, but subsequently held that Sterling Oil was entitled to a finders fee and reasonable compensation for services totaling in excess of $500,000. This decree was incorporated into the pleadings of the Jett-Chamberlain action and on January 27, 1972, the district court granted the Chamberlain group's motion for summary judgment based on the res judicata effect of the state court decree. Sterling Oil's appeal from the summary judgment is before us . . . .7
"5. Sterling Oil also applied for prohibitory relief in the Alabama Supreme Court. After a hearing on April 30, 1971, that application was denied on May 3, 1971.
"6. Sterling Oil later amended its Notice of Appeal to include the district court's order of July 14, 1971, which granted a stay of the federal proceedings.
"7. The federal action filed by Sterling Oil had been consolidated with the Jett-Chamberlain action for trial and was included within the scope of the district court's order granting summary judgment." [Brackets supplied.]
In upholding the district courtdenying injunctive relief against the state court suit (Pack-Kahn action) and giving res judicata effect to the state court decreethe Fifth Circuit Court's opinion quoted from its earlier holding in 362 F.2d at 729-730:
"`[T]here was good reason for bringing the second suit [Pack-Kahn action] in order to assure the plaintiffs therein [Pack, Kahn, and Geo. H. Jett Drilling Company] a day in court in the event that they were not admitted as parties plaintiff in the earlier suit, as indeed they were not. The question is whether they have stated a cause of action against any of the defendants whose presence in the litigation would destroy complete diversity of citizenship of the parties. We think they have.'"
The opinion thus concluded:
"The now apparent fact that Chamberlain controlled both pieces of litigation is cause for serious concern, but it does not constitute `clear and persuasive evidence' of fraud. Chamberlain had been given authority to act for Pack, Kahn, and Jett and he was justified in bringing *857 a suit in their names to protect their interests.
". . .
"Sterling Oil has advanced only one argument as to why, with the Jett-Chamberlain action stayed and the Pack-Kahn action free to proceed, a final judgment in the latter should not be res judicata in the former. It contends that the district court considered the July 10, 1971, order of the state court res judicata and that the parties agreed on July 14, 1971, to raise no `new issues' in the state court if that action were allowed to continue. This statement, while correct, does not aid Sterling Oil. The July 10 [1971] state court order was virtually identical to the November 15, 1966, partial summary judgment in the district court, and dealt with Sterling Oil's having qualified to do business. While withdrawn by the state court's final judgment, it was not contradicted; instead the Sterling Agreement was invalidated on grounds which had already been incorporated in the federal pleadings prior to July 14, 1971 and which were therefore not `new' in terms of the parties' agreement. Because it was conceded that the Pack-Kahn action raised issues which were identical to those raised in the Jett-Chamberlain action, we hold that the district court correctly granted summary judgment in the Jett-Chamberlain action based on the final state judgment in the Pack-Kahn action."
This leaves the instant appeal (Pack-Kahn action) as the only litigation remaining between the parties.
THE INSTANT APPEAL (PACK-KAHN ACTION)
This cause is before the Court on the appeal of Sterling and certain named trustees, and the cross appeal of the Chamberlain group, from a final decree of the Circuit Court of Mobile County, Alabama, in equity sitting, entered November 29, 1971.
The original bill of complaint for declaratory judgment filed by Pack, Kahn and George H. Jett Drilling Company, Inc., sought to have the Sterling Agreement held invalid and unenforceable on the ground that Sterling was not qualified to do business in Alabama at the time the contract was made, and praying in the alternative that, if valid, the court would interpret the provisions of the agreement favorable to the complainants.
The next four years were consumed by an intense battle between the parties over the forum dispute as heretofore outlined.
On June 8, 1967, Chamberlain filed his answer and cross bill, in general admitting and adopting the allegations of the original bill. However, Chamberlain asserted for the first time, as further grounds for the invalidity and unenforceability of the Sterling Agreement, the allegations that the agreement was obtained by reason of fraud, misrepresentation, duress, and business compulsion practiced upon Jett and Chamberlain by Sterling, its officers and attorneys. Additionally, Chamberlain alleged that the operative provisions of the Sterling Agreement are so vague and indefinite as to make the document incapable of specific performance.
On May 3, 1968, Sterling filed its plea in abatement (later amended) alleging the prior pendency of the Jett-Chamberlain action, the Sterling counterclaim therein, and the pendency of the Sterling action. On March 8, 1971, the circuit court ordered the case set for trial on May 4, 1971. In the meantime, the trial court sustained demurrers to Sterling's pleas in abatement, which ruling is assigned as error.
On May 3, 1971, the court entered its pretrial order, which provided, inter alia:
"[T]hat the trial of the case shall proceed first to a determination to the issues of the validity of the `Sterling Agreement', secondly, to a consideration of the issues relating to the construction of the `Sterling Agreement', and thirdly,
*858 to the issues relating to the accounting only if and after the Court has concluded that the `Sterling Agreement' is valid and after the issues relating to construction have been determined by the Court."
On June 18, 1971, Jett amended his answer to add a cross-claim against Zink, Smyth and Sterling. Jett's cross-claim in part averred:
"The respondent G. H. Jett further avers that ALBERT BARNES ZINK did exert further economic duress and further intimidated G. H. Jett by stating to him in a Taxi cab at about the same day that he could stop the said Jesse True from going to the Chase Bank with his threats of law suits if Jett would give him part of his interest, which Jett subsequently did and for which there was no agreed price . . . that subsequently in 1963 Jett paid to Albert Barnes Zink approximately $142,000.00 for a quit claim deed which released any claim which Zink may have had in the Citronelle Oil Fields. . . . that sometime around 1967 Sterling Oil received from Zink approximately $140,000.00 by claiming that Albert Barnes Zink while acting on behalf of Sterling wrongfully obtained this amount from Jett . . . . that Albert Barnes Zink was acting in his representative capacity for Sterling at the time that he extracted his interest in the Citronelle Oil Fields from Jett and that when Sterling Oil found out of Zink's actions they made claim against Zink for the money which Jett paid to Zink and Zink paid Sterling $140,000.00."
On July 10, 1971, after hearing the testimony of Chamberlain, Jett and Corcoran, by interlocutory order, the circuit court found:
"Sterling . . . executed the Sterling Agreement in New York on May 26, 1959; Zink executed the Sterling Agreement in Pennsylvania on May 27, 1959; Sterling . . . qualified to do business in Alabama on August 6, 1959; Chamberlain executed the Sterling Agreement voluntarily on August 17, 1959, in Mobile, Alabama; Jett executed the Sterling Agreement voluntarily in Shreveport, Louisiana on August 18, 1959.
"Although the Sterling Agreement related back to and became effective as of May 1, 1959, it was actually made and delivered after Sterling . . . qualified to do business in the State of Alabama.
"The Sterling Agreement is supported by adequate considerations flowing from Sterling Oil to Jett and Chamberlain.
"It is ORDERED, ADJUDGED AND DECREED that the Sterling Agreement is a valid, enforceable and subsisting agreement between [the parties].
"It is further ordered that the remaining proceedings herein shall proceed on the premises that the Sterling Agreement is a valid, enforceable and subsisting agreement, the court reserving for future determination all controversies between the parties with respect to the meaning and enforceability vel non of the specific provisions of the Sterling Agreement."
On August 2, 1971, the appellees filed a motion to set aside the decree of July 10, 1971.
On November 4, 1971, after several weeks of additional testimony, the court entered a final decree ordering that "The interlocutory decree entered on July 10, 1971, is hereby withdrawn, set aside, and cancelled", and finding the Sterling Agreement to be "invalid, unenforceable, and without legal force or effect". No ground or grounds upon which the trial court based its finding of invalidity are set forth, but the court further found ". . . that even though Sterling had unclean hands as a result of its improper actions both prior to the making of the Sterling Agreement and after the making of said agreement, that nonetheless Sterling did make contributions to the overall project *859 [and] that Sterling is entitled to a finder's fee in a reasonable amount for having introduced Waldron to Chamberlain". The court also found that "Zink wrongfully extracted a 2½% interest in the Gulf-Jett-Chamberlain transaction from Jett for a nominal consideration of $2,000.00, and that he sold this interest for $141,921.73 on April 8, 1964 . . . [and] that Zink's wrongful actions were ratified by Sterling when it required Zink to pay to it $140,000.00 of the amount received by Zink in the sale of said 2½% interest, and that Jett is entitled to recover from Sterling the $140,000.00 which was paid to Sterling by Zink, plus interest thereon from June 27, 1967. . . ."
On November 29, 1971, the court entered a further final decree, awarding Sterling a finder's fee of $35,000.00 and awarding Sterling an additional sum of $250,000.00 as "reasonable compensation due Sterling . . . for all of its services in the matter in respect to which this litigation arose other than services rendered Chamberlain as a finder," with interest thereon totaling $500,175.00 apportioned to their respective interests among the Chamberlain group, who cross appeal asserting the money judgment in favor of Sterling as error.
CONTENTIONS OF THE PARTIES
On The Appeal
Appellees (Chamberlain group), in support of the trial court's final decree (except for the money judgment in favor of Sterling), contend that the Sterling Agreement is invalid and unenforceable because:
1. The agreement was made and entered into prior to the time that Sterling qualified as a foreign corporation to do business in the State of Alabama.
2. The agreement was the product of economic duress and business compulsion practiced upon Chamberlain and Jett by Sterling and its representatives.
3. The doctrine of unclean hands bars Sterling from obtaining any relief under the agreement because of its improper actions both prior to and after the making of the agreement.
4. The provisions of the agreement purporting to obligate Jett and Chamberlain to convey interests in the future violate the Rule Against Perpetuities.
5. The operative provisions of the agreement purporting to give interests to Sterling in the properties acquired from Gulf are void for uncertainty and indefiniteness, as the parties failed to reach a meeting of the minds sufficient to reflect an agreement capable of being enforced with judicial certainty.
Appellants (Sterling and its trustees) attack the final decree of the trial court by specific assignments of error, which, when analyzed and classified, may be stated as follows:
1. The pendency of the federal litigation abates the instant cause; or, in the alternative, the federal court's summary judgment is res judicata on the single issue of Sterling's qualifying to do business.
2. The relationship of joint adventurers existed first between Sterling and Chamberlain and then among Sterling, Chamberlain, and Jett, which created in Sterling an interest in the Gulf transaction so as to render inoperative the economic duress doctrine.
3. Assuming the Sterling Agreement was the product of economic duress, ratification of the contract by the Chamberlain group occurred long before the assertion of this defense; and that this contention is equally applicable to the money judgment against the appellants and in favor of the appellee Jett (the 2½% interest transaction).
4. The Rule Against Perpetuities is not violated by the conveying instrument, which by its express language limits the interest granted to a term not to exceed twenty-one (21) years.
*860 5. The doctrine of unclean hands has no field of operation as to collateral matters but is confined to the controversy at hand, and is not to be used to defeat justice when the party invoking the doctrine has repealed all possible benefits from the transaction.
On the Cross Appeal
The Chamberlain group, cross appellants, contend:
1. That the trial court's finding of unclean hands on the part of Sterling renders inconsistent and erroneous the money judgment in favor of Sterling and apportioned according to their respective interests among the Chamberlain group.
2. That aspect of the final decree awarding money damages in favor of Sterling and against Pack, Kahn, and Cornwall, should be reversed and rendered in view of the "disclaimer" of Sterling.
The Appeal
1. QUALIFICATION TO DO BUSINESSLEGAL EFFECT OF THE FEDERAL LITIGATION
The first and most obvious effect of the federal litigation, and its resultant judgments, is the elimination of all but the instant case (Pack-Kahn action). Less obvious, perhaps, but no less significant are at least two additional legal results which we believe are depositive of several of the contentions now before us:
(1) The Issue of Abatement. Appellants contend that the prior pendency in federal court of the Jett-Chamberlain action abates this case. Absent the federal court decrees, we would view this contention quite seriously even in the face of "additional parties" in the Pack-Kahn action. See Foreman v. Smith, 272 Ala. 624, 133 So. 2d 497 (1961); and Ex Parte Dunlap, 209 Ala. 453, 96 So. 441 (1923). We think it is clear, however, that the federal litigation has settled this issue adversely to the appellants.
There is no doubt, as we now review the history of the federal litigation, that the federal court treated the parties plaintiff in this action (Pack, Kahn, and Jett Drilling Co.) as additional parties. Although, as we have seen, the first Jett v. Zink appeal disallowed Pack, Kahn, and Cornwall as "indispensable parties" in the Jett-Chamberlain action, it ordered the Pack-Kahn action remanded on the basis that the plaintiffs therein were legally entitled to prosecute their action in state court. Commenting on Sterling's claim of fraudulent joinder, the opinion in the second Jett v. Zink appeal concluded:
"The now apparent fact that Chamberlain controlled both pieces of litigation is cause for serious concern, but it does not constitute `clear and persuasive evidence' of fraud."
The district court then stayed the federal action to allow the state action to proceed.
Moreover, practical considerations now dictate that we not hindsight the issue of "additional parties"on which the larger issue of abatement reststo a contrary result, and thus abate the only remaining litigation between the parties. Fegaro v. South Central Bell, 287 Ala. 407, 252 So. 2d 66 (1971). As to abatement generally, see Logan v. O'Barr, 271 Ala. 94, 122 So. 2d 376 (1960); see also Alabama Power Co. v. City of Scottsboro, 238 Ala. 230, 190 So. 412 (1939); and Strother v. McCord, 222 Ala. 450, 132 So. 717 (1931).
(2) The Issue of Res Judicata. The above holding adverse to the appellants on the issue of abatement does not of itself dispose of appellants' other contention that the trial court was bound to give res judicata effect to the partial summary judgment of the federal court on the issue of Sterling's qualifying to do business. Kline v. Burke Construction Co., 260 U.S. 226, 43 S. Ct. 79, 67 L. Ed. 226 (1922).
*861 The legal test, of course, is the finality vel non of such judgment. While it is true that a federal summary judgment is interlocutory to the extent that it may be revoked or amended any time prior to final judgment (Coffman v. Federal Laboratories, Inc., 171 F.2d 94 (3rd Cir., 1948)), it is also true that such judgment, contrary to our state practice, may be an appealable order under the circumstances here pertaining.[3]
We have been cited to no persuasive authority, and we have found none, on either side of this issue. We believe the appealable nature of such ordergiven the other prerequisitesis the controlling factor; and we, therefore, hold that the principle of comity requires that we give res judicata effect to the judgment of the federal court, applying Alabama substantive law, holding on its merits that the Sterling Agreement is not void for failure of Sterling to qualify as a foreign corporation in Alabama at the time of the execution of the contract, which judgment was neither revoked, amended, nor reversed on appeal. See Watson v. Mobile & O.R. Co., 233 Ala. 690, 173 So. 43 (1937).
The fact that this was a partial summary judgment is of no moment since the word "partial" refers only to a limitation of the issues within the purview of such order and not to the quality of the judgment as to the issue so adjudicated. See Biggins v. Oltmer Iron Works, 154 F.2d 214, (7th Cir., 1946). Likewise, the subsequent dismissal of the Jett-Chamberlain actionconsolidated with the Sterling actiondoes not alter this result. Indeed, the Fifth Circuit Court's opinion (the second Jett v. Zink appeal), affirming the district court's dismissal on the principle of res judicata of the state court decree in this cause, grounded its decision, in part, on an agreement of the parties that, in the event the federal district court stayed the trial of the Jett-Chamberlain action, the state court action would proceed on no "new" issues, the only "old" issue being Sterling's qualifying to do business.[4]
Moreover, for this Court to now hold otherwise as to either of the issues of abatement or res judicata would be tantamount to a restructuring by this Court of the status of the controversy at the time of the commencement of this trial, which status had been fashioned and tailored by the parties through the federal litigation; and, at this late hour, we are unwilling to cut the pattern to fit the cloth.[5]
*862 2. ECONOMIC DURESS AND RATIFICATION
While economic duress is a relatively new legal doctrine, and this Court apparently has not heretofore expressly applied the doctrine in the context of business compulsion, the basic concepts of duress and undue influencethe ancestor of its modern progenyhave long been recognized by our cases.[6] In view of the conclusion we hereafter reach with respect to ratification, we pretermit an extended discussion of the doctrine of economic duress and business compulsion.[7]
If any such "fraud" occurred, it had to be during the St. Regis Hotel incident when the parties got involved in a disagreement over whether Sterling was to take its interest in its own name or in Chamberlain's name as trustee. Otherwise stated, the argument centered around the mechanics by which Sterling's interests were to be held. A more classical factual case for the application of economic duress might have existed had Chamberlain and Jett rejected Sterling's claim for any interest whatsoever in the transaction; and Sterling had reacted by threatening to "blow the deal" between Jett and Chamberlain on the one hand and Gulf on the other by disclosing to the Chase Bank the threat of litigation. Instead, the facts disclose that the bargaining between the parties following the dispute actually resulted in more of a compromise on the part of Sterling than on the part of Jett and Chamberlain. Sterling ultimately agreed to take less than 1/3 interest in the total transaction and agreed to hold such interest through a trustee (Zink instead of Chamberlain).
Nevertheless, Chamberlain's group contends that the trial court could have found that the total default on the part of Sterling to assist in any of the financial arrangements, having already been rejected by Gulf as the operating company of the Citronelle oil field, constituted a termination of any joint adventure contract; and that Jett and Chamberlain were no longer under obligation to give up a 1/3 interest to Sterling; and that, under the circumstances, Sterling wrongfully coerced Jett and Chamberlain into an arrangement beneficial to Sterling out of proposition to its true interest.
Assuming, arguendo, that we could uphold the trial court's finding of invalidity on the ground of economic duress, we are yet faced with the appellants' contention of ratification. The issue of economic duress as a defense to the validity of the Sterling Agreement was asserted eight years after the contract and four years after the litigation began. The only conceivable basis for excusing the long delay in asserting the economic duress contention would be the continuation of the fraud.[8] All the evidence is to the contrary. The very parties with whom Sterling was allegedly dealing in its perpetration of the threats and coercive acts (Equity, Chase Bank, and Gulf) were made fully aware of Sterling's interest even before the Sterling Agreement was finalized, and supplemental agreements were entered into with each of the financial institutions involved regulating their respective interests.
Chamberlain's group contends that the threat of litigation by Sterling, while foreclosure was imminent during the lean years of 1959, 1960, and 1961, served as a circumstance which continued the coercive acts and excused their failure to repudiate the contract earlier. We find no competent *863 testimony to support any factual basis for this contention. As early as October, 1960, and again in January, 1961, it was Chamberlain who specifically threatened to file a bill for declaratory judgment against Sterling relating to differences of interpretation as to Sterling's interest in the operating leases (§ 6 of the Sterling Agreement). Chamberlain's group also contends that the delay between the filing of the Pack-Kahn action in 1963, to the date of his cross bill asserting economic duress for the first time in 1967, is excused on the basis of the time lapse occasioned by the procedural maneuvering over the forum in the federal courts; and that his cross bill was seasonably filed following the remand after the first Jett v. Zink appeal.
In the same vein, Chamberlain contends further that his cross bill alleging incapability of performance for vagueness stands on the same footing as his claim of invalidity on the grounds of economic duress and violation of the Rule Against Perpetuities insofar as the timeliness of asserting such contentions. There is a distinction, however, in that no legal onus of immediacy rested upon Chamberlain with respect to his other contentions claiming unenforceability. Such is not the case as to his contention of invalidity on the ground of economic duress, and this for the reason that, under the facts here presented, the doctrine of ratification operates only in the context of this latter contention.[9]
Although the law of economic duress has not been fully developed by our case law, this is nonetheless a species of fraud; and it is well established by our cases that one who would void a contract for fraud must assert such claim at the earliest opportunity. Dusenberry v. First National Bank of Birmingham, 271 Ala. 207, 122 So. 2d 716 (1960); Southern States Fire & Casualty Ins. Co. v. De Long, 178 Ala. 110, 59 So. 61 (1912); Royal v. Goss, 154 Ala. 117, 45 So. 231 (1907). While no arbitrary rule exists for such determination, the record taken as a wholeviewed most favorably to Chamberlainforces us to conclude that the time of filing of the Jett-Chamberlain suit (the first of the three actions) was the last opportunity to seasonably assert any claim for fraud in avoidance of the contract.
3. THE DOCTRINE OF UNCLEAN HANDS
The doctrine of unclean hands, while applicable to a defendant seeking affirmative relief (Malone v. State ex rel. Gallion, 285 Ala. 493, 234 So. 2d 32 (1970)), had no field of operation under the pleadings and proof here presented for two reasons:
First, it is the Chamberlain group who seek to invoke the maxim and it is they who seek the relief of equity to cancel the contract with Sterling and reap its full benefits. Sterling's pleading, styled a "Cross Bill", is but an answer, praying for a finding of validity of the agreementthe same relief to which it would have been entitled, if any, under an answer to the original bill and Chamberlain's cross bill.
Second, the doctrine of unclean hands cannot be applied in the context of nebulous speculation or vague generalities; but rather it finds expression in specific acts of willful misconduct which is morally reprehensible as to known facts. Weaver v. Pool, 249 Ala. 644, 32 So. 2d 765 (1947). This is not to say that it was incumbent upon the trial court to specify the particular conduct, but its finding must be based upon competent evidence of specific acts or course of conduct reproved by the doctrine.
*864 The only claim of unclean hands, which finds any competent evidentiary support, is contained in the context of appellees' contention of fraud in the form of economic duress. As we have already observed, the "economic duress" principle is at best of doubtful application; but, again, assuming the strongest possible presumptions in favor of appellees' contention, we, nevertheless, are committed to the proposition that the "unclean hands" doctrine will not be applied contrary to the rules of equity jurisprudence. Weaver v. Pool, supra.
In other words, the operative legal incidents of the principle of economic duress, including ratification and acquiescence, cannot be curtainedand thereby rendered inoperativesimply by calling such species of fraud by another nameunclean hands. When these rules are applied to the case at bar, to hold otherwise would be to effectively eliminate the principle of ratification in the name of "unclean hands", where the facts disclose that the contract cannot be invalidated on the ground of fraud due to its ratification as a matter of law.
4. THE RULE AGAINST PERPETUITIES
The "Rule Against Perpetuities" defense was injected into the litigation by amendments filed by the Chamberlain group after the first six weeks of trial had been concluded. While not procedurally fatal, this contention seems almost too void of substance to merit our attention. Chamberlain refused to execute and deliver the Sterling Agreement until the trust agreement between Sterling and its trustee, Zink, the exact terms of which were dictated by Chamberlain, had been fully executed, made a part of, and incorporated into the Sterling Agreement. This trust agreement provides inter alia:
"That this trust may be terminated upon the written consent of all the contracting parties to the said agreement of May 1, 1959 (Sterling Agreement), or its successors in interest but in no event shall it exist for the period greater than twenty-one (21) years from the effective date hereof."
If ever an agreement was purposefully, and artfully, drafted to avoid the operation of the Rule Against Perpetuities, this was such a document; and, in view of its express language, any discussion of the various aspects of the rule would be merely an academic exercise and add nothing to the body of the law. See Crawford v. Carlisle, 206 Ala. 379, 89 So. 565 (1921).
After allowing all reasonable presumptions in favor of the correctness of the ruling of the trial court, we are constrained to say that the judgment is without any competent supporting testimony and cannot be affirmed as to any of the appellees' first four contentions heretofore discussed. Ray v. Richardson, 250 Ala. 705, 36 So. 2d 89 (1948); Richards v. William Beach Hardware Co., 242 Ala. 535, 7 So. 2d 492 (1942).
5. VAGUENESS, INDEFINITENESS AND UNCERTAINTY
We now proceed to address ourselves to the last contention made by appellees that the provisions of the agreement purporting to give interests to Sterling are vague, indefinite and uncertain.
It is a cardinal principle that, where testimony is taken ore tenus, the findings of facts made and entered by the trial court will be sustained unless they are clearly and palpably wrong or without supporting evidence, or are manifestly unjust. Renfroe v. Weaver, 285 Ala. 1, 228 So. 2d 764 (1969). Where the trial judge's ruling is grounded on no specific ground, his judgment must be sustained on appeal if any good ground is presented. Martin v. Birmingham Southern R. Co., 250 Ala. 583, 35 So. 2d 339 (1948).
Upon review of the record in this cause, we are of the opinion that there was ample evidence to support a conclusion by *865 the trial judge that the agreement was invalid and unenforceable on the ground that certain essential provisions in the agreement were vague and uncertain.
First, it appears clear that the issue of the uncertainty of the agreement was properly before the trial court and was, in fact, tried by the parties. Both the original complaint as amended and Chamberlain's cross-complaint contain the following allegations:
"a. The so-called Agreement is conflicting, ambiguous, indefinite and uncertain and cannot be specifically performed, for it contains no specific agreement on (1) monthly operating costs * * * (2) the wellhead price * * * (3) the rate of production * * * and as a result the agreement provides no means of determining the value of the 25 percent working interest referred to in the Sterling Agreement, nor for computing an override which would be equal thereto in value * * *."
And in their prayer for relief, appellees contend that:
"6. The Sterling Agreement, insofar as it purports to bind Jett and Chamberlain to convey an interest in the former Gulf producing properties, as that term is sought to be defined in the so-called Sterling Agreement, is void for uncertainty and indefiniteness which cannot be cured through construction, or by the intervention of arbitrators, as the parties omitted to include and agree upon essential elements which it was necessary for them to include and agree upon in order to create a valid, legally binding and specifically [enforceable] [performable] agreement."
Appellant Sterling expressly joined issue with appellees on the question of uncertainty in its "Additional Defensive Pleading." In its answer, Sterling admitted that the agreement did not contain specific agreement on the three items enumerated in the complaint, but alleged in defense that the agreement was subject to both the Federal Arbitration Act, 9 U.S.C. § 1, and to Chapter 19, Arbitration and Award, of Title 7, Code of Alabama 1940 (Recompiled 1958), §§ 829-844.
It appears that the trial court did reach the question of the uncertainty of the agreement. The pre-trial order of May 3, 1971 states that:
"* * * [I]t is ORDERED and DIRECTED by the Court that the trial of the case shall proceed first to a determination to the issues of the validity of the `Sterling Agreement', secondly, to a consideration of the issues relating to the construction of the `Sterling Agreement', and thirdly, to the issues relating to accounting only if and after the Court has concluded that the `Sterling Agreement' is valid and after the issues relating to construction have been determined by the Court."
In the interlocutory order of July 10, 1971, ending the first phase of the trial, the trial judge indicated that the court would then proceed to a determination of "all controversies between the parties with respect to the meaning and enforceability vel non of the specific provisions of the Sterling Agreement."
After a full trial, which included extensive testimony on the issue of the uncertainty of certain provisions of the agreement, the trial judge issued a final decree stating:
"The Court is further of the opinion after consideration of all the said legally admissible evidence, the oral arguments of the attorneys for the respective parties, and the written briefs which have been submitted in this cause, that said agreement is not valid and enforceable." (Emphasis supplied)
We, therefore, conclude that the issue of uncertainty was considered by the trial court. Moreover, we are convinced that there was ample evidence before the trial court to support a conclusion that essential terms of the agreement were too vague and uncertain to constitute a binding contract.
*866 Chamberlain testified that a "supplemental agreement" defining certain terms and setting certain production and price figures would be necessary to give any meaning to the agreement; that he "suspected" even at the time of entering into the agreement that there was no such thing as an ascertainable override equal in value to a 25% working interest absent further agreement of the parties on a number of other factors; that the agreement was "something substantially less than an agreement"; and, that paragraph 7(c) was "so indefinite that it is unenforceable." Raymond Corcoran testified that he had seen other documents attempting to give similar overriding royalties, but that they usually have a good bit more definition of terms for computing same. B. P. Huddleston, a consulting petroleum engineer, testified that he could not convert the 25% working interest into an overriding royalty interest without information from the parties with regard to the definition of "value," the "starting date," instructions on "type of reserves," instructions on escalation of the future price of crude oil, relationship of the Sterling override to the Gulf override, and probably other items. William Horner, another petroleum engineer, similarly testified as to various factors which were needed to make the conversion but which were not specified in the agreement, characterizing an overriding royalty interest without specification of such factors "a leap into fantasy."
Even though appellant Sterling produced expert witnesses who testified that they could determine the interest specified by paragraph 6, there was sufficient evidence to support a conclusion by the trial judge that the meaning of paragraph 6 was so uncertain as to be invalid. Furthermore, contrary to Sterling's contentions, such uncertainty cannot be cured by arbitration. While the agreement itself made provision for arbitrators, it is wellsettled law in this state that courts cannot specifically enforce an agreement to submit a controversy to arbitration. Title 9, § 55, Code of Alabama 1940 (Recompiled 1958).
We, therefore, conclude that the judgment of the trial court declaring the Sterling agreement invalid and unenforceable is due to be affirmed.
THE 2½% INTEREST FROM JETT TO ZINK
The trial court found that Zink had wrongfully extracted from Jett a 2½% interest in the transaction for a nominal consideration of $2,000. This occurred in April of 1959. In 1964, after the parties were already in litigation, Jett repurchased this 2½% interest from Zink for $141,921.73. Sterling learned of this entire side deal for the first time through an amended pleading by Jett seeking a return of his money. Zink subsequently, under pressure of disbarment from Sterling, paid $140,000 of this resale price to Sterling. By further amendment, Jett then claimed a refund of the $140,000 from Sterling. The court found that Zink's wrongful actions (the original extortion) were ratified by Sterling when it required Zink to pay to it $140,000 and decreed that Sterling pay to Jett $140,000 with interest from June 27, 1967the date of its receipt of its money from Zink.
The immediate facts leading up to the repurchase of this 2½% interest by Jett from Sterling show that Chamberlain purchased Jett's interest in 1964, and, as a condition to this purchase, he required Jett to reacquire for Chamberlain Zink's 2½% interest. The purchase price was arrived at by simply applying the same ratio of value used by Chamberlain in purchasing Jett's interest.
These facts render impossible our efforts to uphold the lower court's decree returning to Jett from Sterling the $140,000 sum. Indeed, appellees do not claim that there was any wrongful action connected with the repurchase of the 2½% interest by Jett from Zink; and the evidence does not contain even a scintilla that the resale transaction *867 between Jett and Zink was tainted with any coercion, pressure, misrepresentation, or other wrongful act on the part of Zink at that time. All of the parties concede that Sterling knew nothing of this side deal between Zink and Jett, including the repurchase, until well after the fact.
Conceivably, if Zink had sold this 2½% interest to a third party and Sterling had made Zink pay it the purchase price therefor, or if Jett had not repurchased from Zink and had included in his cross claim a prayer for rescission, a different situation might be presented in favor of the trial court's holding. However, the development of our case law on the principle of ratification compels the conclusion that one who treats the contract as in force through express affirmance by word or deed, after full knowledge of the alleged fraud, defeats the right of rescission. Where the parties, as here, were already in litigation and Jett voluntarily paid Zink approximately $142,000 for the repurchase of the 2½% interest, ratification of the initial wrongful act of extracting the 2½% interest unquestionably results as a matter of law. Nelson v. Darling Shop of Birmingham, Inc., 275 Ala. 598, 157 So. 2d 23 (1963); Stephenson v. Allison, 123 Ala. 439, 26 So. 290 (1899).[10]
The Cross Appeal
Chamberlain's group cross assigns error in the awarding of a money judgment in favor of Sterling for a "finders fee" and "reasonable compensation" for services rendered in the Gulf-Jett-Chamberlain transaction. Such award, argues the cross appellants, is inconsistent with the Court's finding of unclean hands. Our conclusion, heretofore stated, as to the contention of unclean hands disposes of this cross assignment of error. After careful consideration of each of appellees' cross assignments of error, we find no error to reverse on cross appeal.
CONCLUSION
We summarize our conclusions as follows:
1. Sterling's plea in abatement based upon the prior pendency of the action in federal court was properly denied.
2. The federal court decree of November 3, 1966, granting Sterling's motion for summary judgment on the issue of Sterling's qualifying to do business, is res judicata in the instant appeal.
3. There is insufficient evidence in the record to support the judgment of the trial court on the grounds of economic duress, unclean hands and the Rule Against Perpetuities.
4. There is sufficient evidence in the record to uphold the judgment of the trial court in declaring the Sterling Agreement invalid and unenforceable on the ground of vagueness, indefiniteness and uncertainty of certain essential provisions of § 6.
5. The trial court correctly granted Sterling a finder's fee.
6. The trial court erred in awarding to Jett the sum of $140,000.
It is, therefore, that we conclude that the decree of the trial court should be affirmed insofar as it adjudges the Sterling Agreement to be invalid and unenforceable and that the decree should be reversed insofar as it awards Jett the sum of $140,000. Judgment is here rendered accordingly.
Affirmed in part. Reversed and rendered in part.
MERRILL, BLOODWORTH, and JONES, JJ., concur.
*868 COLEMAN and HARWOOD, JJ., concur in the result.
MADDOX, J., concurs specially.
HEFLIN, C.J., and McCALL and FAULKNER, JJ., recused themselves.
MADDOX, Justice (concurring specially).
I concur that the trial court had before it sufficient evidence upon which to find the Sterling Agreement was invalid and unenforceable because it was vague and uncertain. Therefore, I concur fully in this portion of the opinion. Nevertheless, I also think that the court's finding that the agreement was invalid and unenforceable could be sustained on the ground that Sterling was guilty of "unclean hands."
Implicit, if not explicit, in the final decree of the court is a determination that Sterling was guilty of "unclean hands" both prior to the execution of the Sterling Agreement and after the execution of the Sterling Agreement. I think there is sufficient evidence to support this finding.
"Clean hands" refers to willful misconduct. Equity will consider the conduct of the adversary, the requirements of public policy and the relation of the conduct to the subject matter of the suit. Weaver v. Pool, 249 Ala. 644, 32 So. 2d 765 (1947).
Sterling's principal argument is that it entered into a joint venture with Chamberlain to acquire the Gulf properties. If Sterling was a joint adventurer with Chamberlain and Jett in the Gulf acquisitionas it argues it wasthe general rule is that joint adventurers owe one another the duty to observe the utmost good faith in all that relates to their common interest, from the beginning of the negotiations for the formation of the enterprise to its termination. See Van Heuvel v. Roberts, 221 Ala. 83, 127 So. 506 (1930); Saunders v. McDonough, 191 Ala. 119, 67 So. 591 (1914); 48 C.J.S. Joint Adventures § 5, p. 824.
The trial court could have found from the evidence that Sterling failed to exercise good faith, when in April, 1959, Sterling, after having failed to secure the financing for the Gulf acquisition and being aware that Gulf would not sell if Sterling held an operating interest, threatened to "blow the deal" by contacting the financiers from which Chamberlain had commitments. There was substantial evidence that Sterling participated in litigation against Chamberlain, which litigation, if successful, would have diminished Sterling's profits in the properties in which it now claims an interest. Sterling contends that its failure to carry out its obligations would not terminate its right to share in the profits of the joint venture, citing Saunders v. McDonough, 191 Ala. 119, 67 So. 591 (1914). Assuming Sterling correctly construes Saunders, its argument would be applicable only if the court had refused to give Sterling anything for its contribution to the joint adventure. The trial court gave Sterling a finder's fee and its expenses, plus interest. I cannot say that the amount awarded is plainly and palpably wrong. In fact, I think there was sufficient evidence for the trial court to conclude that at the time of the Gulf acquisition, Sterling had contributed its services as a finder, and as a guarantor of the $1,500,000 Waldron obligation (Sterling never became obligated), and other services in connection with the negotiations leading up to the acquisition. The decree attempts to make Sterling whole for this contribution, in my opinion.
Consequently, I concur in the affirmance of the judgment on the cross-appeal and reject the cross-appellants' arguments that Sterling should get nothing because the court found it to have "unclean hands," since I believe the "clean hands" doctrine has its limitations.
In Weaver v. Pool, supra, this Court commented on the limitation of the "unclean hands" doctrine, as follows:
"The maxim also has its limitations, and will not be allowed to work injustice
*869 and wrong, nor be applied contrary to the rules of equity jurisprudence. 30 C. J.S. Equity § 98. This court recognized such limitation in Harris v. Harris, 208 Ala. 20, 93 So. 841, where is found an extensive quotation from the Wisconsin court in Clemens v. Clemens, 28 Wis. 637, 9 Am.Rep. 520, and as appropriate here is that part of the quotation which reads as follows:
"`Though guilty of a wrong or transgression of the law in one particular, a party does not become an outlaw, or forfeit his right to legal protection in all others, nor lay himself open to the frauds and machinations of others to be practiced and perpetrated against him with impunity.'"
I also concur in the result which reverses the judgment of the trial court awarding Jett $140,000 against Sterling.
NOTES
[1] This paraphrase of Sterling's interest in the producing leases has been overly simplified to facilitate a manageable recitation of the facts; but due to a contention of invalidity of this provision on grounds of vagueness and uncertaintyand our later treatment of this issuewe set forth in haec verba the pertinent language of this section of the contract:
"6. . . . Tett and Chamberlain will transfer and assign to the individual trustee for Sterling an overriding royalty interest in each lease then in effect which was a Producing Lease or a Producing Property within the definitions contained in this Agreement, the percentage of such overriding royalty to be computed as hereinafter provided, separately as to each such Producing Lease, so that the overriding royalty shall be equal in value, as of the date of said transfer and assignment, to the value on that date of a 25 per cent working interest in each of such Producing Leases acquired from Gulf Oil by Jett and Chamberlain at Closing.
"The parties hereto agree that promptly when all of the conditions set forth in subdivisions `(a)', `(b)', `(c)' and `(d)' above shall have been fully complied with, or prior thereto, each of them will nominate in writing a petroleum engineer or engineering firm, which is to say, Jett and Chamberlain, acting together, will nominate one petroleum engineer or engineering firm, and the individual trustee for Sterling will nominate another engineer or engineering firm, each engineer to be authorized, directed and paid by the one who nominated him, to make such studies, examinations and evaluations necessary to equate the percentage of working interest set forth above to the overriding royalty interest hereinabove in this paragraph provided for.
"The petroleum engineer or engineering firm to selected shall be authorized by the person nominating him to agree on behalf of the person nominating him on that percentage of overriding royalty interest which would be equal in value to the percentage of working interest, as contemplated by this Agreement; further authorizing such engineer to agree, in the event that the two engineers or firms cannot agree on such an evaluation, on the appointment of a third engineer, and that thereafter the majority of the three engineers or engineering firms thus appointed shall have the right to fix such percentage of overriding royalty interest, the parties to be bound thereby.
"Jett and Chamberlain agree that in the event they shall voluntarily amend the terms of the Production Loan so as to delay or extend the time for final payment thereof beyond the time when the same would have been fully paid if not changed from the form and content in which it existed at the date of Closing with Gulf Oil, unless such change or amendments become necessary for reasons beyond their control, or because the Producing Leases did not produce sufficient income to the operators to operate said leases, then in such event, when the engineers fix the amount of the overriding royalty, as hereinabove provided for, to be assigned to the trustee for Sterling, it shall be done so as to pay Sterling as if it had been made effective retroactive to the date when, but for such delays in the payment of such Production Loan, the application of such overriding royalty would have become effective."
[2] It is significant to note (for purposes of our later consideration of res judicata) that, at the time of such order, the only ground of contest of validity was the very issue adjudicated, i.e., Sterling's qualifying to do business.
[3] Care should be exercised not to construe this statement as holding that every federal summary judgment will be accorded res judicata effect by this Court; the finality for such purpose is wholly dependent upon the criteria for appealability set forth in Title 28, § 1291, U.S.Code, Annotated (Note 146). As to summary judgments generally, see Wright, Federal Practice and Procedure, § 2737.
[4] Note the reference made to this agreement of the parties in the last quoted paragraph of Jett v. Zink (second appeal) set out above at the conclusion of our discussion of the "Battle Over the Forum". Although we have grounded our holding as to this issue on the doctrine of res judicata, the principle of estoppel based on the agreement of the parties to proceed on no "new" issues would likewise operate to force the same conclusion. See Davis v. Wakelee, 156 U.S. 680, 15 S. Ct. 555, 39 L. Ed. 578, 15 S. Ct. 555 (1895); Watt v. Lee, 238 Ala. 451, 191 So. 628 (1939).
[5] There is nothing in the record to indicate, nor do we have reason to suspect, that the trial court's reversal of its holding as to validity was grounded on the issue of Sterling's qualifying to do business. Indeed, the undisputed facts on their merits dictate a finding consistent with both the federal summary judgment and lower court's interlocutory order holding the agreement valid on this issue as a matter of law. Title 10, § 21(87), Code of Alabama 1940, as amended.
Furthermore, it was Chamberlain who employed legal counsel on behalf of Sterling for the express purpose of qualifying Sterling to do business in Alabama as a foreign corporation, and for the further purpose of handling the execution and delivery of the contract so as not to run afoul of this legal impediment.
[6] Juzan v. Toulmin, 9 Ala. 662, 44 Am.Dec. 448 (1846). See also later cases collected under 5 Ala.Dig., Contracts 95, and 96.
[7] Our somewhat summary handling of this issue is not to be construed as a rejection of the doctrine of economic duress and business compulsion; we simply defer fuller treatment to a more appropriate case.
[8] See Motor Equipment Co. v. McLaughlin, 156 Kan. 258, 133 P.2d 149 (1943); and Averill Machinery Co. v. Taylor, 70 Mont. 70, 223 P. 918 (1923).
[9] This is not to say that the doctrine of ratification (or acquiescence) has no field of operation generally as to a defense of vagueness. Certainly, parties may expressly or impliedly ratify, or by a course of conduct acquiesce in, otherwise vague language in a contract; but here, as we have seen, Chamberlain raised this issue of vagueness as to the operating leases provision in October, 1960.
[10] The ratification here referred to is not to be confused with the alleged ratification of Zink's conduct by Sterling, but rather this reference is to Jett's ratification of the original transaction. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598121/ | 3 So. 3d 344 (2008)
Stephen WINTER, Appellant,
v.
Robert HAGER, Jon Miller, Bruce Carr, Emerald Shares, LLC, South Elmwood Realty Co., Inc., Safe Harbour World Health & Healing Foundation, China America Group, Inc., and David Knoll, Appellees.
No. 2D08-593.
District Court of Appeal of Florida, Second District.
December 3, 2008.
Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellant.
Philip J. Crowley and Tracy Martinell Henry of Hinshaw & Culbertson LLP, Tampa, for Appellees Robert Hager, Jon Miller, and Bruce Carr.
No appearance for remaining appellees.
PER CURIAM.
Appellees Robert Hager, Jon Miller, and Bruce Carr filed suit against appellant Stephen Winter and his co-defendants, appellees Emerald Shares, LLC, South Elmwood Realty Co., Inc., Safe Harbour World Health & Healing Foundation, China America Group, Inc., and David Knoll, claiming breach of contract, unjust enrichment, and account stated. The suit was based on a loan to Emerald Shares, LLC that was allegedly guaranteed by Mr. Winter and his co-defendants. Attached to the complaint was the primary evidence: the promissory note of Emerald Shares for one million dollars and the guaranties of the defendants. Mr. Winter's alleged personal payment guaranty consisted of ten *345 pages of which only the last, the signature page, contained a fax notation showing that it was sent from Mr. Winter's home telephone number. After several pretrial motions and discovery, the plaintiffs moved for summary judgment, despite the fact that some motions had not yet been ruled upon. Mr. Winter opposed the motion for summary judgment, claiming, among other things, that what he signed was not a personal guaranty but an agreement to grant the plaintiffs a shared lien on a parcel of real estate. The trial court granted the summary judgment and entered judgment in favor of the plaintiffs. We reverse.
We are cognizant of the fact that immediately above Mr. Winter's signature on the last page of the alleged guaranty appears the following: "IN WITNESS WHEREOF, the undersigned has duly executed this Guaranty as a sealed instrument the day and year first above set forth[.]" Mr. Winter testified in deposition that he did not realize, not having the remaining pages before him when he signed this page and faxed it to the plaintiffs, that this was a personal guaranty and not the agreement for the shared lien position he had negotiated. Several other witnesses, whose sworn statements were presented to the trial court, corroborated Mr. Winter's understanding. This evidence shows that a disputed, material fact existed, including receipt of an email containing the entire ten-page guaranty. It was, thus, error for the trial court to grant summary judgment at this stage. See Brakefield v. CIT Group/Consumer Fin., Inc., 787 So. 2d 115, 116 (Fla. 2d DCA 2001) (reversing summary judgment because movant had not "demonstrated conclusively and with certainty that [the nonmovant] could not raise any genuine issues of material fact").
Summary judgment reversed and cause remanded for further proceedings.
FULMER, CASANUEVA, and KELLY, JJ., Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598111/ | 3 So. 3d 974 (2009)
Dwayne Irwin PARKER, Appellant,
v.
STATE of Florida, Appellee.
No. SC06-2176.
Supreme Court of Florida.
January 22, 2009.
Rehearing Denied February 25, 2009.
*975 Neal A. Dupree, Capital Collateral Regional Counsel, Suzanne Keffer, Assistant CCR Counsel, and Barbara L. Costa, *976 CCRC Staff Attorney, Southern Region, Fort Lauderdale, FL, for Appellant.
Bill McCollum, Attorney General, Tallahassee, Florida, and Leslie T. Campbell, Assistant Attorney General, West Palm Beach, FL, for Appellee.
PER CURIAM.
This case is before the Court on appeal from an order denying a motion to vacate a judgment of conviction of first-degree murder and a sentence of death under Florida Rule of Criminal Procedure 3.851. Because the order concerns postconviction relief from a capital conviction for which a sentence of death was imposed, this Court has jurisdiction of the appeal under article V, section 3(b)(1) of the Florida Constitution.
For the reasons explained below, we affirm the trial court's denial of Parker's guilt phase and evidentiary hearing claims, but reverse and remand for a new penalty phase proceeding because counsel failed to fully investigate and present mitigating evidence regarding Parker's childhood and mental health.
FACTS AND PROCEDURAL HISTORY
Dwayne Irwin Parker was convicted of first-degree murder, armed robbery, and aggravated battery with a firearm related to the robbery of a Pizza Hut in Pompano Beach in 1989. The facts of the case are fully explained in Parker v. State, 641 So. 2d 369, 372-73 (Fla.1994). The jury recommended a death sentence by a vote of eight to four. The trial judge agreed with the jury's recommendation and sentenced Parker to death. The trial judge found four aggravating factors: (1) Parker had a prior conviction of a violent felony; (2) Parker knowingly created a great risk of death to many persons; (3) the murder was committed while Parker was engaged in committing, or during flight after committing, a robbery; and (4) the murder was committed to avoid or prevent arrest. The judge found that no statutory or nonstatutory mitigating circumstances had been established.
On direct appeal, Parker raised sixteen claims.[1] This Court found the claims either to be without merit, not properly preserved for appellate review, or harmless beyond a reasonable doubt. Id. at 372-78. Accordingly, we affirmed the convictions and the sentence of death.
Parker filed his initial motion for postconviction relief in 1997 and requested leave to amend the motion after the State complied with all of his outstanding public records requests. Pursuant to the subsequently enacted Florida Rule of Criminal Procedure 3.852(h)(2), Parker filed multiple *977 requests for additional public records that had not been included in his initial requests. Parker filed an amended postconviction motion in June 2000 and a Huff hearing[2] was scheduled for April 2001. Parker continued to file requests for additional public records. In February 2002, the trial court issued an order summarily denying all of Parker's postconviction claims.
Parker appealed the denial to this Court and also filed a habeas petition. He raised fourteen issues in the postconviction appeal. Parker v. State, 904 So. 2d 370, 374 n. 2 (Fla.2005).[3] He raised a number of claims in his habeas petition,[4] but we found no merit to these claims and denied habeas relief.
We concluded that Parker's claim of ineffective assistance of counsel during the guilt and penalty phases required an evidentiary hearing. Thus, we reversed the trial court's order as to this single issue and remanded for an evidentiary hearing on counsel's failure to present expert testimony on the fatal bullet and failure to fully investigate and present mitigating evidence concerning Parker's abusive childhood and alleged mental illness. Id. at 375-378. We also concluded that Parker was entitled to an evidentiary hearing to present evidence of the abuse he suffered as a child and his mental infirmities, which he claimed was never presented during trial. Id. at 378.
*978 On remand, the postconviction trial court conducted a five-day evidentiary hearing. Parker presented testimony from thirteen witnesses, including his lead trial counsel Bo Hitchcock, penalty phase counsel Theodore Booras, public defender investigators Howard Finkelstein and Carton Moore, guilt phase investigator Cary Kultau, mental health expert Dr. Glenn Caddy, Parker's sister Princess Ferrette, family friend Virginia Holcombe, childhood friend Gregory Pender, child protective services worker Dr. Larry Richardson, psychiatric expert Dr. David Pickar, psychologist Dr. Jethro Toomer, neuropsychologist Dr. Barry Crown, and photography expert Robert Wyman. Parker attempted to call four other witnesses in support of his claim of ineffective assistance of counsel during the guilt phase. However, the lower court granted the State's motion to strike these witnesses and Parker was precluded from calling Detective Robert Cerat, Dr. Michael Bell, Dr. Ronald Wright, and State Attorney Michael Satz. Following the evidentiary hearing, the trial court denied all postconviction relief.
Parker has appealed the denial of postconviction relief on his claims of ineffective assistance of counsel at the guilt and penalty phases of trial. He also claims that he was denied a full and fair evidentiary hearing below because the judge should have recused himself based on an alleged bias exhibited toward Parker and because Parker was not allowed to present evidence relevant to his claim of guilt phase ineffective assistance of counsel based on the court's exclusion of four witnesses. We find no merit to the claims of ineffective assistance of counsel at the guilt phase regarding the bullet evidence and the denial of a fair evidentiary hearing. We find that Parker's third claim, ineffective assistance of counsel at the penalty phase regarding mitigating evidence, requires a new penalty phase trial. This opinion will discuss each of these claims in turn.
GUILT PHASE INEFFECTIVE ASSISTANCE OF COUNSEL
Parker claims that his trial counsel rendered ineffective assistance at the guilt phase of trial because he failed to retain forensic experts in the fields of photography and tool marking to challenge the State's bullet evidence. This claim is based on the following circumstances. In his autopsy report, written findings, and first sworn deposition, medical examiner Dr. Michael Bell stated that the bullet removed from the victim's body was silver-colored and had no deformations or cuts on it. One month before trial, the prosecutor called Dr. Bell and asked him to look at his photographic slide of the bullet embedded in the victim's body. Dr. Bell then noticed that there was a cut in the bullet and, although the center of the bullet appeared white because of the reflection of the flash, that the bullet was actually gold-colored at the margins where the flash was not reflected. In a second sworn deposition, Dr. Bell stated that he had made a mistake and the bullet was actually gold-colored and had a deformation or cut visible on it. The color of the bullet was significant because Parker's bullets were all gold-colored and the sheriff's deputies used silver-colored bullets. Parker, 904 So.2d at 376 n. 4; Parker, 641 So.2d at 374 n. 5. Parker's defense theory had been that the victim was mistakenly shot by the responding deputies who thought the victim was involved in the crime when they saw him running after Parker.
At trial, the State presented the bullet that was removed from the victim's body. Dr. Bell testified that he had removed this bullet from the victim and gave it to Detective Cerat who placed it into an evidence *979 envelope. Detective Cerat testified that he was present at the autopsy, saw Dr. Bell remove the bullet, personally placed the bullet in the evidence envelope, sealed the envelope, and took possession of the bullet. Both the medical examiner and the detective testified that they initialed the evidence envelope. Detective Cerat also testified that he took the photographs of the bullet that were introduced into evidence. He further testified that, because of the photographic flash, the bullet in the original prints appeared white in the middle and gold at the edges. Firearms examiner Patrick Garland testified that he made enlargement photographs of the bullet and of the photograph depicting the bullet embedded in the victim by using a camera attached to a microscope. Garland testified that he was able to determine that the same bullet was depicted in both photos based on distinctive marks and scratches visible on the bullet in the enlargement photos. While defense counsel cross-examined all of the witnesses about the quality and accuracy of the bullet photos and was able to raise questions as to their evidentiary value, he did not present a photographic expert to challenge the photographs or a tool mark expert to challenge the comparison made by Garland.
On direct appeal, Parker raised two claims related to the bullet evidence. First, he claimed that the trial court erred by letting the State introduce into evidence new photographs of the bullet that were different in color from the original prints. Parker, 641 So.2d at 374. This Court concluded that the trial court conducted an adequate hearing under Richardson v. State, 246 So. 2d 771 (Fla.1971), as to these photographs and properly found that this was an inadvertent discovery violation and that Parker had suffered no prejudice because he knew about the color variation in the photographs. This Court also concluded that Parker had not demonstrated reversible error regarding this issue. Parker, 641 So.2d at 374. The second claim was not directed at the bullet evidence, but involved it tangentially. Parker claimed that the trial court had ignored his complaints about counsel's competency. Id. In explaining the context of this claim, this Court quoted from an exchange between Parker and the trial court involving the bullet evidence. This exchange took place just prior to jury selection. Id. at 374 n. 6. Parker complained that counsel had not asked the court for a special investigation regarding the bullet evidence based on the changed testimony of the medical examiner about the color of the bullet. Parker complained that the police force and state attorney should not be investigating the bullet evidence when the evidence might prove that the police actually killed the victim. The judge told Parker to put his complaints in writing and send them to whomever he thought could help him. Based on Parker's comments, counsel asked the court for a continuance to allow an independent investigation of the bullet evidence and of how the case had been handled by the police and the state attorney. The court denied the requested continuance. Id. This Court found no merit to Parker's overarching claim because Parker "was complaining about the criminal justice system, not about his counsel's abilities as an advocate" and because he never requested substitute counsel. Id. at 375.
In his postconviction motion, Parker alleged that trial counsel should have presented expert testimony in photography and tool-marking to demonstrate that the color of the photographs depicting the bullet lodged in the victim's lower spine was subject to manipulation and did not necessarily reflect the true color of the bullet shown in the photographs. Parker also asserted that it could not be established with any certainty that the bullet *980 that killed the victim was the same bullet that was fired from Parker's gun.
Parker's claim of ineffective assistance of counsel at the guilt phase of trial is subject to the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Following Strickland, this Court has held that for ineffective assistance of counsel claims to be successful, two requirements must be satisfied:
First, the claimant must identify particular acts or omissions of the lawyer that are shown to be outside the broad range of reasonably competent performance under prevailing professional standards. Second, the clear, substantial deficiency shown must further be demonstrated to have so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined. A court considering a claim of ineffectiveness of counsel need not make a specific ruling on the performance component of the test when it is clear that the prejudice component is not satisfied.
Maxwell v. Wainwright, 490 So. 2d 927, 932 (Fla.1986) (citations omitted). Because both prongs of the Strickland test present mixed questions of law and fact, this Court employs a mixed standard of review, deferring to the circuit court's factual findings that are supported by competent, substantial evidence, but reviewing the circuit court's legal conclusions de novo. See Sochor v. State, 883 So. 2d 766, 771-72 (Fla. 2004). Where the denial of a postconviction claim follows an evidentiary hearing by the trial court, we afford deference to the trial court's factual findings. McLin v. State, 827 So. 2d 948, 954 n. 4 (Fla.2002). "As long as the trial court's findings are supported by competent substantial evidence, `this Court will not substitute its judgment for that of the trial court on questions of fact, likewise of the credibility of the witnesses as well as the weight to be given to the evidence by the trial court.'" Blanco v. State, 702 So. 2d 1250, 1252 (Fla. 1997) (quoting Demps v. State, 462 So. 2d 1074, 1075 (Fla.1984)).
In denying relief on this claim, the trial court stated that the sole credible issue as to Parker's guilt was "the origin of the bullet that killed the victim," noting that the issue at trial had not been what color the bullet was in a photograph, but what bullet actually killed the victim. The court also noted that the jury heard extensive evidence on this issue and ultimately determined that Parker had shot the victim. The jury rejected the defense's theories of evidence tampering, conspiracy, collusion, and cover-up regarding the bullet evidence. The court concluded that Parker had not presented a single witness to offer an opinion that the bullet that the jury determined killed the victim was not the bullet that came out of the victim's body and was placed in evidence. The court stated that nothing was presented at the evidentiary hearing to show that a photography expert could refute the trial testimony of Dr. Bell and Detective Cerat that the bullet in evidence was the fatal bullet taken from the victim at the autopsy. Thus, the court concluded that Parker had not proved deficient performance or prejudice as required by Strickland. We agree.
As the postconviction order notes, Parker did not present any evidence to undermine the resolution of this issue at trial. He did not present a witness who could refute the chain of custody testimony relating to the bullet. Dr. Bell and Detective Cerat both testified that the bullet in evidence is the same bullet that was removed from the victim's body, despite the color that is depicted in any of the photographs. Further, the jury heard Dr. Bell admit that he got the color of the bullet wrong and heard extensive questioning on *981 this issue. Thus, Parker has not proven how he was prejudiced by counsel's failure to present expert photography testimony. Additionally, while counsel made no effort to rebut the tool-marking testimony by Garland, Garland testified as a firearms expert that the lands and grooves on the bullet in evidence proved that it was shot from Parker's weapon. Parker cannot show prejudice on this point either without refuting the chain of custody of the bullet. Accordingly, we affirm the trial court's denial of relief on this claim.
FAIRNESS OF POSTCONVICTION EVIDENTIARY HEARING
Parker claims that he was denied a full and fair postconviction evidentiary hearing because the judge should have recused himself based on an alleged bias exhibited toward Parker and because Parker was not able to present evidence relevant to his claim of ineffective assistance at the guilt phase based on the court's exclusion of four witnesses. We address each aspect of this claim in turn below.
Judicial Bias
Parker's claim of judicial bias is premised on the security arrangements and physical limitations that the judge required during the evidentiary hearing. It is also premised on alleged racial bias exhibited by the judge. At the beginning of the evidentiary hearing, Parker's counsel objected to the security measures, which included Parker being seated in the jury box away from counsel table and being restrained with shackles and chains. The judge stated that these measures were necessary to insure the security of the courtroom, which he described as an "extremely insecure courtroom setting." The judge also stated that he was deferring to the deputy who was responsible for Parker's transportation that these measures were necessary. In order to facilitate communication between Parker and his counsel during the hearing, Parker was given a pen and paper to write down his comments or questions. Counsel also moved the defense table next to the jury box.
Later in the proceedings, the judge noted that there were people present in the courtroom whom he believed to be connected to Parker based on eye contact and body language between Parker and those individuals. The judge stated that "security issues jump to mind." Counsel explained that the African-American man seated behind counsel table was the investigator for Capital Collateral Regional Counsel and had no personal connection to Parker other than his professional investigation of the case.
Parker subsequently filed a motion to disqualify the judge, citing the security-related issues and the judge's concern over his dangerousness. Parker also cited the judge's conclusion that an African-American male seated near defense counsel made "security issues jump to mind." The judge denied the motion as legally insufficient. Parker claims that his due process rights were violated by the judge's denial of his motion to disqualify.
A motion to disqualify is governed substantively by section 38.10, Florida Statutes (2005), and procedurally by Florida Rule of Judicial Administration 2.330. See Cave v. State, 660 So. 2d 705, 707 (Fla.1995).[5] The rule provides that a motion to disqualify shall show that "the *982 party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge" or that the judge is either an interested party to the matter, related to an interested party, related to the counsel, or "is a material witness for or against one of the parties to the cause." Fla. R. Jud. Admin. 2.330(d). The standard of review of a trial judge's determination on a motion to disqualify is de novo. Chamberlain v. State, 881 So. 2d 1087, 1097 (Fla.2004). Whether the motion is legally sufficient is a question of law. Barnhill v. State, 834 So. 2d 836, 843 (Fla.2002).
In ruling on a motion to disqualify, a court is limited to determining the legal sufficiency of the motion itself and may not pass on the truth of the facts alleged. Fla. R. Jud. Admin. 2.330(f); see also MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332, 1339 (Fla.1990). The term "legal sufficiency" encompasses more than mere technical compliance with the rule and the statute. The standard for viewing the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge. See Fla. R. Jud. Admin. 2.330(d)(1). Further, this fear of judicial bias must be objectively reasonable. See State v. Shaw, 643 So. 2d 1163, 1164 (Fla. 4th DCA 1994). The subjective fear of a party seeking the disqualification of a judge is not sufficient. See Kowalski v. Boyles, 557 So. 2d 885 (Fla. 5th DCA 1990). Rather, the facts and reasons given for the disqualification of a judge must tend to show "the judge's undue bias, prejudice, or sympathy." Jackson v. State, 599 So. 2d 103, 107 (Fla.1992); see also Rivera v. State, 717 So. 2d 477, 480-81 (Fla.1998). Where the claim of judicial bias is based on very general and speculative assertions about the trial judge's attitudes, no relief is warranted. McCrae v. State, 510 So. 2d 874, 880 (Fla. 1987).
This is not a situation where the defendant was prejudiced by the jury viewing him in restraints, because this was a postconviction proceeding without a jury. The issue is whether the judge's heightened security measures and expressed concerns for the safety of those in the courtroom were an objective indicator of the judge's undue bias or prejudice toward Parker. The judge, who was the sentencing judge in Parker's trial, presided over Parker's postconviction proceeding in a courtroom in the civil division where the judge was currently assigned. The judge stated that the courtroom was extremely insecure and that he was deferring to the deputy who believed these measures were necessary. The defense did not challenge these statements, but instead indicated that the seating arrangement would hamper counsel's ability to communicate with Parker during the hearing. Based on this assertion, counsel was allowed to move counsel table close to the jury box where Parker was seated; Parker was given a pen and paper to communicate further with counsel; and counsel was allowed to stand next to the jury box during the proceedings when necessary. In addition, defense counsel and Parker were allowed private consultations during breaks in the proceedings. As to the judge's comments about "people in [the court room] that I don't know that I know are connected to [Parker] that [cause] security issues [to] jump to my mind," this was in the context of discussing the defense's renewed objection to the security measures imposed. The judge used the defense investigator as an example of the possible security risks in the insecure courtroom.
We do not find the judge's heightened concern for safety to be a legally sufficient basis for his recusal from Parker's case. *983 Thus, Parker is not entitled to relief on this claim.
Exclusion of Witnesses
Parker also claims that he was denied a fair evidentiary hearing because he was precluded from presenting testimony from four witnesses. The witnesses included medical examiner Dr. Bell, Detective Cerat who took the photographs of the bullet and was present at the autopsy conducted by the medical examiner, the trial prosecutor Michael Satz, and Dr. Ronald Wright. At the case management conference prior to the evidentiary hearing, the State moved to strike these witnesses, arguing that their testimony had no bearing on counsel's ineffectiveness in not obtaining experts in the fields of photography and tool marking. The State also argued that the issue of whether the bullet had been switched or the photographs manipulated had been fully litigated at trial. Parker's counsel argued that the testimony of Dr. Bell and Detective Cerat were relevant to proving prejudice from trial counsel's failure to present a photography expert to dispute the accuracy of the bullet photographs admitted at trial.[6] The trial court granted the State's motion to strike the witnesses.
We find that the trial court did not abuse its discretion in excluding these witnesses as their testimony was not relevant to the issue on remand, i.e., whether counsel rendered ineffective assistance for not obtaining and presenting testimony from experts in the fields of tool marking and photography. See Parker, 904 So.2d at 376. While the two excluded witnesses took the photographs in question, Parker never explained how their testimony would have a bearing on counsel's failure in this regard. Parker simply stated that the testimony of these witnesses was relevant to the prejudice prong, without further explanation. Moreover, in light of our resolution of Parker's claim of ineffective assistance regarding the bullet evidence, the testimony of these witnesses would only have changed the outcome of that claim had the witnesses recanted their trial testimony or admitted that they tampered with the bullet evidence. Parker ascribed no such relevancy to their testimony. Thus, we find no merit to Parker's claim that he was denied a full and fair evidentiary hearing by the trial court.
PENALTY PHASE INEFFECTIVE ASSISTANCE OF COUNSEL
Parker also claims that counsel provided ineffective assistance during the penalty phase of his trial for failing to investigate and present mitigating evidence relating to his mental health and his difficult childhood. The trial court denied relief on this claim, stating that it found "little difference between the penalty phase presentation at trial and the postconviction presentation." The court also found the testimony of the mental health experts who testified at the postconviction hearing was not credible. For the reasons explained below, we conclude that Parker has demonstrated both prongs of the Strickland standard for ineffective assistance of counsel during the penalty phase of trial and is entitled to a new penalty phase proceeding.
During the penalty phase, Parker's counsel presented five mitigation witnesses: two investigators who worked for the public defender's office, Parker's mother, Parker's accomplice in the robbery, and one mental health expert. These witnesses testified that Parker's childhood was chaotic and dysfunctional. His father abandoned the family when Parker was only a few months old; his mother was frequently hospitalized for serious mental *984 problems; he spent his childhood in a series of foster homes; he was physically and sexually abused; and he has a long history of alcohol abuse and violent behavior. The State criticized the penalty phase testimony of the investigators for not being first-hand knowledge and criticized the testimony of the mental health expert because he relied almost entirely on Parker's self-reported history and did not corroborate this information by interviewing collateral sources. In sentencing Parker to death, the trial court found no statutory or nonstatutory mitigators had been established. Parker, 641 So.2d at 377. The sentencing order found "nothing in the Defendant's character or record to be in mitigation" and found "[n]o mitigating circumstances, statutory or otherwise, apply to the Defendant."
Also important to Parker's claim of ineffective assistance by penalty phase counsel is the fact that on direct appeal this Court concluded that the evidence presented at the penalty phase was not enough to support the establishment of any nonstatutory mitigators. Id. We stated that the trial court "gave ample consideration to all of the evidence that Parker submitted in mitigation... but found that the facts alleged in mitigation were not supported by the evidence." Id. On postconviction appeal, however, we determined that Parker was entitled to an evidentiary hearing on this claim because it "appears that there is significant information that was never presented to the trial court which expounds upon both the abuse Parker suffered as a child and [his] mental infirmities." Parker, 904 So.2d at 378.
At the evidentiary hearing, Parker presented testimony from numerous witnesses about his background and childhood. These witnesses fleshed out the "bare bones" presented at the penalty phase proceeding and provided a stark picture of Parker's chaotic childhood: he was in and out of a series of foster homes; he had a bizarre and unpredictable life with a schizophrenic mother who was committed to mental hospitals repeatedly; he suffered physical and sexual abuse from his caretakers and from older children in the community; his education was disjointed because he attended over seventeen schools because he was moved from home to home; he has a poor academic record, a long history of substance abuse; and a record of violent and "crazy" behavior in school; Parker's father did not participate in his life, having abandoned Parker and his mother when Parker was an infant. Parker's trial counsel also testified that they had relied on the preliminary investigations by the public defender's investigators who discontinued their work when the case was reassigned from the public defender's office. Trial counsel admitted that they never requested school, employment, medical, or foster care records relating to Parker or medical records relating to his mother; nor were such background materials provided to the trial mental health expert. In fact, penalty phase counsel testified that he thought it was the doctor's responsibility to seek out this information. Counsel did not interview individuals other than Parker, his mother, and his ex-wife who could corroborate Parker's "horrific" childhood or background, even though this was the penalty phase defense strategy. Compare Burger v. Kemp, 483 U.S. 776, 794, 107 S. Ct. 3114, 97 L. Ed. 2d 638 (1987) (concluding that counsel's limited investigation was reasonable because he interviewed all witnesses brought to his attention, discovering little that was helpful and much that was harmful). The only investigator employed by Parker's trial counsel was asked to investigate the victim's background and guilt phase issues and never investigated anything related to Parker's background or family.
The ABA Guidelines provide that investigations into mitigating evidence "should *985 comprise efforts to discover all reasonably available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor." ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases 11.4.1(C), at 93 (1989). Among the topics that counsel should consider presenting in mitigation are the defendant's medical history, educational history, employment and training history, family and social history, prior adult and juvenile correctional experience, and religious and cultural influences. Id. 11.8.6, at 133. While trial counsel presented a "bare bones" rendition of some of these areas, it was not enough to establish mitigation even though there was a wealth of witnesses who were never interviewed and documents that were never sought that could have fleshed out and established the mitigating circumstances. The only investigation initiated by Parker's trial counsel was limited to the victim's background and possible guilt phase issues. In addition to this failure to conduct an adequate investigation, Parker's counsel presented the information about his childhood and background through the hearsay testimony of the public defender investigators and not from first-hand sources.
The evidentiary hearing testimony of the mental health experts also establishes that counsel was ineffective in presenting mental health mitigating evidence during the penalty phase. Clinical psychologist Dr. Glenn Caddy, who also testified at Parker's penalty phase as a mental health expert, testified that he was given "quite sparse materials" related to Parker, and received no background records from counsel.[7] Prior to his postconviction testimony, Dr. Caddy reviewed two volumes of documents relating to Parker. While Dr. Caddy testified that he would not have changed his opinion as to the statutory mental mitigators based on these new background materials, he did change his opinion as to the severity of Parker's mental and emotional impairment, which could have constituted nonstatutory mitigation. Further, he stated that had he known about the severity of the mother's mental illness and her medical history, he would have conducted a more thorough evaluation of this issue. He also testified that had he seen Parker's school records indicating significant behavioral and intellectual functioning problems, he would have recommended further evaluation and testing.
Three other mental health experts testified at the postconviction hearing. These experts testified that Parker suffers from some level of neuropsychological impairment in his executive functioning ability, suffers from the effects of long-standing psychological deficits, and has a long history of behavioral disorders, and that his alcohol consumption exacerbates these problems. All three of the postconviction experts opined that the two statutory mental mitigators are applicable to Parker. The trial court discounted these opinions as "not credible." However, even if we discount the opinions of the postconviction mental health experts as to the applicability of the statutory mental mitigators, these three experts presented uncontroverted evidence that Parker has some type of neuropsychological impairment that affects his executive brain functions. This was never presented at the penalty phase and would qualify as nonstatutory mitigation.
In summary, had all of these facts been fleshed out or properly presented at the penalty phase, the trial court's finding of *986 no mitigation would not have been supported by the record. Accordingly, we conclude that Parker has met his burden under Strickland that counsel's performance as to mitigation evidence was deficient and that he was prejudiced by the deficient performance. Thus, he is entitled to a new penalty phase proceeding where a jury is presented with the available mitigating evidence and weighs it in the sentencing calculus.
CONCLUSION
Accordingly, we affirm in part and reverse in part the trial court's order denying postconviction relief. We remand this cause to the trial court for a new penalty phase proceeding before a jury.
It is so ordered.
QUINCE, C.J., PARIENTE and LEWIS, JJ., and ANSTEAD, Senior Justice, concur.
CANADY and POLSTON, JJ., did not participate.
WELLS, J., concurs in result only.
NOTES
[1] Parker argued that: (1) the trial court erred in denying his challenges for cause to sixteen prospective jurors, four of whom served on the jury; (2) the trial court erred by requiring the parties to exercise their peremptory challenges simultaneously in writing; (3) three discovery violations occurred; (4) the trial court ignored his complaints about counsel's competency; (5) three errors occurred relating to guilt phase instructions; (6) there was improper closing argument by the State; (7) Parker was absent during a hearing on the State's petition to issue an order to show cause for one of the robbery victims who failed to appear; (8) a killing during flight from the commission of a felony is not felony murder; (9) the trial court erred in denying Parker's motion for a new trial based on a newly discovered witness who saw a deputy, and not Parker, shoot the victim; (10) the court erred in refusing to give Parker's requested special penalty phase instructions; (11) the prosecutor made improper comments during penalty phase closing argument; (12) the trial court relied on nonstatutory aggravators; (13) the great risk and avoid arrest aggravators were not supported by the evidence; (14) the trial court erred in its consideration of the mitigating evidence; (15) Parker's death sentence is disproportionate; and (16) Florida's capital sentencing scheme is unconstitutional.
[2] Huff v. State, 622 So. 2d 982 (Fla. 1993).
[3] Parker asked this Court to determine whether: (1) the trial court erred by summarily denying his claims of ineffective assistance of guilt and penalty phase counsel; (2) the trial court improperly denied him access to public records; (3) the trial court's denial of his claims of ineffectiveness of counsel regarding juror misconduct and the rule prohibiting juror interviews was proper; (4) his claim of ineffectiveness of counsel relating to voir dire examination of jurors was properly denied; (5) counsel was ineffective for failing to preserve for appeal a claim of systematic discrimination in the selection of the jury; (6) the trial court properly denied his claim of ineffective assistance of counsel regarding the penalty phase instructions; (7) counsel was ineffective in failing to prove that the claim of a Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985), violation was improperly denied; (8) his death penalty sentence is disproportionate to the crime for which he was convicted; (9) his sentence of death is being exacted pursuant to a pattern and practice to discriminate on the basis of race in the administration of the death penalty; (10) counsel was ineffective in providing the jury with adequate guidance concerning the aggravating circumstances instructions; (11) Florida's capital sentencing statute is constitutional; (12) execution by electrocution or lethal injection is constitutional; (13) the combination of all errors deprived him of a fair trial; and (14) he is insane and cannot be executed. We did not address issues 5, 7, 9, and 11 because they were "bare-bones conclusory allegations." Parker, 904 So.2d at 375 n. 3. We found issues 4, 6, 8, and 10 to be procedurally barred because they were raised on direct appeal. Id. We affirmed the denial of postconviction relief on issues 2, 3, 12, 13, and 14. Id. at 375.
[4] Parker argued that appellate counsel was ineffective for failing to raise the following issues on direct appeal: (1) the trial court's denial of his motion to disqualify the prosecutor based upon the prosecutor being a witness to the medical examiner's alleged realization that he had made a mistake regarding the appearance of the bullet removed from the victim; (2) the penalty phase testimony of three witnesses resulted in relitigating the guilt phase issues, was irrelevant to the great risk aggravator, and constituted unconstitutional nonstatutory aggravating factors; (3) his absence during the suppression hearing; and (4) the lack of a specific charge against him because the State was permitted to prosecute him for both premeditated and felony murder. Parker also raised a number of challenges to his death sentence based on the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). Parker, 904 So.2d at 381-83.
[5] The rule governing the disqualification of trial judges was previously numbered Florida Rule of Judicial Administration 2.160. It was renumbered as 2.330 in September 2006. See In re Amendments to the Fla. Rules of Judicial Admin.Reorganization of the Rules, 939 So. 2d 966 (Fla.2006). Thus, the discussions in the pre-2006 cases cited refer to the previous numbering of the rule.
[6] Parker's postconviction counsel admitted that she did not intend to call the prosecutor as a witness at the hearing. Counsel offered no argument or explanation as to Dr. Wright.
[7] In fact, the State was able to disparage Dr. Caddy's trial testimony by eliciting that almost all of his information came from self-reports by Parker and a thirty-minute telephone conversation with Parker's mother. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598168/ | 3 So. 3d 391 (2009)
John J. McDOUGALL, as Sheriff of Lee County, Florida, Appointing Authority of the Lee County Civil Service Board, and John J. McDougall, as Sheriff of Lee County, Florida, Appointing Authority of an unnamed ad hoc disciplinary committee of The Office of the Sheriff of Lee County, Appellants/Cross-Appellees,
v.
Frances C. CULVER, Richard P. Snyder, Stephen A. Humfleet, Linda Kress, Matthew R. Leclair, Scott W. Massingill, Robert Wardrop, and All Others Similarly Situated, Appellees/Cross-Appellants.
No. 2D07-5490.
District Court of Appeal of Florida, Second District.
January 16, 2009.
V. Stephen Cohen and Shane B. Vogt of Williams, Schifino, Mangione & Steady, P.A., Tampa, for Appellants/Cross-Appellees.
Richard G. Groff and Warren A. Pies of Dye, Deitrich, Petruff & St. Paul, P.L., Bradenton, for Appellees/Cross-Appellants.
WHATLEY, Judge.
John J. McDougall, as Sheriff of Lee County, appeals a final judgment finding that his office violated the Florida Sunshine Law, § 286.011, Fla. Stat. (1999), while conducting internal affairs (IA) investigations of deputies employed by his office. The deputies, Frances C. Culver, Richard P. Snyder, Stephen A. Humfleet, Linda Kress, Matthew R. Leclair, Scott W. Massingill, and Robert Wardrop, filed a cross-appeal arguing that the trial court erred in entering summary judgment in favor of the Sheriff's Office as to their *392 claim for damages. We conclude that the IA investigation procedures used by the Sheriff's Office did not violate the Sunshine Law and reverse.
The trial court conducted a bench trial and issued a final judgment containing the following findings of fact. In connection with IA investigations of the deputies, IA officials made findings and recommendations concerning each of the deputies and incorporated those findings and recommendations in written memoranda. The memoranda were given to the deputies' commanding officers, who then forwarded the memoranda to senior officials in the Sheriff's Office for their review and comments. The memoranda were then given to McDougall and McDougall made the final decision regarding the appropriate disciplinary action. Thereafter, McDougall gave written notice of his decision to the deputies, which action concluded the investigations. The memoranda were not made public until the IA investigations were concluded.
In the final judgment, the trial court ruled that the circulation of the memoranda from the senior officials in the Sheriff's Office to McDougall constituted a "meeting" under the Sunshine Law, and therefore, the failure of the Sheriff's Office to make the memoranda public during the IA investigations was a violation of the Sunshine Law. We conclude that the record supports the trial court's factual findings; however, we hold that the memoranda did not constitute a meeting of a "board" or "commission," and therefore, the Sheriff's Office did not violate the Sunshine Law. See Liner v. Workers Temp. Staffing, Inc., 990 So. 2d 473, 476 (Fla.2008) ("We review the statutory interpretation conducted by the trial court to reach this ultimate ruling de novo, while we defer to those factual findings of the trial court that are supported by competent, substantial evidence from the record.").
Section 286.011(1) provides as follows:
All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting.
The present case is similar to Jordan v. Jenne, 938 So. 2d 526, 527-28 (Fla. 4th DCA 2006), in which a group was responsible for reviewing investigative reports involving deputies with the Broward County Sheriff's Office and making a recommendation. After such recommendations were made, the deputy was then entitled to a pre-disciplinary conference where the deputy could present evidence. Id. at 528. Following the conference, the captain of the hearing made a recommendation to the inspector general. Id. The inspector general, a non-voting member of the group, made the determination on final discipline. Id.
The Fourth District stated that because the group
provided only a mere recommendation to the inspector general and did not deliberate with the inspector general, the ultimate authority on termination, we conclude that the [group] does not exercise decision-making authority so as to constitute a "board" or "commission" within the meaning of section 286.011, and as a result, its meetings are not subject to the Sunshine Act.
Id. at 530.
This court has also held that meetings between an executive officer and his consultants, *393 advisors, staff or personnel, which are held for the purpose of fact-finding to help him in the execution of his duties are not meetings as contemplated by the Sunshine Law. Bennett v. Warden, 333 So. 2d 97, 99 (Fla. 2d DCA 1976). Bennett involved meetings in which the president of St. Petersburg Junior College and a group of employees, who were representatives of career employees at the college, discussed suggestions and problems relating to working conditions, wages, and hours. Id. at 98. This court held that such meetings did not violate the Sunshine Law. Id.
Similarly, in Knox v. District School Board of Brevard, 821 So. 2d 311, 312-13 (Fla. 5th DCA 2002), an area superintendent with the school board met with a group of five school board employees and interviewed candidates for a principal's position. Based on input from the group, she recommended two applicants to the school board superintendent, but all of the applicants' names were given to the superintendent. Id. at 313. The Fifth District held, "A Sunshine violation does not occur when a governmental executive uses staff for a fact-finding and advisory function in fulfilling his or her duties." Id. at 315; see also Molina v. City of Miami, 837 So. 2d 462, 463 (Fla. 3d DCA 2002) (holding that meetings of the Discharge of Firearms Review Committee were not subject to Sunshine Law where committee makes factual findings and passes those findings on to chief of police).
In the present case, the memoranda were reviewed by senior officials in the Sheriff's Office, who could write comments on the memoranda, and the Sheriff then reviewed the memoranda. However, the Sheriff alone made the final decision regarding the appropriate disciplinary action. As was the case in Bennett, Jordan, Knox, and Molina, the senior officials provided only a recommendation to the Sheriff but they did not deliberate with him nor did they have decision-making authority. Therefore, we conclude that the use of the memoranda did not violate the Sunshine Law. Cf. Dascott v. Palm Beach County, 877 So. 2d 8, 12 (Fla. 4th DCA 2004) (holding that pre-termination panel was a "board" pursuant to the Sunshine Law because it exercised decision-making authority).
Further, because the memoranda were related to an IA investigation, they were confidential. Section 112.533(2)(a), Florida Statutes (2008), discusses IA investigations and states as follows:
A complaint filed against a law enforcement officer or correctional officer with a law enforcement agency or correctional agency and all information obtained pursuant to the investigation by the agency of such complaint shall be confidential and exempt from the provisions of s. 119.07(1) until the investigation ceases to be active, or until the agency head or the agency head's designee provides written notice to the officer who is the subject of the complaint. . . .
In this case, the memoranda were confidential until the IA investigations were concluded.
Accordingly, the trial court erred in ruling that McDougall, as Sheriff of Lee County, violated the Florida Sunshine Law in failing to make public the memoranda until the IA investigations were concluded, and we reverse the final judgment. Because the final judgment is reversed, the cross-appeal regarding damages is moot.
Reversed.
STRINGER, J., and WILLIAMS, CHARLES E., Associate Judge, Concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1027272/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4627
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NATHAN E. SCOTT,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, Chief District
Judge. (2:07-cr-01225-DCN-1)
Submitted: November 17, 2008 Decided: December 5, 2008
Before TRAXLER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
J. Robert Haley, Assistant Federal Public Defender, Charleston,
South Carolina, for Appellant. Michael Rhett DeHart, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Nathan E. Scott appeals the twenty-seven month
sentence the district court imposed after he pled guilty to
failing to register as a sex offender, in violation of 18 U.S.C.
§ 2250(a) (2006). Counsel submitted a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), averring there are no
meritorious issues for appeal, but suggesting this court should
consider whether: (1) the district court erred in denying Scott
a downward adjustment to his sentence based upon his acceptance
of responsibility and (2) whether the sentence is reasonable.
Scott was informed of his right to file a pro se supplemental
brief but has not filed a brief. We have carefully reviewed the
record in this case and conclude there is no reversible error.
Accordingly, for the reasons set forth below, we affirm the
district court’s judgment.
After he pled guilty, Scott violated the conditions of
his pretrial release by: (1) testing positive for the use of
cocaine on two occasions; (2) failing to report for required
drug testing on two occasions; and (3) failing to abide by the
requirements of electronic monitoring and home detention on
several occasions. Accordingly, Scott’s bond was revoked prior
to sentencing. At the sentencing hearing, counsel objected to
the lack of a downward adjustment for acceptance of
responsibility, pursuant to U.S. Sentencing Guidelines Manual
2
(“USSG”) § 3E1.1, while acknowledging that “the revocation of
[Scott’s] bond allows [the court] to take away [the adjustment
for] acceptance of responsibility.” Counsel argued that Scott
was, nevertheless, entitled to the adjustment because his
violations of pretrial release conditions were the result of his
addiction to cocaine and his residence in a remote rural area
without access to reliable transportation. The district court
overruled Scott’s objection, finding that Scott’s failures to
report for drug testing and violations of electronic monitoring
did not result from his addiction.
Under USSG § 3E1.1, a defendant may receive a
reduction in offense level by clearly demonstrating acceptance
of responsibility for the offense. We review for abuse of
discretion a district court’s denial of an adjustment based upon
acceptance of responsibility, and have held that a court may
deny the adjustment due to criminal conduct while on pretrial
release. See United States v. Kidd, 12 F.3d 30, 34 (4th Cir.
1993). Accordingly, the district court did not abuse its
discretion in denying Scott’s objection due to his violations of
the conditions of pretrial release.
We will affirm a sentence imposed by the district
court if it is within the statutorily prescribed range and
reasonable. United States v. Hughes, 401 F.3d 540 (4th Cir.
2005). We review Scott’s sentence under a deferential abuse of
3
discretion standard. See Gall v. United States, 128 S. Ct. 586,
590 (2007). The first step in this review requires us to ensure
that the district court committed no significant procedural
error, such as improperly calculating the guidelines range.
United States v. Osborne, 514 F.3d 377, 387 (4th Cir.), cert.
denied, 128 S. Ct. 2525 (2008). In assessing a sentencing
court’s application of the guidelines, we review the court’s
legal conclusions de novo and its factual findings for clear
error. United States v. Allen, 446 F.3d 522, 527 (4th Cir.
2006). The court then considers the substantive reasonableness
of the sentence imposed, taking into account the totality of the
circumstances. Gall, 128 S. Ct. at 597. We presume that a
sentence within a properly calculated guidelines range is
reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir.
2007).
The district court properly calculated the advisory
guidelines range of imprisonment, permitted counsel and Scott to
speak, and gave reasons for overruling Scott’s objection that he
was entitled to a downward adjustment. The sentence was within
the guidelines range of imprisonment and is presumptively
reasonable.
Because there was no error in the application of the
Sentencing Guidelines and the district court stated that it
4
considered the 18 U.S.C. § 3553(a) (2006) factors, the sentence
is reasonable.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform Scott, in writing, of the right to
petition the Supreme Court of the United States for further
review. If Scott requests that a petition be filed, but counsel
believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Scott.
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/1027274/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1885
WINFRED HOWARD,
Plaintiff - Appellant,
v.
INOVA HEALTH CARE SERVICES, d/b/a INOVA Health System,
Defendant - Appellee.
No. 07-2035
WINFRED HOWARD,
Plaintiff - Appellant,
v.
INOVA HEALTH CARE SERVICES, d/b/a INOVA Health System,
Defendant - Appellee.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge; Gerald Bruce Lee, District Judge. (1:06-cv-
00976-CMH; 1:07-cv-00647-GBL)
Argued: October 28, 2008 Decided: December 5, 2008
Before MOTZ, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Nils George Peterson, Jr., Arlington, Virginia, for Appellant.
William Boyle Porter, BLANKINGSHIP & KEITH, P.C., Fairfax,
Virginia, for Appellee.
_______________
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
On August 24, 2006, Winfred Howard sued his employer, Inova
Health Care Services, asserting interference and retaliation
claims under the Family and Medical Leave Act (“FMLA”), 29
U.S.C. § 2601 et seq. After Inova moved for summary judgment,
Howard moved to dismiss his complaint without prejudice or, in
the alternative, to amend his petition to add a claim under the
Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et
seq. The district court denied Howard’s motion and granted
summary judgment in favor of Inova, finding that Inova had not
violated the FMLA in disciplining Howard, transferring him to an
alternate position, or terminating his employment. The court
also found that Howard had failed to make a prima facie showing
of retaliation. On July 3, 2007, Howard filed a second suit
against Inova, asserting an ADA claim based on the same events
that formed the basis for his FMLA claims. The district court
in that case granted Inova’s 12(b)(6) motion to dismiss Howard’s
complaint on the basis of res judicata. Howard now appeals the
judgments of the district courts. For the reasons that follow,
we affirm.
3
I.
Howard first began working for Inova as an operating room
(“OR”) technician in 1993. In the fall of 1996, Howard informed
Inova that he had been diagnosed with posttraumatic stress
disorder (“PTSD”), triggered by exposure to blood or bodily
fluids or the smell of burning flesh. He asked to be removed
from his position for fear of endangering patients. Howard
began using full-time and intermittent leave under the FMLA to
address his PTSD and eventually was transferred to a supply and
resource coordinator position that did not involve OR work.
Howard left Inova in 1997 and was unemployed for four
years. In 2000, he sued Inova, alleging an ADA violation.
While the lawsuit was pending, Inova rehired Howard in 2001 as a
patient service coordinator, and the lawsuit was dismissed.
Upon his reemployment, Howard was given access to Inova’s
employee booklet and FMLA policies.
On February 14, 2002, Howard was involved in a car accident
and injured his back. He requested and was approved for 28 days
of FMLA leave. He provided Inova with physicians’ notes
certifying that he was unable to attend work from February 14 to
19, 2002; February 27 to March 14, 2002; April 9 to 16, 2002;
and April 19 to 26, 2002. J.A. 597–602. Howard was involved in
a second car accident on November 26, 2002. He submitted
4
physicians’ notes certifying that he should work reduced hours
with certain restrictions on physical activity from December 7
to 21, 2002; December 18, 2002 to January 10, 2003; and January
11, 2003 to February 22, 2003. J.A. 606–09. He also submitted
a physician certification in May 2003 stating that he needed to
work reduced hours for an unknown period. J.A. 610–12. Inova
approved a reduced work schedule for Howard, but he eventually
returned to a full-time schedule in 2003 or 2004. See J.A. 301.
In 2005, Howard was verbally disciplined by his supervisor,
Julie Quick, for “absenteeism and tardiness,” and written
documentation of the discipline was placed in his file. J.A.
104, 621. Quick explained that Howard had failed to report for
work on February 2 to 7, 2005 and March 1 to 2, 2005; that he
had left work early on February 9, 23, and 25, 2005; and that he
was late on February 11, 14, and 18, 2005. Id. Howard asserted
that he missed these days of work due to his back problems.
J.A. 333–38. Quick provided Howard with FMLA forms for his
doctors to certify that these absences were related to medical
issues. If Howard could submit proper physician certification
of these absences, Quick would withdraw documentation of the
verbal warning from Howard’s file.
On April 15, 2005, Howard called in sick. On April 18,
2005, Quick gave Howard a written warning, noting that his April
5
15, 2005 absence was the ninth unexcused absence in three
months. Again, Quick provided Howard with FMLA forms and said
she would withdraw both the verbal and written warnings if he
could provide physician certification for his absences.
Howard met with Quick and Tom Williams, an Inova HR
representative, on April 28, 2005. Howard had not yet provided
FMLA documentation to excuse his absences. Quick and Williams
explained the forms to Howard and informed him that his failure
to return them could be grounds for termination. J.A. 385–86.
On May 4, 2005, Howard submitted a “Certification of Health Care
Provider” that a physician had signed on March 29, 2005. See
J.A. 623–25. Because the certification did not provide the
physician’s name or contact information and was evidently filled
out by two different people, Williams met with Howard and told
him that the certification was insufficient to excuse Howard’s
absences. 1 On May 6, 2005, Williams wrote Howard, explaining
that Inova had no FMLA paperwork for Howard for the last two
1
The physician’s signature and the written response stating
the “medical facts which support [the physician’s]
certification” were in one person’s handwriting. J.A. 623. The
rest of the form, which stated that Howard needed to work a
reduced schedule for an unknown duration of time, was written in
another person’s handwriting. Howard admitted that he filled
out most of the form and asserted in his deposition that his
physician, Dr. Rodney Dade, authorized him to do so. In a
deposition, Dr. Dade testified that he had not authorized Howard
to fill out the form. J.A. 1623–29.
6
years. Williams’s letter set a May 13, 2005 deadline for Howard
to provide physician certification for his absences. Howard did
not submit a complete certification from Dr. Rodney Dade until
May 31, 2005. The certification stated that Howard had lower
back pain that required a reduced work schedule for a period of
six to eight months. Inova approved a reduced work schedule for
Howard based on this certification on June 1, 2005.
On June 13, 2005, Quick met with Howard and informed him
that he would be transferred from the Surgical Business office
to the Unit Management office to work in a supply distribution
tech position. A letter from Quick to Howard memorializing
their meeting stated that the new position would better
accommodate his intermittent schedule and that Howard would work
in the Unit Management office, “reorganizing and labeling;
entering data for scrub users; [and] placing supplies . . . in
proper locations,” for the duration of his approved reduced work
schedule. J.A. 116, 642, 1485. The letter asked Howard to
start in his new position on June 15, 2005. Id.
Howard testified in his deposition that during the meeting
he told Quick that he should not work near the OR because he
needed to avoid exposure to blood. He did not report for work
in the new supply distribution tech position until June 23,
2005. When he appeared for work, he presented a note from Dr.
7
George H. Lawrence, a psychologist, stating that Howard “has
been suffering from debilitating stress and therefore unable to
work from Wednesday, June 15th.” J.A. 126; see also J.A. 420.
The note stated that Howard was “fit to return to duty” on June
23, 2005 and should “avoid unnecessary stress.” Id. at 126
On June 27, 2005, Howard filed an EEOC charge of
discrimination against Inova, alleging an ADA claim. On the
same day, Quick and Williams met with Howard and requested FMLA
paperwork to certify the “debilitating stress” condition that
Dr. Lawrence had identified. See J.A. 436. They provided
Howard with the necessary forms and asked him to return them by
July 13, 2005, which he did not. In the meantime he worked as a
supply distribution tech, performing duties in and around the
OR. He testified that while he worked in this position, he had
four or five dissociative episodes related to his PTSD, only one
of which he told Quick about. See J.A. 432–34. On July 12,
2005, Roxanne Kavros, one of Howard’s old supervisors from his
previous tenure with Inova, met with Williams to express her
concern that she had seen Howard in and around the OR. She
mentioned that she had supervised him in 1998 when he
transferred from an OR tech position into a supply tech position
8
because of his PTSD. 2 She was worried that “because of changes
in the design of the OR department he may currently be passing
by OR rooms and seeing patients or blood products.” J.A. 1492.
Howard met with Williams again on July 20, 2005. During
this meeting, Williams gave Howard another week to submit FMLA
certification for the “debilitating stress” that Dr. Lawrence
had diagnosed. Howard did not submit the paperwork. On the
same day, Howard met with Quick, Williams, and other HR
employees to discuss his concern that his current position was
exposing him to blood. After the meeting, he was assigned to
another position in the Unit Management office to perform data
entry and began work in this position on July 21, 2005. 3
2
The record contains some discrepancies as to when Howard
first left Inova. Howard testified that he left Inova in July
of 1997. J.A. 209.
3
The record contains conflicting evidence as to what duties
Howard performed in his new position. Williams’s personal notes
reflect that on August 4, 2005, Julie Quick asked Howard to
“clean out a break room of supplies,” but that Howard refused to
do so unless the request was put in writing. J.A. 1493.
Despite further negotiations between Quick and Howard,
Williams’s notes state that Howard continued to refuse to
perform any duties in response to verbal requests. Howard’s
brief states that he was “required to clean out a storage room
that had not been cleaned in years” and that this room
“contained materials that exacerbated his PTSD.” Petitioner’s
Br. at 13–14. In his deposition, Howard testified that Inova
“moved [him] to a warehouse position where [he] worked by
[him]self . . . to clean out a warehouse which [he] was told by
a personnel that worked in perioperative service no one had been
in from anywhere from five to six years.” J.A. 448. The tasks
9
On August 10, 2005, Howard submitted an FMLA form
requesting full-time leave from August 11 to 26, 2005. J.A.
653. Accompanying the form was a “Certification of Health Care
Provider” from Dr. Lawrence stating that Howard was “suffering
from seizure disorder and PTSD.” J.A. 128, 654. The form
further stated that Howard “is at risk for seizure or possible
self harm” and “needs fulltime leave.” Id. at 128–29, 654–55.
Williams approved Howard’s leave on August 15, 2005.
On August 17, 2005, Williams sent Howard a letter
confirming that Howard would return to work on August 29, 2005,
the first business day after his approved leave would end. J.A.
132–33, 659-60. The letter also asked Howard to contact the
health care providers who had completed Howard’s most recent
FMLA paperwork. Williams wanted the physicians to review a
proposed job description of the position that Howard would
assume after returning to work. The letter also asked the
physicians to provide information about whether Howard would
require a reduced work schedule; whether Howard would experience
episodes of incapacity due to his health; and whether Howard
would be able to perform the proposed job duties. Id.
of cleaning the “break room,” “storage room,” and “warehouse”
appear to be the same. The record is unclear whether Howard
actually performed this task.
10
On August 23, 2005, Howard sent a letter to the Department
of Labor, Wage & Hour Division to file an FMLA complaint against
Inova for “discriminat[ing] and retaliat[ing] against me by
overriding a position that was accommodating me for my
disability.” 4 J.A. 676-77.
On August 26, 2005, an Inova HR Coordinator sent Howard
another letter confirming approval for his leave from August 11
to 26, 2005. J.A. 152–53. The letter also stated that Howard
was “required to present a ‘fitness-for-duty’ certificate from
[his] health care provider, prior to [his] return to work.” Id.
at 152. Howard testified that he understood this letter to
request a “fitness for duty certification from [his] doctor that
provided support that [he was] ready to come back to work
medically.” J.A. 485. By September 8, 2005, however, Howard
had not submitted a fitness-for-duty certification and had not
reported for work. Id. at 484. On that day, Williams wrote
Howard to remind him that Williams had not received the
information requested in his August 17, 2005 letter. J.A. 154.
Williams also informed Howard that because Howard had not
returned to work as expected, Inova required “updated Family
4
The DOL ultimately concluded that Inova had violated the
FMLA when it transferred Howard to the supply distribution tech
position and eventually terminated his employment. See J.A.
1154–68, 1195–96.
11
Medical Leave paperwork from both of your Health Care Providers
by Monday, September 19, 2005.” Id. Williams warned Howard
that “[f]ailure to clarify [Howard’s] employment status with us
. . . will be considered job abandonment and grounds for
termination.” Id. Howard did not provide the requested
information. J.A. 486.
At Howard’s request, Dr. Lawrence wrote to Williams on
September 15, 2005. His letter explained that Howard “continues
to experience occasional stress-induced seizures and
dissociative episodes” and “needs evaluation and treatment by a
neurologist,” for which “reasonable time away from his work” was
required. J.A. 158. Dr. Lawrence stated that Howard “can soon
begin to function effectively again as a Patient Coordinator or
in some similar position. . . . [I]f he is treated with respect
and consideration and allowed to return to appropriate work
around the end of this month, part time at first, he will be a
productive and above average . . . employee.” Id.
On September 28, 2005, Howard faxed Quick a letter
informing her that he intended to return to work on October 3,
2005. J.A. 159. Williams contacted Howard that same day and
confirmed receipt of Dr. Lawrence’s September 15, 2005 letter,
but reminded Howard that he still needed to provide FMLA
paperwork from Dr. Lawrence and any other physician currently
12
treating him for his medical conditions “before [he] return[s]
to work.” J.A. 161. Williams requested the paperwork by
October 7, 2005.
Howard did not return to work on October 3, 2005 as he had
indicated to Quick. He faxed a letter to Williams on October 7,
2005, asking for more time to complete the FMLA certifications.
J.A. 165. On October 17, 2005, Howard had neither returned to
work nor submitted any of the requested FMLA certifications. On
that day, Inova’s Assistant Director for Human Resources wrote
to Howard and informed him that “due to the fact that we have
not received any requested documentation to support your leave,
your employment has been terminated effective immediately.”
J.A. 166.
Howard sued Inova Health Care Services on August 24, 2006,
asserting interference and retaliation claims under the FMLA.
The district court granted summary judgment in favor of Inova
and denied Howard’s motion to dismiss his complaint without
prejudice or, in the alternative, to amend his petition to add
an ADA claim. On July 3, 2007, Howard filed a second suit
against Inova, alleging that Inova had violated the ADA by
discriminating and retaliating against him based on his PTSD.
The district court granted Inova’s 12(b)(6) motion to dismiss
13
Howard’s second complaint on the basis of res judicata. Howard
now appeals the judgments of the district courts.
II.
Howard appeals the district court’s opinion granting
summary judgment on both his interference and retaliation claims
under the FMLA. Our review of the district court’s grant of
summary judgment is de novo. Jennings v. Univ. of N.C., 482
F.3d 686, 694 (4th Cir. 2007) (en banc) (citing Hill v. Lockheed
Martin Logistics Mgmt., Inc., 354 F.3d 277, 283 (4th Cir. 2004)
(en banc)).
A.
In his interference claim, Howard asserts on appeal that
Inova violated the FMLA by transferring him to an alternate
position, disciplining him for unexcused absences, and
terminating his employment. These claims are addressed
separately below.
1.
Howard argues that his transfer from a billing position in
the Surgical Posting office into a supply distribution tech
position in the Unit Management office violated the FMLA because
it worked a hardship on him in violation of 29 C.F.R. §
825.204(d). Under 29 C.F.R. § 825.204(a), an employer may
14
transfer an employee “temporarily, during the period the
intermittent or reduced leave schedule is required, to an
available alternative position for which the employee is
qualified and which better accommodates recurring periods of
leave than does the employee’s regular position.” The “employer
may not transfer the employee to an alternative position in
order to discourage the employee from taking leave or otherwise
work a hardship on the employee.” 29 C.F.R. § 825.204(d).
Howard contends that the district court ignored the DOL’s
investigative finding that Inova had violated the FMLA when it
transferred Howard. Howard further argues that his transfer
from the billing position into the supply distribution tech
position was unnecessary because “Inova filled Howard’s billing
office position with hours from existing employees who were
asked to work overtime.” Petitioner’s Br. at 11. In addition,
Howard asserts that Inova “ignored the limitations noted in its
own health file that Howard was restricted to work in the
billing office,” id. at 13, and that the alternative supply
distribution tech position “was designed to work a hardship” on
him by moving him from a “sedentary white collar job” to a
position where he was exposed to “blood and the smell of burning
flesh,” id. at 15.
15
Inova responds that “[r]egardless of when Inova was able to
replace [Howard] with another full-time employee, [Howard’s old
billing position] required a full-time employee, and both his
first and second alternative positions did not.” Respondent’s
Br. at 34. Inova also points out that the new position offered
the same salary and benefits as the old position and involved
“job duties that were a rough equivalent of his tasks in the
billing office.” Respondent’s Br. at 35. Inova further
emphasizes that contrary to Howard’s contention, his medical
record contained no restrictions as to the kind of work he could
perform.
Howard’s reliance on the DOL’s investigative findings is
unavailing. Courts have routinely declined to rely on agency
findings, in part because such a finding does not result from an
adjudicatory proceeding and consequently has no preclusive
effect. See Phipps v. County of McLean, No. 07-cv-1160, 2008 WL
4534066, at *4 n.3 (C.D. Ill. Oct. 7, 2008) (citation omitted);
cf. Brantley v. Nationwide Mut. Ins. Co., No. RDB-07-1322, 2008
WL 2900953, at *3–5 (D. Md. July 22, 2008); Roberts v. The
Health Ass’n, No. 04-CV-6637T, 2007 WL 2287875, at *4–7
(W.D.N.Y. Aug. 8, 2007); Hamilton v. Niagara Frontier Transp.
Auth., Nos. 00-CV-300SR, 00-CV-863SR, 2007 WL 2241794, at *13–15
(W.D.N.Y. July 31, 2007). But cf. Ammons-Lewis v. Metro. Water
16
Reclamation Dist. Of Greater Chicago, No. 03 C 0885, 2004 WL
2453835, at *9 (N.D. Ill. Nov. 1, 2004) (finding that the DOL
report “may create an issue of fact as to whether [the
plaintiff’s] first leave request was improperly denied,” but
granting summary judgment in favor of the defendant because the
plaintiff could not show damages (citation omitted)). The
district court did not err in declining to rely on the DOL’s
findings, and we do not rely on them now in our de novo review.
Howard stresses that his duties in his billing position
were absorbed by current employees working overtime, but this
argument fails to raise a fact issue as to whether his old
position required a full-time employee, as Inova contends. Nor
does it address the more critical issue of whether his new
supply distribution tech position better accommodated a reduced
work schedule. Although Howard’s new position required
different job duties than his old position, an alternative
position intended to accommodate a reduced work schedule “does
not have to have equivalent duties,” just “equivalent pay and
benefits.” 29 C.F.R. § 825.204(c). Howard does not contend on
appeal that the transfer to the supply distribution tech
position resulted in a cut in his pay or benefits.
Howard’s argument that Inova transferred him to work a
hardship on him is similarly unpersuasive. The record does not
17
support his contention that Inova transferred him in bad faith
with knowledge that exposure to blood in and around the OR would
exacerbate his PTSD. The record shows that the most recent
documentation that Inova possessed relating to his PTSD dated
back to 2001. Howard testified in his deposition that he
verbally told Quick he could not be exposed to blood and bodily
fluids when she informed him of the transfer in 2005, but he had
submitted no FMLA documentation of his PTSD for almost four
years. All the FMLA documentation that he had provided in the
preceding three years dealt solely with back problems from his
car accidents in 2002. He submitted a note from Dr. Lawrence to
excuse his six-day absence before beginning the new supply
distribution tech position, but this letter did not notify Inova
that Howard’s PTSD had recurred. Rather, it stated only that
Howard “has been suffering from debilitating stress” but was now
“fit to return to duty.” J.A. 644. Howard has not shown that a
fact issue exists as to whether Inova transferred him to “work a
hardship” on him under 28 C.F.R. § 825.204.
2.
Howard argues that Inova violated the FMLA by disciplining
him for unexcused absences in the spring of 2005. He contends
that the district court ignored evidence in the record that
“Howard had provided to Inova a FMLA form for intermittent leave
18
in 2003 and that Inova had lost Howard’s FMLA form.”
Petitioner’s Br. at 10. Relying on Williams’s deposition
testimony that “doctor[’]s notes are not required for
intermittent leave once it has been approved,” Howard contends
that Inova “violated the FMLA regulations by failing to keep
FMLA forms submitted by Howard for the required three years
pursuant to 29 C.F.R. [§] 825.500.” Petitioner’s Br. at 14.
Howard argues that this 2003 form provided sufficient
certification to excuse his absences in the spring of 2005.
Inova responds that contrary to Howard’s contention, it does
have the 2003 form that Howard submitted. Inova also points out
that its policy, consistent with 29 C.F.R. § 825.308, entitles
it to request recertification of an FMLA-qualifying chronic
condition every 30 days.
Howard’s argument is not persuasive. Regardless of whether
Inova failed to retain Howard’s 2003 FMLA form for three years
as required by 29 C.F.R. § 825.500(b), that regulation does not
require an employer to consider FMLA documentation as effective
for three years. To the contrary, as Inova points out, an
employer may request recertification of a chronic or
“permanent/long-term condition[] under continuing supervision of
a health care provider” at least every 30 days, “in connection
with an absence by the employee.” 29 C.F.R. § 825.308(a); see
19
also Rhoads v. F.D.I.C., 257 F.3d 373, 383 (4th Cir. 2001) (“An
employer has discretion to require that an employee’s leave
request ‘be supported by a certification issued by the health
care provider of the employee.’” (citing 29 U.S.C. § 2613(a))
(punctuation omitted)). Although Howard ultimately submitted a
Certification of Health Care Provider form from Dr. Dade on May
31, 2005 and received approval for leave on a going-forward
basis from March 29, 2005 to March 28, 2006, he points to no
evidence in the record showing that he submitted such a form or
the necessary leave requests to excuse his nine absences in the
spring of 2005. The lack of FMLA documentation for his absences
in 2005 is especially apparent in light of the extensive
documentation he provided in 2002 and 2003 to excuse numerous
absences due to his car accidents. See J.A. 597–602, 604–013.
The record does not support a fact issue as to whether Inova
improperly disciplined Howard for his absences in the spring of
2005.
3.
Howard argues that Inova wrongfully terminated his
employment for failure to provide fitness-for-duty certificates
because Inova improperly required certificates from two doctors.
He also contends that Inova improperly sought more than “a
simple statement” as required by 29 C.F.R. § 825.310(c). Howard
20
notes that Inova required Howard to ask his doctors to review a
job description and to provide additional information about his
condition. He points out that the DOL found Dr. Lawrence’s
September 15, 2005 letter, which stated that Howard could
“return to appropriate work around the end of this month,” J.A.
158, to be an adequate fitness-for-duty certification. See
generally J.A. 1154–68, 1195–96. In addition, Howard argues
that “[w]hen an employee is terminated prior to the conclusion
of his 12 weeks of FMLA leave, the termination violates the
FMLA.” Petitioner’s Reply Br. at 4. He asserts that he was
still eligible for FMLA leave that would have lasted until
October 19, 2005, such that Inova’s termination of his
employment on October 17, 2005 violated the FMLA.
In response, Inova argues that Howard failed to submit any
fitness-for-duty certification, despite written requests on
August 26, September 8, and September 28, 2005. Citing Bloom v.
Metro Heart Group of St. Louis, Inc., 440 F.3d 1025, 1030 (8th
Cir. 2006), Inova argues that Dr. Lawrence’s letter was “too
vague and conditional” to serve as a fitness-for-duty
certification. Respondent’s Br. at 23.
Bloom is inapposite to this case. The Bloom court
considered a diagnostic report from a non-treating physician
that the employer had paid to examine the employee during her
21
absence from work. When she wished to resume work, the employee
had asked her two treating physicians to complete a fitness-for-
duty certificate, but neither returned the form to her. As a
result, she relied on the diagnosing physician’s earlier report
as “equivalent to a fitness-for-duty certificate.” Bloom, 440
F.3d at 1030. The Eighth Circuit found this report to be “too
vague and conditional to constitute a statement that [the
employee] was fit-for-duty.” 5 Id. Unlike the diagnostic report
in Bloom, Dr. Lawrence’s letter in this case was clearly
intended to convey information to Inova about Howard’s ability
to return to work. The Sixth Circuit has held that a “fitness-
for-duty certification need only state that the employee can
return to work.” Brumbalough v. Camelot Care Ctrs., Inc., 427
F.3d 996, 1003 (6th Cir. 2005). The Brumbalough court noted:
While the employer may require more information, the
regulation clearly states that the employer cannot
delay reinstating the employee simply because the
employer is obtaining further information or
5
The report stated as follows:
Whatever direction or energies her previous treating
physicians think best for her, it should be carried on
by them in her behalf.
If she were working, I would not be able to determine
any medical basis to restrict work activities as a
sonographer/electrocardiographer/ultrasound
technician.
Bloom, 440 F.3d at 1029.
22
clarification from the employee’s health care
provider. . . .
This view is bolstered by the fact that the FMLA and
accompanying regulations lay out in specific detail
what must be included in an initial medical
certification, whereas the regulations expressly state
that only a simple statement is needed in a fitness-
for-duty certification. . . .
Accordingly, we hold that once an employee submits a
statement from her health care provider which
indicates that she may return to work, the employer’s
duty to reinstate her has been triggered under the
FMLA.
427 F.3d at 1003–04 (citations omitted).
This circuit has not yet addressed what constitutes an
adequate fitness-for-duty certification under the FMLA, but we
need not reach this issue because Inova properly terminated
Howard’s employment under 29 C.F.R. § 825.311. Section 825.311
states:
When requested by the employer pursuant to a uniformly
applied policy for similarly-situated employees, the
employee must provide medical certification at the
time the employee seeks reinstatement at the end of
FMLA leave taken for the employee’s serious health
condition, that the employee is fit for duty and able
to return to work if the employer has provided the
required notice . . . . In this situation, unless the
employee provides either a fitness-for-duty
certification or a new medical certification for a
serious health condition at the time FMLA leave is
concluded, the employee may be terminated.
29 C.F.R. § 825.311(c) (emphases added) (citations omitted).
Under this section, Inova was entitled to terminate Howard’s
23
employment because he had not provided a fitness-for-duty
certification or a new medical certification when his August
2005 FMLA leave expired. 6 The record shows that Inova approved
Howard’s request “for intermittent leave,” which “began on
August 11, 2005 and will end on August 26, 2005.” J.A. 679
(emphasis omitted). Inova expected Howard to resume work on
August 29, 2005, see J.A. 659, and informed Howard that he
needed to provide a fitness-for-duty certificate before
returning to work, see J.A. 679. However, Howard did not return
6
Howard argues that he still had additional FMLA leave at
the time Inova terminated his employment and that this
termination “violates the FMLA” because it occurred “prior to
the conclusion of his 12 weeks of FMLA leave.” Petitioner’s
Reply Br. at 4. Howard cites no regulation or statute to
support this contention, which appears to rely on an untenable
interpretation of 29 C.F.R. § 825.311(c). In requiring the
employee to provide “either a fitness-for-duty certification or
a new medical certification for a serious health condition at
the time FMLA leave is concluded,” section 825.311(c) does not
refer to all FMLA leave to which the employee is then entitled,
as Howard seems to suggest. If it did, its requirement of a
“new medical certification for a serious health condition” is
nugatory, because an employee who has reached the end of all the
FMLA leave to which he is entitled in a 12-month period has
exhausted that leave and may not qualify for more, regardless of
whether he submits a new medical certification. See 29 C.F.R. §
825.200(a) (stating that an “eligible employee’s FMLA leave
entitlement is limited to a total of 12 workweeks of leave
during any 12-month period” (emphasis added)). To give meaning
to the entire regulation, section 825.311(c) must be interpreted
to require an employee to provide a fitness-for-duty
certification or a new medical certification at the time the
employee’s scheduled, approved FMLA leave—for which the employee
has provided the necessary notice and certification—expires.
24
to work on August 29, 2005, and in fact did not attempt to
return to work until October 3, 2005. Although Dr. Lawrence
sent a September 15, 2005 letter stating that Howard could
return to work “around the end of this month,” J.A. 158, nothing
in the record shows that Howard submitted proper medical
certification and sought reinstatement at the end of his
approved FMLA leave. Under 29 C.F.R. § 825.311(c), Inova was
entitled to terminate Howard’s employment because Howard had
provided neither “a fitness-for-duty certification” nor a “new
medical certification for a serious health condition at the time
[his approved] FMLA leave [was] concluded.” 7 Howard has not
shown that a fact issue exists as to whether Inova’s termination
of his employment violated the FMLA.
B.
In his retaliation claim, Howard asserts that Inova
retaliated against him for exercising his rights under the FMLA
by disciplining him for unexcused absences, transferring him to
an alternative position that exacerbated his PTSD, and
terminating his employment “before his 12 weeks of medical leave
was concluded.” Petitioner’s Reply Br. at 7–9. His briefs
7
The parties do not dispute on appeal whether Inova
requested a fitness-for-duty certification from Howard “pursuant
to a uniformly applied policy for similarly-situated employees.”
29 C.F.R. § 825.311(c); see also 29 C.F.R. § 825.310(a).
25
focus on the alleged retaliatory transfer to the supply
distribution tech position. He emphasizes that Inova
transferred him to a position near the OR knowing that his PTSD
could be triggered. He further contends that Williams and
Quick, in conjunction with other Inova HR personnel, decided to
leave Howard in the alternative position after learning of his
EEOC complaint, even after both Howard and an old supervisor,
Kavros, told them he should not be working around the OR.
In response, Inova points out that Quick informed Howard of
his transfer to the supply distribution tech position on June
15, 2005, and that Howard reported for work on June 23, 2005
with a note stating that Howard was “fit to return to duty” as
long as he could “avoid unnecessary stress” if possible. See
J.A. 126. Inova highlights that Howard returned to work “with
full knowledge of his working environment,” but the note failed
to advise Inova of any problem Howard might have with his
proximity to the OR. Respondent’s Br. at 38–39. Inova further
asserts that it did not receive “notice that Howard may have
been in proximity to blood or other PTSD-triggering stimuli in
his alternate position until July 12, 2005 at the earliest, and
there was doubt as to whether this was true or not.” Id. at 39.
Inova argues that “as soon as Inova had confirmation that Howard
26
had concerns about being exposed to blood, he was transferred to
another position.” Id.
We have held that “FMLA claims arising under the
retaliation theory are analogous to those derived under Title
VII and so are analyzed under the burden-shifting framework of
McDonnell Douglas Corp. v. Green [441 U.S. 792, 800–06 (1973)].”
Yashenko v. Harrah’s N.C. Casino Co., LLC, 446 F.3d 541, 550–51
(4th Cir. 2006) (citation omitted). A plaintiff “must make a
prima facie showing that he ‘engaged in protected activity, that
the employer took adverse action against him, and that the
adverse action was causally connected to the plaintiff’s
protected activity.’” Id. at 551 (quoting Cline v. Wal-Mart
Stores, Inc., 144 F.3d 294, 301 (4th Cir. 1998)). If the
plaintiff “establishes a prima facie case of retaliation” and
the employer “offers ‘a nondiscriminatory explanation’ for his
termination,” the plaintiff “bears the burden of establishing
that the employer’s proffered explanation is pretext for FMLA
retaliation.” Id. (quoting Nichols v. Ashland Hosp. Corp., 51
F.3d 496, 502 (4th Cir. 2001)).
Applying this analysis, the district court found that
Howard had failed to establish a prima facie retaliation claim
because his transfer to the supply distribution tech position
“was consistent with both FMLA regulations and Inova’s Family
27
and Medical Leave policy” and did not constitute an “adverse
employment action.” 8 J.A. 77. The court held that even if the
transfer did qualify as an adverse employment action, “Inova has
met its burden of establishing a non-discriminatory reason for
the transfer” and Howard failed to offer “any evidence of
pretext.” Id.
Howard has not shown a prima facie retaliation claim.
Although he argues that Inova transferred him to and retained
him in the supply distribution tech position in bad faith, he
has not identified evidence in the record to create a fact issue
on this point. As noted above, the most recent documentation in
Inova’s files relating to Howard’s PTSD dated from 2001. All
the FMLA documentation that Howard had submitted in the three
years preceding the recurrence of his PTSD related to his back
problems. Although Howard missed a week of work due to
“debilitating stress,” when he returned the note from his health
care provider did not state that Howard’s PTSD had recurred or
that he needed to avoid exposure to blood. Howard admitted in
his deposition that he did not inform anyone at Inova about most
of the dissociative episodes he experienced while working in the
8
The district court also noted that insofar as Howard
argued that Inova wrongly disciplined him for absenteeism and
tardiness, Inova properly considered Howard’s absences unexcused
because of his failure to provide FMLA certification.
28
OR. J.A. 432–34. The record also shows that he did not submit
FMLA certification of his PTSD until August 10, 2005. Howard
has not shown that a fact issue exists as to whether Inova’s
decision to transfer him was retaliatory.
C.
Howard has failed to establish a fact issue as to either
his interference or retaliation claims. We therefore affirm the
district court’s grant of summary judgment in favor of Inova.
III.
Howard also appeals the district court’s denial of his
leave to dismiss his complaint without prejudice or, in the
alternative, to amend his complaint. The denial of a motion to
dismiss without prejudice is reviewed for abuse of discretion.
See Andes v. Versant Corp., 788 F.2d 1033, 1035 (4th Cir. 1986).
Under Federal Rule of Civil Procedure 41(a)(2), a court may
dismiss an action “at the plaintiff’s request only by court
order, on terms that the court considers proper.” The denial of
a motion for leave to amend a complaint is reviewed for abuse of
discretion. Franks v. Ross, 313 F.3d 184, 192 (4th Cir. 2002)
(citing HCMF Corp. v. Allen, 238 F.3d 273, 276–77 (4th Cir.
2001)). Under Federal Rule of Civil Procedure 15(a)(2), “a
29
court should freely give leave [to amend] when justice so
requires.”
A.
Howard argues that the district court erred in denying his
motion to dismiss his complaint without prejudice under Federal
Rule of Civil Procedure 41(a)(2). The purpose of Rule 41(a)(2)
is “to allow voluntary dismissals unless the parties will be
unfairly prejudiced.” Davis v. USX Corp., 819 F.2d 1270, 1273
(4th Cir. 1987) (citations omitted). In deciding a motion to
dismiss without prejudice under Rule 41(a), “a district court
should consider factors such as ‘the opposing party’s effort and
expense in preparing for trial, excessive delay and lack of
diligence on the part of the movant, and insufficient
explanation of the need for a voluntary dismissal,’ as well as
the present stage of litigation.” Miller v. Terramite Corp.,
114 F. App’x 536, 540 (4th Cir. 2004) (quoting Phillips USA,
Inc., v. Allflex USA, Inc., 77 F.3d 354, 358 (10th Cir. 1996)).
Howard argues on appeal that granting his motion to dismiss
without prejudice would not have prejudiced Inova. He asserts
that Inova’s efforts “in this litigation need not be repeated in
any future case” because he has “stipulated that any discovery
shall be admissible in a future proceeding.” Petitioner’s Br.
at 22. He also contends that there was no excessive delay on
30
his part and points out that Inova “delayed producing important
discovery until the last week of discovery and even beyond the
discovery period.” Id. at 21–22.
In response, Inova notes that Howard filed his motion to
dismiss two weeks before trial and asserts that it incurred
substantial expense in preparing for trial. Citing Andes, 788
F.2d at 1036–37, and related cases, Inova points out that “the
expenses of discovery and preparation of a motion for summary
judgment may constitute prejudice sufficient to support denial
of a voluntary dismissal.” Respondent’s Br. at 47. Inova
further argues that Howard was not diligent in pursuing his
claims in this case and notes that in the initial discovery
period, Howard’s discovery efforts consisted of one set of
interrogatories and document requests issued at the beginning of
the period. Inova moved to extend the discovery deadline until
April 6, 2007, because of alleged deficiencies in Howard’s
discovery responses. Howard only attempted to depose Inova’s
corporate representative on April 3, 2007, four days before the
close of extended discovery. During this deposition, Howard
made additional document requests based on the deponent’s
responses, and Inova complied. Inova stresses that it never
withheld any nonprivileged responsive information from Howard at
any time. In addition, Inova highlights that Howard did not
31
file his motion to dismiss until more than three weeks after
discovery closed, and after Inova had filed its summary judgment
motion.
Our jurisprudence on the issue of what constitutes
sufficient prejudice to a nonmovant to support denial of a
motion for voluntary dismissal under Rule 41(a)(2) is not free
from ambiguity. In Davis, we noted that “[i]t is well
established that, for purposes of Rule 41(a)(2), prejudice to
the defendant does not result from the prospect of a second
lawsuit” or “the possibility that the plaintiff will gain a
tactical advantage over the defendant in future litigation.”
819 F.2d at 1274–75. Similarly, in Fidelity Bank PLC v. N. Fox
Shipping N.V., we held that “the mere filing of a motion for
summary judgment is not, without more, a basis for refusing to
dismiss without prejudice.” 242 F. App’x 84, 89 (4th Cir. 2007)
(quoting Andes, 788 F.2d 1033, 1036 n.4 (internal quotations and
alterations omitted)). However, we have also found on multiple
occasions that a district court does not abuse its discretion in
denying a motion for voluntary dismissal if the case has
advanced to the summary judgment stage and the parties have
incurred substantial costs in discovery. See, e.g., Miller, 114
F. App’x at 540 (affirming district court’s decision that
plaintiff’s motion for voluntary dismissal was “untimely and
32
would waste judicial resources” because the motion was filed
well after discovery had closed and a dispositive order was
imminent); Francis v. Ingles, 1 F. App’x 152, 154 (4th Cir.
2001) (affirming district court’s denial of motion to dismiss
without prejudice because the “plaintiff’s motion came after a
lengthy discovery period and merely one week before the
scheduled trial date” and because “the motivation for the motion
appeared to be to circumvent” a discovery ruling, which counsel
could have avoided “by deposing the witness within the discovery
period”); Skinner v. First Am. Bank of Va., 64 F.3d 659, at *2–3
(4th Cir. 1995) (stating that “[t]he expenses of discovery and
preparation of a motion for summary judgment may constitute
prejudice sufficient to support denial of a voluntary dismissal”
and noting that granting a motion to dismiss is not required to
allow a party to “avoid an adverse ruling in federal court”);
Sullivan v. Westinghouse Elec. Corp., 848 F.2d 186, at *2 (4th
Cir. 1988) (“Given the advanced stage of the proceedings, the
district court’s denial of [the plaintiff’s] motion was not an
abuse of discretion.”).
We conclude that Howard has not shown that the district
court abused its discretion in denying his motion to dismiss
without prejudice on these facts. The posture of this case is
similar to that in Andes, in which the court noted that the case
33
did not present “extreme prejudice to defendants,” but
nevertheless was “more advanced than a number of cases . . . in
which voluntary dismissal was held proper.” 788 F.2d at 1036
(collecting cases). The defendants in Andes asserted that they
had incurred significant expenses engaging in discovery and
filing motions for summary judgment. The Andes court found that
under the circumstances, “there was a sufficient basis for
denying [the plaintiff’s] Rule 41(a)(2) motion and thus we
cannot say that the district court abused its discretion in
refusing to dismiss without prejudice.” Id. at 1036–37.
In this case, the record fails to support Howard’s
explanation of the need for voluntary dismissal. Howard asserts
that Inova’s document production late in the discovery period
revealed that Inova’s reasons for transferring Howard were
pretextual. He argues that “[t]his showing of pretext warrants
Plaintiff being allowed to join his FMLA claim with his ADA
claim that he requested a right to sue letter from the EEOC on.”
Petitioner’s Br. at 23. As Howard’s brief and the record show,
however, Howard was well aware of the possibility of an ADA
claim before he filed his complaint in this case. He filed an
EEOC charge alleging an ADA violation on June 27, 2005. He
filed his complaint alleging only his FMLA claims on August 24,
2006.
34
In addition, the record shows that Howard was not diligent
in conducting the discovery that he asserts led to the new
information that supports his motion for voluntary dismissal.
Howard emphasizes that Inova was producing documents even after
the close of discovery, but Inova points out that it only
produced responsive documents due to Howard’s last-minute
requests at the end of the discovery period. Howard has not
shown that Inova failed to provide responsive documents in a
timely fashion related to any of his discovery requests.
Given the stage of the litigation, Howard’s insufficient
explanation for a voluntary dismissal, and his lack of diligence
in pursuing both discovery and his substantive claims, the
district court did not abuse its discretion in finding a
“sufficient basis” to deny Howard’s motion to dismiss without
prejudice. Andes, 788 F.2d at 1036–37.
B.
Howard also argues that the district court erred in denying
his motion to amend. Under Rule 15, the district court may
grant a motion to amend the complaint “when justice so
requires.” A district court does not abuse its discretion in
denying leave to amend if there is “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue
35
prejudice to the opposing party. . . , futility of amendment,
etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).
Howard argues that he should be allowed to add an ADA claim
based on the evidence that Inova produced toward the end of
discovery, which Howard asserts supports his argument that
Inova’s reasons for transferring him were pretextual. Inova
argues in response that Howard unduly delayed in moving to amend
his complaint to add his ADA claims, noting that Howard could
have requested a right-to-sue letter from the EEOC at any time
after December 24, 2005 and that he did not seek to amend his
complaint until almost two years after he filed his EEOC charge.
Inova also contends that to allow amendment would prejudice
Inova due to the advanced stage of the litigation and the
different theories of recovery an ADA claim would involve.
We have noted that “[a]mendments near the time of trial may
be particularly disruptive, and may therefore be subject to
special scrutiny.” Deasy v. Hill, 833 F.2d 38, 41 (4th Cir.
1987) (citation omitted). The Deasy court found that “a motion
to amend should be made as soon as the necessity for altering
the pleading becomes apparent.” Id. (quoting 6 Charles Alan
Wright & Arthur A. Miller, Federal Practice & Procedure § 1488
(1971)). In this case, Howard has not shown that his proposed
amendment to add an ADA claim resulted from the discovery of new
36
facts that prompted his motion to amend. To the contrary, the
record shows that Howard was aware of the possibility of an ADA
claim almost a year before he filed his complaint.
In ruling from the bench on Howard’s motion to dismiss
without prejudice or to amend, the district court noted that
“[t]his EEOC matter was a matter that had been known about. And
while there was perhaps some information that came late, I don’t
believe there is any showing that that’s a groundbreaking piece
of information by any means.” J.A. 29. The district court did
not abuse its discretion in so holding.
C.
We affirm the district court’s decision to deny Howard’s
motion to dismiss without prejudice or, in the alternative, to
amend his complaint.
IV.
Lastly, Howard appeals the district court’s decision to
dismiss his ADA claim as barred by res judicata. We review de
novo an order granting a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6). Giarrantano v. Johnson, 521 F.3d 298,
302 (4th Cir. 2008).
Howard argues that Inova now “seeks to benefit from the
repose granted by res judicata when the facts demonstrate that
37
in the FMLA case the facts that would have led to the early
joinder of the ADA cause of action were withheld by the actions
of [Inova].” Petitioner’s Br. at 25–26. He asserts that
because Inova withheld critical information, his counsel “could
not effectively question Williams” or “assert the ADA claim
early in the previous litigation.” Id. at 28.
Inova argues that the elements for res judicata are
satisfied because the district court’s decision granting summary
judgment in favor of Inova is a final judgment on the merits;
the parties are identical in both actions; and the claims in
both actions arise out of the same core of operative facts.
Inova points out that Howard does not challenge the district
court’s res judicata analysis on appeal, but instead relies on
his argument that Inova withheld critical evidence. Inova
reiterates its assertion that it timely provided responsive
documents to all Howard’s discovery requests and did not
withhold information.
“For the doctrine of res judicata to be applicable, there
must be: (1) a final judgment on the merits in a prior suit; (2)
an identity of the cause of action in both the earlier and the
later suit; and (3) an identity of parties or their privies in
the two suits.” Martin v. Am. Bancorporation Retirement Plan,
38
407 F.3d 643, 650 (4th Cir. 2005) (quoting Pueschel v. United
States, 369 F.3d 345, 354–55 (4th Cir. 2004)).
The district court did not err in dismissing Howard’s ADA
claim as barred by res judicata. Quoting Peugeot Motors of
America, Inc. v. Eastern Auto Distributors, Inc., 892 F.2d 355,
359 (4th Cir. 1989), the district court noted that res judicata
not only “bar[s] claims that were raised and fully litigated,”
but also “prevents litigation of all grounds for, or defenses
to, recovery that were previously available to the parties,
regardless of whether they were asserted or determined in the
prior proceeding.” J.A. 85. The district court found that
Howard’s ADA claims “clearly rely on the same factual
circumstances on which he relied in his prior FMLA claim, namely
Defendant Inova’s decision to transfer [Howard] to a post in the
hospital that exposed him to blood and the smell of burnt
flesh.” J.A. 86. The record bears out this conclusion. As
noted above, Howard filed an EEOC charge of discrimination
asserting an ADA violation well before he filed his original
complaint asserting FMLA violations arising out of the same core
facts. Howard could have brought his ADA claim in his original
complaint, but chose not to. “Broadly speaking, a party always
has the option or election of raising fewer than all the
potential theories of relief that might be available. However,
39
it is the rule that when a party can present all grounds in
support of his cause of action, he must do so, if at all, in the
proceeding on that cause of action.” Ohio-Sealy Mattress Mfg.
Co. v. Kaplan, 90 F.R.D. 11, 15 (D.C. Ill. 1980) (citations
omitted), aff’d in part and rev’d in part, 745 F.2d 441 (7th
Cir. 1985), cert. denied, 471 U.S. 1125 (1985), quoted in 18
Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper,
Federal Practice and Procedure, Jurisdiction, § 4407 (2d ed.
2002).
We affirm the district court’s dismissal of Howard’s ADA
claim as barred by res judicata.
V.
For the reasons outlined above, the judgments of the
district courts are
AFFIRMED.
40 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2441107/ | 968 N.E.2d 220 (2008)
383 Ill. App. 3d 1148
360 Ill. Dec. 141
DELAURENTIS
v.
OAKBROOK TERRACE POLICE PENSION BD.
No. 2-07-0892.
Appellate Court of Illinois, Second District.
September 18, 2008.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859786/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-94-368-CR
CARLOS MANNING,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT
NO. 43,964, HONORABLE C.W. DUNCAN, JR., JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of aggravated robbery. Tex. Penal Code Ann.
§ 29.03 (West 1994). (1) The district court assessed punishment at imprisonment for forty years.
On November 10, 1993, two men entered a video rental store in Killeen and robbed
the cashier, Jennifer Grey, at gunpoint. Grey testified that both robbers were clean-shaven and
that she did not recall either man having a noticeable accent. Grey identified appellant, who was
bearded at trial, as one of the robbers.
Defense witness Katrina Richardson testified that appellant lived with her from June
1993 to January 1994. According to Richardson, appellant spent the first sixteen years of his life
in Panama and spoke with a strong Panamanian accent. She further testified that appellant wore
a beard at all times.
In rebuttal, the State called Killeen police officer Roger Hackenbrocht. Over
appellant's bolstering objection, the officer testified that Grey selected appellant's photograph
from a group of photographs he showed her in January 1994. The photo spread was admitted in
evidence. It consists of six photographs of black men, each of whom has some form of facial
hair.
In his first point of error, appellant contends evidence regarding Grey's pretrial
identification of appellant was irrelevant to any issue in the case and served only to bolster her
in-court identification of appellant. Appellant relies on Sledge v. State, 686 S.W.2d 127 (Tex.
Crim. App. 1984). In that opinion, the court noted that corroboration of a witness after
impeachment did not constitute improper bolstering. Id. at 129. But "[b]efore third party
accounts of a complainant's extrajudicial identification become admissible," it must be determined
that the challenged evidence "will serve to rehabilitate the complainant on the specific point upon
which he has been impeached or attacked." Id. Appellant notes that Richardson's testimony
impeached Grey's identification of appellant in two respects: (1) Grey testified that the robbers
were clean-shaven, while Richardson testified appellant wore a beard and (2) Grey testified that
neither robber had a noticeable accent, while Richardson testified to appellant's heavy Panamanian
accent. Appellant argues that Grey's pretrial identification of a photograph of appellant wearing
a beard did not rehabilitate her testimony in either respect.
Sledge, like most opinions regarding the subject of bolstering, predates the Texas
Rules of Criminal Evidence. Under these authorities, objectionable bolstering occurred when one
item of evidence was used by a party to add credence or weight to some earlier unimpeached piece
of evidence offered by the same party. Pless v. State, 576 S.W.2d 83, 84 (Tex. Crim. App.
1978). The term "bolstering" does not appear in the rules of criminal evidence and no rule
mandates the exclusion of relevant evidence simply because it corroborates the testimony of an
earlier witness. Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993). Under the rules,
bolstering is subsumed within the concept of relevance, and is best understood as referring to
evidence that serves the sole purpose of convincing the factfinder that a particular witness is
worthy of credit and that does not make the existence of a consequential fact more or less probable
than it would be without the evidence. Id. at 819-20; Tex. R. Crim. Evid. 401.
The identity of the guilty party is a fact of consequence to the determination of
every criminal prosecution. Evidence of an extrajudicial identification of the accused by the
complainant tends to make his guilt more probable than it would be without the evidence.
Therefore, the district court did not err by admitting evidence of Grey's identification of
appellant's photograph over appellant's bolstering objection and his related contention that the
evidence was irrelevant under the circumstances. Point of error one is overruled.
In his second point of error, appellant contends the prosecutor went outside the
record when he argued that appellant fled after the robbery and that the jury could infer guilt from
this flight. The robbery occurred in November 1993 and appellant was arrested in South Carolina
in January 1994. Richardson testified that appellant lived with her in Killeen until January 1994,
when he went to South Carolina to visit relatives. Appellant argues that there is no evidence that
appellant fled from Killeen after the robbery.
During jury argument, counsel is allowed wide latitude to draw reasonable
inferences from the evidence. Scott v. State, 867 S.W.2d 148, 152 (Tex. App.--Austin 1993, no
pet.). The prosecutor did not exceed the scope of permissible argument by urging that the desire
to avoid apprehension, and not the pull of family ties, motivated appellant's trip to South
Carolina. This conclusion is not foreclosed by Powell v. State, 560 S.W.2d 646, 649-50 (Tex.
Crim. App. 1977), cited by appellant. The issue in that case was not the scope of proper jury
argument, but whether the testimony of an accomplice witness was corroborated. The court held
that evidence the defendant was arrested in another state two months after the offense did not tend
to connect him to the offense. It does not follow that the prosecutor, during argument in this
cause, could not infer a consciousness of guilt from appellant's actions. Point of error two is
overruled.
The judgment of conviction is affirmed.
Before Justices Powers, Aboussie and B. A. Smith
Affirmed
Filed: January 25, 1995
Do Not Publish
1. The 1994 Penal Code amendments did not substantively alter section 29.03. | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1550748/ | 114 F.2d 578 (1940)
BEARD
v.
BENNETT, Director of United States Bureau of Prisons, et al.
No. 7580.
United States Court of Appeals for the District of Columbia.
Decided June 17, 1940.
James J. Laughlin, of Washington, D. C., for appellant.
Edward M. Curran, U. S. Atty., and Allen J. Krouse, Asst. U. S. Atty., both of Washington, D. C., for appellees.
*579 Before STEPHENS, MILLER, and RUTLEDGE, Associate Justices.
RUTLEDGE, Associate Justice.
The appeal is from an order denying a petition for a writ of habeas corpus for want of jurisdiction in the court to issue it in the circumstances made by the case. Appellant is confined in the United States Penitentiary at Atlanta, Georgia, where he is serving a sentence of two to six years' imprisonment imposed May 15, 1935, upon his conviction in the court below of violating Section 865 of the District of Columbia Code.[1] He alleges that the conviction was secured through evidence illegally obtained; that he was confined first in the Washington Asylum and Jail; then was transferred to the Atlanta penitentiary; then to the District of Columbia Reformatory at Lorton, Virginia; and finally again to the Atlanta penitentiary. He challenges not only the legality of his imprisonment, but also the authority to make the various changes in the place of his confinement. The original respondents were the Director of the United States Bureau of Prisons and the Director of the Board of Public Welfare of the District of Columbia. Later appellant amended the petition to include as additional respondents the Attorney General of the United States and the General Superintendent of Penal Institutions of the District. The warden at Atlanta has not been made a party to the proceeding.
Shortly stated, the case is one in which the prisoner was convicted in a court of the District of an offense prescribed by a statute which is operative only within its territorial limits, but is confined for service of the sentence in an institution which is neither within the territorial limits of the District nor within its governmental jurisdiction as part of its local penal system. In these circumstances the court found that it had no jurisdiction to issue the writ and denied the petition.
I. There is no merit in appellant's challenge to the Attorney General's authority to designate the institution for service of sentence or transfer him from one to another, whether located within or without the District and whether subject to control of its local penal officials or to that of other, and distinctively federal, custodians.[2] Appellant says that he is "a District of Columbia prisoner" and "under the authority of the Board of Public Welfare of the District," apparently by virtue of the fact that he was convicted here of an offense created by a statute operative only within the District. Accordingly he appears to regard himself as rightfully subject to incarceration only in a penal institution of the District, and the Attorney General as without lawful authority to designate or transfer him to a federal penitentiary outside the District and not within the control of its local penal officers. It is clear, however, from the authorities previously cited that his offense was "an offense against the United States" within the meaning of 18 U.S.C. § 753f, 18 U.S.C.A. § 753f, which requires commitment to the custody of the Attorney General for imprisonment in the type of institution directed by the court and empowers him to designate and change the place of confinement. That section, if it is in any respect inconsistent with D.C. Code (1929) tit. 6, § 402,[3] is so only to the extent that it broadens the Attorney General's authority so that he may designate a place of confinement other than one "of the District of Columbia." Appellant, by his conviction, acquired no vested right to be incarcerated in a prison "of the District." He does not contend, nor could he well do so, that Congress could not authorize his confinement in an institution which is no part of the District's penal system proper. It not only has power to do so, but has exercised it by conferring the authority upon the Attorney General. Appellant's contention that his confinement at Atlanta is beyond the Attorney General's rightful power and illegal, is therefore wholly unfounded. It is, in fact, the existence of this authority which raises the serious question in the case.
*580 II. Appellant is in the immediate custody of the warden at Atlanta, who is not a party to the proceeding. For this reason and because his restraint is exercised beyond the District's borders, appellees say the District Court is without jurisdiction. They contend that the warden's custody is the controlling one, because it is immediate, and that the Attorney General's admitted ultimate custody or control of the prisoner and his place of confinement, together with his official residence in the District, does not confer jurisdiction upon the court below.
On the other hand, appellant asserts that the Attorney General is charged with his custody by statute[4] and by the sentence of the court; is now exercising it and is finally responsible both for the fact and for the place of confinement; and that the warden exercises constraint only by the direction, under the authority and as the representative of the Attorney General.[5] It is said that he has undoubted power, both in fact and in law, to produce the prisoner's body at the bar of the court; that he is subject to the jurisdiction of the court for the purpose of responding to the writ; and that his custody, not the warden's, is the one controlling in determination of the jurisdictional question. It is inherent in his contention that the mere fact the place of confinement is beyond the territorial limits of the District is immaterial. He relies principally upon Sanders v. Allen, 1938, 69 App. D.C. 307, 100 F.2d 717, to sustain his position.
Implicit in these contentions are several issues which, though related, are distinct in some respects. Among them are the following: (1) whether the mere fact that the place of confinement is outside the District defeats the jurisdiction; if not, (2) whether the warden's custody is controlling and exclusive for purposes of the writ so that he is an indispensable party or, on the contrary, the Attorney General's ultimate custody is the determinative one; and (3) if so, whether he is within the jurisdiction of the court for purposes of subjection to the writ; and finally, whether a proper allocation of functions as between the courts of the District and the federal courts of the locus of imprisonment requires negation of jurisdiction here.
Interesting and important as these issues are, in view of facts presently to be stated we think we are not required to decide the jurisdictional question on this appeal.
Assuming without deciding that the court below, contrary to its own view, had jurisdiction to issue the writ, we think the result which it reached must be affirmed, though on other grounds than it assigned for its decision.
Whether or not the District Court had a concurrent jurisdiction to issue the writ in the present circumstances, there can be no question that the federal courts sitting in the vicinity of the Atlanta prison had jurisdiction in habeas corpus to hear and determine whether appellant is entitled to the relief which he seeks in this suit.[6]*581 Furthermore, we take judicial notice that they have exercised their jurisdiction in respect to the present appellant and concerning the causes of which he complains here. This appears from the decision in Beard v. Sanford, 5 Cir., 1940, 110 F.2d 527, certiorari denied, 60 S. Ct. 1078, 84 L. Ed. 1405, (1940).[7] Entirely apart from the question whether that decision might be regarded as foreclosing further consideration of the issues there raised by the courts of the District on grounds of res judicata, as to which we express no opinion,[8] we think the fact that appellant has applied for substantially identical relief in another coordinate forum having admitted jurisdiction, practically contemporaneously with making his application here, and that such forum has determined the application adversely to him, should preclude him from having the relief which he seeks in this proceeding. The trial court unquestionably has discretion in such circumstances to decline to exercise its jurisdiction, if it were admitted to exist.[9] Since the grounds upon which appellant alleges that he is unlawfully detained have been determined adversely to his contention and the Supreme Court has refused to interfere with that action, exercise of the District Court's jurisdiction, assuming that it exists, would appear to be improper.
In these circumstances, we think the only appropriate action is to affirm the order entered by the trial court.
The order is affirmed.
NOTES
[1] "Whoever shall in the District set up or keep * * * any kind of gaming table or gambling device * * * or shall induce, entice, and permit any person to bet or play at or upon any such gaming table or gambling device * * * shall be punished by imprisonment for a term of not more than five years." 31 Stat. 1331 (1901), D.C.Code (1929) tit. 6, § 153.
[2] 18 U.S.C. § 753f, 18 U.S.C.A. § 753f; Story v. Rives, 1938, 68 App.D.C. 325, 97 F.2d 182, certiorari denied, 1938, 305 U.S. 595, 59 S. Ct. 71, 83 L. Ed. 377; Beard v. Sanford, 5 Cir., 1938, 99 F.2d 750; Bracey v. Zerbst, 10 Cir., 1937, 93 F.2d 8.
[3] 39 Stat. 711 (1916).
[4] Cf. note 2 supra. The statute, 18 U. S.C. § 753f, 18 U.S.C.A. § 753f, is as follows: "All persons convicted of an offense against the United States shall be committed, for such terms of imprisonment and to such types of institutions as the court may direct, to the custody of the Attorney General of the United States or his authorized representative, who shall designate the places of confinement where the sentences of all such persons shall be served. The Attorney General may designate any available, suitable, and appropriate institutions, whether maintained by the Federal Government or otherwise or whether within or without the judicial district in which convicted. The Attorney General is also authorized to order the transfer of any person held under authority of any United States statute from one institution to another if in his judgment it shall be for the well-being of the prisoner or relieve overcrowded or unhealthful conditions in the institution where such prisoner is confined or for other reasons. (May 14, 1930, c. 274, § 7, 46 Stat. 326.)"
It is not necessary to consider with particularity the authority of the respondents other than the Attorney General. If they or any of them may be said to have custody of the respondent in any sense, it is as representatives of the Attorney General, not independently and it is not immediate as is the warden's. The case has been presented on the theory that either the Attorney General's or the warden's custody is controlling, not that of some intermediate official.
It is assumed, since the record does not disclose the contrary, that the appearance which was entered below was on behalf of the Attorney General in his official capacity.
[5] Cf. note 4 supra.
[6] Cf. Zerbst v. Kidwell, 1938, 304 U.S. 359, 58 S. Ct. 872, 82 L. Ed. 1399, 116 A.L.R. 808; Johnson v. Zerbst, 1938, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461; Aderhold v. Lee, 5 Cir., 1934, 68 F.2d 824, certiorari denied, 1934, 292 U.S. 633, 54 S. Ct. 718, 78 L. Ed. 1486; Bracey v. Zerbst, 10 Cir., 1937, 93 F.2d 8.
[7] See also 5 Cir., 1938, 99 F.2d 750.
[8] The substantial question would seem to be whether the Attorney General and the warden, as his representative for the exercise of custody over the appellant under the statute and his commitment, can be regarded as sufficiently identified in interest to constitute "identical parties."
[9] The federal courts frequently "decline jurisdiction" in habeas corpus proceedings for the reason that the petitioner should first raise his objections in the state court, either in the trial, on appeal or by habeas corpus. Davis v. Burke, 1900, 179 U.S. 399, 21 S. Ct. 210, 45 L. Ed. 249; Gusman v. Marrero, 1901, 180 U.S. 81, 21 S. Ct. 293, 45 L. Ed. 436; Minnesota v. Brundage, 1901, 180 U.S. 499, 21 S. Ct. 455, 45 L. Ed. 639; Ex parte Coy, D.C.W.D.Tex.1887, 32 F. 911; Shapley v. Cohoon, D.C.Mass.1918, 258 F. 752; Groseclose v. Plummer, 9 Cir., 1939, 106 F.2d 311, certiorari denied, 1939, 308 U.S. 614, 60 S. Ct. 264, 84 L. Ed. 513.
Upon the same principle of discretion, we have recently held that we would not exercise our original jurisdiction in habeas corpus, where the petitioner already had addressed the District Court and filed his notice of appeal here, Brosius v. Botkin, ___ App.D.C. ___, 110 F.2d 49, 1940, in reliance upon Whitaker v. Johnston, 9 Cir., 1936, 85 F.2d 199; Ex parte Davis, 9 Cir., 1932, 54 F.2d 723. Cf. United States ex rel. Bernstein v. Hill, 3 Cir., 1934, 71 F.2d 159. See, also, Ex parte Shears, D.C.W.D.Wash., 1920, 265 F. 959. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1550789/ | 114 F.2d 1010 (1940)
In re PENNSYLVANIA CENTRAL BREWING CO. Appeal of LUZERNE COUNTY et al. Appeal of CITY OF WILKES-BARRE.
Nos. 7329, 7373.
Circuit Court of Appeals, Third Circuit.
September 20, 1940.
R. Lawrence Coughlin and Edwin B. Morgan, both of Wilkes-Barre, Pa., for appellants.
*1011 Jerome P. Casey, J. D. Reifsnyder, J. Julius Levy and Stark, Bissell & Reifsnyder, all of Scranton, Pa., for wage claimants-appellees.
Before BIGGS, JONES, and GOODRICH, Circuit Judges.
BIGGS, Circuit Judge.
The appeals at bar arise under the following state of facts.
Pennsylvania Central Brewing Company, the bankrupt, owned the Reichard & Weaver Brewery property located in Wilkes-Barre, Luzerne County, Pennsylvania.[1] The appellees are wage claimants whose claims have been allowed and have been ordered paid. The appellants are municipal corporations of the State of Pennsylvania. Liens for taxes on behalf of the appellants, Luzerne County, Central Poor District of Luzerne County, Luzerne County Institution District, and the City of Wilkes-Barre, were duly recorded. The liens on behalf of the first three appellants amount to $6,141.27; those of the City of Wilkes-Barre amount to $8,808.23. Luzerne County is the collector for itself and for the two appellants which are named second and third, respectively, while the City of Wilkes-Barre is its own collector.
Upon December 18, 1934, a petition for the reorganization of Pennsylvania Central Brewery Company was filed in the United States District Court for the Middle District of Pennsylvania pursuant to the terms of Section 77B of the National Bankruptcy Act, as amended. 48 Stat. 911, 11 U.S.C. A. § 207. The following November the special master recommended the liquidation of the bankrupt's estate and upon January 6, 1936 a rule issued upon all creditors, stockholders and others in interest to show cause why a sale of the property of the bankrupt should not be made by the trustees free and clear of all liens and encumbrances. Certain objections to the proposed sale having been overruled, upon July 16, 1936, an order was entered by the court directing the liquidation of the estate in the possession of the trustees in bankruptcy, the sale to be conducted in accordance with recommendations made by the special master. On February 20, 1939, the real estate and buildings of the Reichard & Weaver Brewery were sold for the sum of $16,000 free and clear of all liens and encumbrances, in accordance with the order of July 16, 1936. On January 4, 1940 the special master filed a report in which he recommended that the claims of the appellants be relegated to a position of payment after administration costs and wage claims. The effect of this recommendation, if carried out, would be to cause expenses of administration and the wage claims to be paid, leaving no further funds in the hands of the trustees for payment of the liens of appellants. Exceptions filed by them were dismissed after hearing by the District Judge who upon January 22, 1940 directed the trustees to distribute the assets in accordance with the master's report. The appeals at bar followed.
The court below decided, 30 F. Supp. 930, that the word "taxes" as used in Section 64 of the Bankruptcy Act, as amended by the Chandler Act, 11 U.S.C.A. § 104, does not embrace perfected tax liens which are valid statutory liens laid on in accordance with state law.[2] It held that such liens are entitled to payment in full pursuant to Section 67, sub. c, 11 U.S.C.A. § 107, sub. c., ahead of the priorities set up by Section 64, and out of the proceeds of the sale of the bankrupt's property diminished only by the actual expenses of preserving the property and by administrative expenses applicable to its sale. The learned District Judge thereupon held that the proceeds from the sale of the Reichard & Weaver Brewery Company, viz., $16,000, would be liable for the taxes assessed against the particular property, but not for the taxes assessed generally against the bankrupt. He found, however, that the appellants had acquiesced in a course of administration by the trustees which made it impossible to ascertain the administrative expenses to be charged specifically against the sale of the Reichard & Weaver real estate and cited as an example of such acquiescence that personal property at the Reichard & Weaver plant had been sold along with the personal property in the E. Robinson plant at Scranton. The District Judge held that the appellants had waived their rights to have *1012 charged against the $16,000 fund the expenses of selling that real estate alone, and concluded that they had in effect waived their rights to liens against the fund.
The appellees in their argument before us do not endeavor to support the position taken by the District Court, but advance a very different theory. They contend that Congress has power under Clause 4 of Section 8, Article I, of the Constitution of the United States to subordinate taxes to wage claims in bankruptcy proceedings, citing United States v. Fisher, 2 Cranch 358, 2 L. Ed. 304; Guarantee T. & T. Co. v. Title Guaranty & S. Co., 224 U.S. 152, 32 S. Ct. 457, 56 L. Ed. 706, and Oliver v. United States, 268 U.S. 1, 45 S. Ct. 386, 69 L. Ed. 817. Such is certainly the law. The appellees go further, however, and while conceding that prior to the provisions of the Bankruptcy Act as added June 22, 1938, c. 575, Sec. 1 et seq., 52 Stat. 840, 11 U.S. C.A. § 501 et seq., there was no provision of law whereby tax liens were subordinated to wage claims, citing City of Richmond v. Bird, 249 U.S. 174, 39 S. Ct. 186, 63 L. Ed. 543, and the decision of this court in Miners Savings Bank of Pittston, Pa. v. Joyce, 3 Cir., 97 F.2d 973, they contend that when the amendments of June 22, 1938 were enacted by Congress, the provisions of Sections 64 and 67 were rewritten to such an end.
The appellees make much of comparatively slight rearrangements within Sections 64 and 67 by the Act of June 22, 1938, 11 U.S.C.A. § 104, sub. a and § 107, sub. b. They point out that by the amendment to Section 64 wage claims were placed for payment immediately after expenses of administration, while taxes legally due a state or subdivision thereof were placed fourth in order of payment, yet the order of payment of wages and taxes remains unchanged over those set up by the Act of May 27, 1926, c. 406, Sec. 15, 44 Stat. 667. They also show that Section 67, sub. b, 11 U.S.C.A. § 107, sub. b of the 1938 Act creates a category of statutory liens "* * * in favor of employees, contractors, mechanics, landlords, or other classes of persons, and statutory liens for taxes and debts owing to the United States or any State or subdivision thereof * * *", and contend that Congress did not distinguish between a statutory lien on real estate and one on personal property, contenting itself by providing that such a statutory lien might be valid against a trustee in bankruptcy. The appellees then refer to subsection c of Section 67, 11 U.S. C.A. § 107, sub. c, providing that statutory liens on personal property and liens "* * * whether statutory or not, of distress for rent shall be postponed in payment to the debts specified in clauses 1 and 2 of subdivision a of section 64 [104] of this Act [Title] * * *", and contend that a distinction in treatment of liens because laid upon real property as distinguished from personal property is a senseless difference which Congress could not have intended.
We cannot accept these contentions. We are of the opinion that Congress has elected to treat personal property and real estate upon different bases. This is clearly one of the purposes of Section 67, sub. c. If there is a statutory lien upon personal property not accompanied by possession or a distress for rent (which is always upon personal property) whether statutory or not, such liens are postponed in payment to expenses of administration and wage claims. If, however, the statutory lien is upon real estate, it is not postponed but is payable strictly pursuant to the provisions of Section 67, sub. b.
Section 67, sub. c does not operate to postpone the payment of statutory liens to general expenses of administration and the wage claims. On the contrary, following the sale of the real property in the case at bar a particular fund charged with the liens was brought into court. The fund thus created must be paid out in satisfaction of the valid liens. To put any other construction upon the amendments to the Act is to do violence to the language of Section 67, sub. c.
The appellees refer to Section 64, sub. a (4) of the Act, 11 U.S.C.A. § 104, sub. a (4), and contend that the provisions of this section operate to prohibit payment of the appellants' tax liens. This is not the case. The prohibition expressed in the section referred to applies where claims for taxes are made against the general assets of the estate, that is to say, assets not subject to liens or encumbrances.
Neither can we accept the contention of the appellees that the wage claims are here protected by liens. There is nothing in the record before us to show that the wage claims were filed in the office of the Prothonotary of Luzerne County in accordance with the law of Pennsylvania. 43 P.S.Pa. § 221. But even if the wage *1013 claims had been filed with the Prothonotary and had thereby been protected by liens, such liens would be secondary to liens for taxes pursuant to the law of Pennsylvania. 53 P.S.Pa. § 2022.
We are unable to agree with the contentions of the appellees, nor can we concur in the views expressed by the learned District Judge. Basing his conclusions upon findings of the special master that the tax assessments and tax liens against the estate (taxes being due the Commonwealth of Pennsylvania, the County of Lackawanna, the City of Scranton and others, as well as the appellants) could not be broken down either as to respective amounts or respective properties, he held in effect that no tax lien, whether county or state, could be paid from the $16,000 fund. The parties stipulated, however, that the Reichard & Weaver real estate was the only real estate of the bankrupt located in Luzerne County at the time of the sale. It was also stipulated that the county and poor taxes of Luzerne County and the Wilkes-Barre city tax were liens duly filed with the commissioners of that county. Such were first liens upon that real estate pursuant to the provisions of the Pennsylvania Act of May 16, 1923, P.L. 207, Sec. 2, 53 P.S.Pa. § 2022, precisely as taxes due the Commonwealth were first liens upon all property of the bankrupt in Pennsylvania under the Pennsylvania Act of April 9, 1929, P.L. 343, Sec. 1401, 72 P.S.Pa. § 1401. Upon the very inadequate record of the cases at bar, however, we cannot tell with accuracy what tax claims are entitled to payment from the fund procured by the sale of the Reichard & Weaver real estate in preference to other tax claims. Since no other taxing bodies than municipalities located in Luzerne County have appealed, it might be concluded that they alone are legally interested in the fund. This is a matter which must be determined in the court below.
Nor do we accept the proposition that the various tax liens cannot be broken down so that it can be determined on what particular properties or the proceeds thereof the tax liens lie. If these facts cannot be ascertained on the existing record, further hearings must be had for the purpose of clarification. Real estate should not be sold by a court of bankruptcy unless the rights of parties to the fund to be created can be ascertained. Liens are property rights and may not be divested as a matter of procedure. See Britton v. Western Iowa Co., 8 Cir., 9 F.2d 488, 490, 45 A.L.R. 711. Claims not secured by liens may not be advanced over lien claims tied to a fund because the conditions governing the payment of the tax liens are not entirely clear.
The District Court also concluded that the appellants could not object to the course of payment proposed in the master's report, the proceeds of the sale of the Reichard & Weaver real estate being made subject to general administration expenses, because they had acquiesced in the method by which the properties of the bankrupt were sold. The example cited by the learned District Judge seems inapposite for we can perceive no reason why the fact that the personal property at the Reichard & Weaver plant was sold with the property and real estate of the E. Robinson plant should militate against the right of the appellants to be charged only with those expenses of administration applicable to the preservation and sale of the Reichard & Weaver real estate. If trustees in bankruptcy are to sell property, they must do so in such a way that the expenses of sale of a particular property may be allocated to the proceeds of the sale of that property. Otherwise they will be held to be surchargeable.
The order of the District Court of January 22, 1940 is reversed and the cause is remanded with directions to proceed in conformity with this opinion.
NOTES
[1] The bankrupt had also owned the John Arnold Brewery and its real estate in Hazleton, in Luzerne County. This property passed out of the estate by sale and the foreclosure of a purchase money mortgage.
[2] Act of 1931, May 29, P.L. 280, sec. 4, as amended, 1933, May 22, P.L. 940, sec. 1, 1939, June 20, P.L. 498, sec. 2, 72 P.S. Pa. § 5971d; and Act of 1923, May 16, P.L. 207, sec. 2, 53 P.S.Pa. § 2022 | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1550809/ | 374 B.R. 781 (2007)
In re John Robert BURKE, Debtor.
Albert Hoffman, Chapter 7 Trustee, Plaintiff,
v.
Richard Greene, Joseph J. Blackman, Firstbank of Lakewood Janet Adams, in her capacity as Clerk of the District Court, Denver District Court, State of Colorado, and Las Margaritas, Inc., Defendants.
Richard Greene, Plaintiff,
v.
John Robert Burke, Defendant.
Bankruptcy No. 98-25466-MER, Adversary Nos. 98-01754-SBB, 99-01117-HRT.
United States Bankruptcy Court, D. Colorado.
August 23, 2007.
*782 *783 Eldon E. Silverman, Denver, CO, for Plaintiff.
Richard L. Shearer, J. Alan Call, Stephen T. Johnson, Neil L. Tillquist, Robert M. Dwyer, Denver, CO, Robert R. Graft, Englewood, CO, for Defendant.
FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER
SIDNEY B. BROOKS, Bankruptcy Judge.
THIS MATTER comes before the Court on the second phase of this adversary proceeding by way of John Robert Burke's ("Mr. Burke") Motion for Hearing on Objection to Claim of Richard Greene ("Mr. Greene") filed September 15, 2004 (Docket # 184) and the Objection to Claim of Richard Greene filed in the main bankruptcy case on July 9, 2004 (Docket # 214 in case 98-25466-MER).[1] In the first phase of this adversary proceeding, on September 2, 2004, this Court entered it's Findings of Fact, Conclusions of Law and Order denying Mr. Greene's claims seeking exception to discharge of his claims against Debtor pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4), and (a)(6) (Docket # 180).[2] The September 2, 2004, Order concluded the first phase of this adversary proceeding and further ordered that either party may file a motion on or before September 15, 2004, to request a hearing on any remaining issues that must be determined in this adversary proceeding.
A trial on the Objection to Claim was conducted July 26-28, 2006, August 15, 2006 and December 8, 2006. Mr. Greene appeared and was represented by his counsel, Richard L. Shearer and J. Allan Call. Mr. Burke also appeared and was represented by his counsel, Maria Flora. After the trial, at the request of the Court, the parties submitted proposed findings of fact and conclusions of law in February of 2007. The Court, having reviewed the file, having considered the arguments of counsel, having considered the proposed findings of fact and conclusions of law submitted by counsel, and being advised in the premises, makes the following Findings of Fact, Conclusions of Law and Order.
I. Factual and Procedural Background
The dispute between Mr. Burke and Mr. Greene has been protracted and complicated, with history stretching back 17 years in a business venture in Cabo San Lucas, Mexico in 1990, the Baja Cantina. The business venture resulted in litigation in Mexico, Denver District Court and the U.S. Bankruptcy Court.
To the degree and extent this Court's previous findings of fact, conclusions of law, decisions and opinions, as designated, are relevant to this ruling, the Court adopts and incorporates them herein: (a) Minutes of Proceeding and Oral Ruling on the record dated August 20, 2004 (Docket # 178),[3] (b) Findings of Fact, Conclusions of Law and Order dated September 2, 2004 (Docket # 180),[4] (c) Memorandum Opinion and Order Denying Relief Sought by Mr. Greene dated March 18, 2005 *784 (Docket # 230),[5] and (d) Findings of Fact, Conclusions of Law and Order dated May 27, 2005 (Docket # 276).[6]
As a general observation, certain unusual features of this case make it particularly difficult to craft a cogent and carefully delineated opinion. These features include: the passage of about 15 years since much of the dispute between Mr. Burke and Mr. Greene occurred; the inconsistencies and problems intrinsic in the English-Spanish translations of important documents, testimony and depositions; the lack of credibility of both principals in this case, Mr. Burke and Mr. Greene;[7] and the bitter, enduring personal enmity and palpable animosity between these two individuals. The findings of fact and conclusions drawn by the Court are the product of this most unsatisfactory wellspring of history.
For purposes of understanding the history of this dispute and the organization of this opinion, there are three central areas of discussion:
1. The much-disputed $250,000 I.O.U. which forms the initial basis of Mr. Greene's claim of a debt owing to him from the Debtor, Mr. Burke.
2. The hotly-contested subsequent entry of a judgment in a Mexican court against the Debtor and in favor of Mr. Greene for $999,999.00 (dollars) or $999,999.00 (pesos) which forms the basis of the putative foreign judgment on which Mr. Greene has sought to gain recognition, domestication and enforcement of his claim in United States courts.
3. The proceedings in Colorado State District Court immediately preceding Debtor's filing bankruptcy which form the basis of Mr. Greene's claim filed in this Bankruptcy Court.
A. Formation of the business
Mr. Greene and Mr. Burke were the major principals in a start-up business venture to develop and operate a restaurant and cantina, the Baja Cantina, and other pursuits in Cabo San Lucas, Mexico, starting in 1990. Mr. Greene and Mr. Burke were on the board of directors of a U.S. corporation known as 1811 South Downing Street, Inc. which was formed for the purpose of being the parent corporation for the Baja Cantina. A total of $250,000 was invested in the business venture, including $110,000 by Mr. Greene who held 15.4% of the stock. Mr. Burke did not invest any money, but, owned 51% of the business. His ownership interest was acquired, or to be acquired, by his ideas, knowledge, experience and restaurant management ability. A Mexican corporation known as Baja Cantina, S.A. de C.V. was formed at some point by Mr. Burke and was the operating entity for the restaurant which opened in November 1990.
The relationship between, and the transition of financing, administration and operations of the Baja Cantina business from *785 1811 Downing Street, Inc. to Baja Cantina, S.A. de C.V., is contested, confusing and unclear.
Mr. Burke was the CEO and "administrator" the Administrator Unico of the Baja Cantina, and Mr. Greene was an important principal, acting as an assistant administrator and keeping the financial books from about November 1990 to sometime in April to June 1991. While Mr. Burke was the central and driving force behind the ill-starred venture, Mr. Greene was the money-man and "behind-the-scene" organizational man. Mr. Greene also had some control of, or access to, the method and system of keeping the business's books and records, and, intermittently, undertook other activities at and for the business in Cabo San Lucas, until he was no longer working at the Baja Cantina after May 1994.[8]
The precise role, responsibilities and actual activities of Mr. Burke and Mr. Greene relative to the business were never clearly delineated or well-defined. The Court has previously discussed the relative positions and activities undertaken in the business during its operations, 1990-1994, and adopts those findings and conclusions herein. In brief, the Court views Mr. Greene as the more educated, more financially and business savvy, more technically skilled and more sophisticated of the two. By comparison, Mr. Burke was more the restaurant manager, day to day operations director and not steeped in business or financial acumen, and not skilled or sophisticated in either business administration or, for example, automation.
B. The $250,000 I.O.U.
Between November 1990 and the summer of 1992, important problems and disputes were already brewing. On or about July 22, 1992, Mr. Greene, Mr. Burke and another investor, Chris Watts, had a meeting in Cabo San Lucas at Dudley's restaurant regarding several business matters. The written report of this meeting, prepared by Mr. Greene, indicates that the parties discussed: (1) Mr. Greene's concern over money of the Baja Cantina being spent on enterprises other than the Baja Cantina restaurant, (2) the dispute between Mr. Greene and Mr. Burke regarding the payment of a salary to Mr. Burke, (3) reevaluation of company perks for the officers, (4) concern regarding that the company bills were not being paid, but that monies were being withdrawn as salaries, (5) the sale of company stock, (6) that there was an interested party in possibly purchasing part of the Baja Cantina, (7) the possibility of a sale, (8) the question of back pay owed to Mr. Burke and Mr. Greene, (9) the mortgage on the property, (10) a loan by Mr. Watts, (11) concern regarding why the stock in both the Mexican and American corporations had not been issued to everyone, and (12) concern that the Baja Cantina had never held a shareholders meeting.[9]
This meeting evidently resulted in the August 8, 1992, I.O.U. which was ostensibly executed by Mr. Greene (as holder in receipt) and Mr. Burke (as the debtor, as the executive officer of the business and/or individually) in the amount of $250,000.[10] However, not unimportantly, the written report of that meeting does not mention a $250,000 I.O.U. to be signed by Mr. Burke.[11]
*786 Mr. Burke has alleged that he did not sign the I.O.U. In support of this, Mr. Burke testified that he signed several pieces of Baja Cantina letterhead in blank (as he had done on a number of occasions, particularly when he was out of town) and that Mr. Greene typed this I.O.U. on the presigned letterhead. Mr. Chris Watts testified that Mr. Burke did keep letter head signed in blank in the Baja Cantina safe, however Mr. Greene testified that he did not recall Mr. Burke ever doing so.[12] Mr. Watts also testified that at the July 22, 1992 meeting, there was no mention of Mr. Burke having executed, or needing to execute in the future, a $250,000 promissory note.[13] Mr. Burke asserts that even if the Court finds that he did indeed sign the I.O.U., that the I.O.U. is not a personal obligation, but rather a corporate obligation of the Baja Cantina. Mr. Greene testified that the I.O.U. was originally drafted by Mr. Burke and obligated only Mr. Burke individually, but that after discussions between the two, that they agreed that both Mr. Burke individually and the Baja, Cantina, S.A. de C.V. would be liable on the I.O.U.[14] Mr. Burke testified that he does not own a computer, does not type, and thus the I.O.U. was prepared by Mr. Greene.[15] The Affidavit that Mr. Greene signed and turned into the police in Cabo San Lucas states that Mr. Greene typed out the I.O.U.[16]
The parties presented two expert witnesses during the trial of this matter on December 8, 2006. Mr. Burke called Richard Lewis. Mr. Lewis testified that he spent about 30 minutes in Cabo San Lucas reviewing the I.O.U.[17] While there he photographed the I.O.U. and concluded that the signature line on the I.O.U. was above the signature. Thus, corroborating Mr. Burke's assertion that he signed several pieces of letterhead stationery in blank and that Greene typed the I.O.U. after the fact on the presigned letterhead. This Court observes, however, that, while credible, Mr. Lewis's examination of the document seemed hurried and not optimal.
Mr. Greene's expert, Charla Janney, on the other hand, spent considerably more time examining the document and undertook a seemingly more intensive and complete analysis of the note; she utilized a Fuji S1 6 megapixel camera with two lenses, one being a single lens that goes from 28 to 105 millimeters and another 60 millimeter lens for close up work; she had better lighting, and ancillary equipment.[18] She utilized a stereo microscope to examine the original document.[19] Her expert opinion was that the signature was over the signature line.[20] Thus, she concluded *787 the signature of Mr. Burke was placed on the document after it was prepared and submitted, and that the note was, thus, signed by Burke.
C. The Mexico Court Proceedings Resulting in a Judgment
In August 1993, Mr. Greene filed a criminal complaint against Mr. Burke with the Cabo San Lucas police.[21] He alleged wrongdoing by Burke in the management and operations of the restaurant. It does not appear from the evidence presented to the Court that there were any formal charges, trial or conviction based upon this criminal complaint. Mr. Burke maintains the charges were trumped up and intended to intimidate and extract concessions from him by Mr. Greene.
On or about November 10, 1993, Mr. Burke, Mr. Greene and other investors held a stockholders meeting of 1811 South Downing, Inc. at the Coronado Bay Resort in San Diego, California. While a variety of topics were discussed, the Minutes of this meeting do not reflect any discussion of a criminal complaint against Mr. Burke or the Baja Cantina and the Minutes do not reflect any discussion of the $250,000 I.O.U.[22] Further, Mr. Watts testified that at the November 10, 1993 meeting, there was no mention of an I.O.U. executed by Mr. Burke.[23]
And, an "Investigative Report," surreptitiously requested by Mr. Greene and conducted by private investigator Mick W. Omun, does raise allegations of civil and criminal violations of the laws of the State of Colorado, the United States and Mexico and it references that Mr. Burke signed documents on August 8, 1992, but does not specifically mention the $250,000 I.O.U.[24] It is unclear if this Investigative Report was presented to those in attendance at the November 10, 1993 meeting.
The Report and Mr. Omun are of dubious origins and value. Consequently, the Court does not find Mr. Omun's "Investigative Report" to have much weight or credibility. He was hired by Mr. Greene to investigate Mr. Burke and others. His "Investigative Report" is amateurish, incomplete at times, unnecessarily malicious towards Burke, and contains superfluous materials.[25] For example, the "Investigative Report" is not all in the same font typeface and font size, there are numerous misspellings, the report pages are not numbered, the report references attachments, but the attachments are not in the exhibit, the report includes obscure facts regarding Mr. Greene's and Mr. Burke's childhood and affairs that Mr. Burke allegedly had in Mexico. And there are 2 documents that follow the report. They are both two pages long and are both entitled, "General Agreement." The Omun report is dated October 5, 1993 and the two unsigned "General Agreements" are dated November 1994, so, evidently, they are not part of the October 1993 Investigative Report.
On May 19, 1994, Mr. Greene filed a lawsuit in the Court of First Instance, in Cabo San Lucas, B.C.S., Mexico. The case is captioned Leonel Castro Cadena[26] v.s. John R. Burke y/o Baja Cantina, S.A. *788 de C.V. and was assigned case number 296/994.[27]
On November 4, 1994, Mr. Greene had executed a Mexican legal procedure called an "embargo," which seized Baja Cantina assets.[28] Mr. Burke testified that Mr. Greene, along with approximately 15 people, confronted him with the embargo from a court and seized the Baja Cantina cash box.[29] Mr. Greene admits that the embargo was against the Baja Cantina only and not against Mr. Burke personally.[30] Mr. Burke claims he was not aware of the lawsuit initiated by Mr. Greene, or the existence of the I.O.U., until the embargo on November 4, 1994, and that he was never served with process or otherwise notified of the May 1994 lawsuit.[31] Mr. Watts also testified that he was not aware of the lawsuit by Mr. Greene or the $250,000 I.O.U. until the embargo.[32] In connection with both the May 1994 lawsuit and the November 1994 embargo, Mr. Burke alleges that Mr. Greene bragged about bribing a judge to enter the $250,000 I.O.U. into the court system without Mr. Burke being notified and to obtain the embargo on the Baja Cantina.[33] Mr. Greene denied ever paying a bribe to anyone.[34]
Mr. Greene testified that in between the time frame of filing the lawsuit (on May 19, 1994) and the time of the embargo (on November 4, 1994) that there were no hearings and no court proceedings that he was involved in.[35]
Curiously, the parties introduced a letter typed and signed by Mr. Greene dated May 25, 1994, that was sent to the shareholders of the Baja Cantina. It is six pages in length and does not mention the alleged May 19, 1994 lawsuit filed by Mr. Greene.[36]
On January 6, 1995, the Mexican Court conducted a proceeding wherein a Settlement Agreement was executed by Mr. Greene, Mr. Burke and a representative of Thai Pan Dos, Inc.[37] and made a judgment of the Mexican Court (the "Mexican Judgment"). The Settlement Agreement was drafted by Mr. Greene's attorney at the time, Leonel Castro.[38] The Mexican Judgment *789 is captioned in Spanish as "Richard Greene v. Baja Cantina S.A. de C.V. y Otro"[39] and in one English version as "Richard Greene v. Baja Cantina S.A. de C.V."[40] and in the other English version as "Richard Greene v. Baja Cantina SA de C.V. and Other.[41] As more fully set forth below, Mr. Burke disputes that he is personally liable, or was intended to be personally liable, on the Mexican Judgment and that the Mexican Judgment was obtained by fraud.
A factor here is that the English and Spanish translations of the Settlement Agreement differ.[42] Mr. Burke/Baja Cantina are referred to in the singular as "Respondent" and "Defendant." The Settlement Agreement has various curiosities and inconsistencies, not the least of which are the status of the obligor (Baja Cantina S.A. de C.V. and/or John R. Burke); the one-hundred-twenty $8,333.00 promissory notes contemplated but never produced; absence of signatures on the English version, but signatures on the Spanish version only, etc. The Court in attempting to ascertain what occurred and who is obligated here, has reviewed its notes from the trial, the documents and the telephonic depositions of Fernando Garibay, Clicerio Mercado Hernandez and James Sacco.[43]
Fernando, Garibay, an attorney in Mexico, was retained by Mr. Greene after the underlying events of this case. His testimony is that the Settlement Agreement obligates Mr. Burke, individually. The original case was filed against "Mr. Burke and Baja Cantina. The Mexican Judgment is against both and there was no appeal by Mr. Burke of this judgment. Mr. Garibay's testimony would reflect that the Mexican Judgment is for 999,960 U.S. Dollars, not Pesos. His review is forensic and strictly retrospective in nature and his testimony's weight and persuasiveness is thereby diminished.[44] Moreover, the questions presented to him during the telephonic deposition are replete with leading questions and testimony that is, for the most part, presented by Mr. Greene's other counsel, Mr. Shearer.
Clicerio Mercado Hernandez is a businessman in Mexico who worked with the Baja Cantina and the parties herein. The Court has examined both the transcript of his video deposition and the video deposition itself and specifically finds Mr. Hernandez to be credible. His testimony demonstrates that the events surrounding the settlement and the inconsistent terminology in the various agreements, various copies and iterations thereof, and the Mexican Judgment reflect the hopeless and seemingly irreconcilable problems in the case. Key to his testimony is that he maintains that the Mexican Judgment was procured by a $20,000.00 bribe.[45] In addition, *790 Mr. Hernandez testified that the Mexican Judgment is for 999,960 pesos, not U.S. Dollars.[46] He testified that, in Mexico, Pesos is referred to as an S with a single line through it, i.e. $.[47] American Dollars, on the other hand, are designated by an S with two lines through it, i.e., $.[48] Moreover, because the parties were before a Mexican Court it was understood that it was in Pesos.[49]
D. Denver District Court
On April 3, 1998, Mr. Greene filed his Verified Petition Seeking Registration, Recognition and Enforcement of Foreign Judgment ("Verified Petition") in the District Court, Denver County, State of Colorado, Richard Greene v. John R. Burke, et al., Case No. 98 CV 2831 ("Denver District Court").[50] The Verified Petition was filed "pursuant to the Uniform Enforcement of Foreign Judgments Act, § 13-53-101, C.R.S., et seq. and other applicable law."
" The Denver District Court recognized and domesticated the Mexican Judgment and issued a Transcript of Judgment on April 13, 1998 ("Colorado Judgment").[51] Mr. Greene recorded a certified copy of the Transcript of Judgment with the Denver County Clerk and Recorder's Office, thereby effecting a judgment lien on Mr. Burke's real property in Denver County. From the date of the entry of the Colorado Judgment on April 3, 1998, until the time Mr. Burke filed bankruptcy on October 30, 1998, post-judgment collection proceedings took place. Specifically, the Denver District Court issued garnishments at Mr. Greene's request, and accepted garnisheed funds from rents paid by a commercial tenant of Mr. Burke into the Registry of the Court.
On April 23, 1998 (20 days after the Verified Petition was filed), Mr. Burke filed a Verified Answer to the Verified Petition raising jurisdictional and procedural defects and fraud as defenses.[52] Specifically, the Verified Answer states as follows:
1) This matter was improperly brought before the Court under COLO.REV. STAT. § 13-53-101 et seq., the Uniform Enforcement of Foreign Judgments Act. That Act relates specifically to judgments which are "of a court of the United States or of any other court which is entitled to full faith and credit in this state." The matter before the Court involves an allegedly final judgment from Mexico. Judgments from foreign nations are not entitled to the same constitutional protection of full faith and credit as judgments from other states in the Union. This matter would properly have been brought under COLO.REV.STAT. § 13-62-101 et seq., the Uniform Foreign Money Judgments Recognition Act.
2) The "judgment" entered in Mexico was obtained by fraud, and is therefore not entitled to enforcement in this state.[53]
3) When Mr. Burke agreed to settle this matter on behalf of the Baja *791 Cantina, he did so based on a translation of the proceeding in which he was told that the amount owed was 990,000 Mexican pesos. When the order was reduced to a writing, however, the amount owed was 990,000 U.S. dollars. This error amounts to a material mistake which may render the "agreement" invalid. However, this issue should be pursued in its original forum.
4) It is common knowledge that fraudulent conduct, bribery, corruption and lawlessness are rampant in the Mexican court system. Such judgments are not offered by an "impartial tribunal," and are therefore not entitled to recognition or enforcement.
5) The "judgment" entered in Mexico did not ensure basic due process protections guaranteed to parties to a civil action in the courts of Colorado. For example, Mexican rules for procedure do not require that a defendant receive personal service to obtain jurisdiction over him. Many other such due process violations occur in Mexican courts. As a result, a judgment obtained without these due process protections is not conclusive under Colorado law and may not be enforced.[54]
6) Mr. Burke was not named in an individual capacity in the Mexican case. His signature on the paperwork (submitted by the Plaintiff as a "final judgment") is in his capacity as an officer of the corporation, the Baja Cantina, S.A. De C.V. Despite the fact that he was not a party to the action, the Plaintiff attempts to enforce this judgment against Mr. Burke in an individual capacity. In essence, the Plaintiff is attempting to pierce the corporate veil of a Mexican corporation in a Colorado courtroom. It is inappropriate for the courts in Colorado to attempt to interpret when and how an individual may be liable for the debts of a corporation in Mexico. However, if the court decides that it may determine such an issue, it is against the public policy of the State of Colorado to attach personal liability for the debts of a corporation.
7) Mr. Burke denies that a final judgment was been entered against him.
8) Mr. Burke denies that the amount of outstanding debt, if any, is 999,960.00 U.S. Dollars.
9) Mr. Burke denies that the "judgment" has not been paid in full or in part.
10) Mr. Burke denies that the last known post office address of the Baja Cantina, S.A. De C.V. was in his care.
Mr. Greene claims that Mr. Burke's Verified Answer was untimely pursuant to COLO.REV.STAT. § 13-53-104(3) which states that "No execution or other process for enforcement of a foreign judgment filed under this article shall issue until ten days after the date the judgment is filed." This is the only time period mentioned in either the Enforcement Act or the Recognition Act. Section 13-53-104(3) does not state that a defendant must file an answer within 10 days. Rule 12(a) of the Colorado Rules of Civil Procedure provides that, "A defendant shall file his answer or other response within twenty days after the service of the summons and complaint on him." Mr. Burke's Verified Answer could also be construed as a Motion for Relief From Judgment pursuant to Rule 60 of the Colorado Rules of Civil Procedure. Therefore, this Court finds that Mr. *792 Burke's Verified Answer was a timely response to the Verified Petition.
The Denver District Court set Mr. Burke's Verified Answer for a hearing scheduled to take place on July 2, 1998. This hearing was continued at the request of Mr. Burke and the Denver District Court rescheduled the hearing for November 5, 1998. Mr. Burke filed his Chapter 11 Petition prior to the date set for the Denver District Court to hear the matter, therefore, the matter was never resolved or finalized in Denver District Court.
E. Bankruptcy Proceeding
On October 30, 1998, Mr. Burke filed his voluntary petition for bankruptcy relief under Chapter 11 of the Bankruptcy Code, Case No. 98-25466. Soon thereafter, on December 7, 1998, Mr. Burke filed an Adversary Proceeding against Richard Greene, Adv. Pro. 98-1754. On February 23, 1999, Mr. Greene filed a Complaint to Determine Dischargeability against Mr. Burke pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4) and (a)(6), Adv. Pro. 99-1117. On June 2, 1999, these two adversary proceedings were consolidated under Adv. Pro. 98-1754, and are summarized below. Mr. Burke's Chapter 11 proceeding was converted to Chapter 7 on January 25, 2000 and Albert Hoffman was appointed as the Chapter 7 Trustee. Mr. Burke was thereafter discharged on April 28, 2000.
1. Hoffman v. Greene, et al, Adversary Proceeding, 98-1754
On May 16, 2000, the Chapter 7 Trustee was substituted as plaintiff in place of Mr. Burke in Adversary Proceeding 98-1754. On. June 2, 2000, the Chapter 7 Trustee filed an Amended Complaint including the following claims for relief: (1) Avoidance of Judicial Lien Security Interest by Trustee Under Section 544, (2) Objection to Allowance of Claims and. Interests of Mr. Greene Pursuant to Section 502, (3) Execution and Garnishment Preferential Transfer Under Section 547(b), (4) Subordination of Claim Pursuant to Section 510(b), (5) Equitable Subordination Under Section 510(c)(1) and (2), (6) Effect of Distribution Under Section 508(a), and (7) Declaratory Judgment that Funds Held by the Clerk are Property of the Estate and Should be Turned Order to the Trustee Pursuant to Section 543(b).[55]
On June 23, 2000, the Chapter 7 Trustee filed a Motion for Partial Summary Judgment in Adversary Proceeding 98-1754.[56] The Motion for Partial Summary Judgment sought a determination that the Denver District Court did not have subject matter jurisdiction over the Mexican Judgment and that the judgment could not be recognized and enforced in the United States without a prior hearing. Mr. Greene filed a Response and Cross Motion for Summary Judgment.
On August 28, 2000, the late Bankruptcy Judge Donald E. Cordova issued his Order Regarding Cross Motions for Partial Summary Judgment ("Summary Judgment Order").[57] Judge Cordova concluded that, with respect to the arguments regarding res judicata, full faith and credit, and comity made by Mr. Greene:
the issues of fairness and due process regarding the Mexican judgment have not yet been resolved, so the Court lacks sufficient information to determine whether the judgment may be recognized under Hilton v. Guyot[58] principles of comity. Since the judgment is not *793 presently recognized, it may not presently be enforced, nor was its enforcement proper on the date of the filing of the bankruptcy petition. Similarly, other factual issues surrounding the Mexican judgment must await resolution at trial. With the exception of finding that enforcement of the Mexican judgment, and hence the security interest, was not valid as of the date of filing, the Court finds that all other issues raised by the parties' retain significant questions of fact to be determined at trial, making summary judgment inappropriate.
Judge Cordova's ruling appears to state that the Mexican Judgment was not then presently recognized since the hearing scheduled for November 5, 1998, was stayed by the bankruptcy filing. And that since there was no proper recognition, there could then be no proper enforcement, and thus no proper lien. Judge Cordova granted the Trustee's motion for summary judgment, in part, however, on the assertion that Mr. Greene had no security interest in Mr. Burke's property based upon the Colorado Judgment.
On September 5, 2000, Mr. Greene appealed Judge Cordova's Summary Judgment Order to the United States District Court for the District of Colorado. On October 7, 2002, Judge Robert E. Blackburn issued his Order on the appeal.[59] Specifically, Judge Blackburn ordered:
1. That the Bankruptcy Court DID NOT ERR as a matter of law in determining that it had jurisdiction to hear the trustee's challenge to the Colorado Judgment and his collateral attack on the Denver District Court's enforcement of the Mexican Judgment and issuance of a corresponding Colorado Judgment;
2. That the Bankruptcy Court ERRED as a matter of law by determining, prior to resolving the validity of the underlying Mexican Judgment and the Colorado Judgment, that Creditor's enforcement of the Mexican Judgment, and the concomitant lien, was not valid as of the date of the filing;
3. That the Bankruptcy Court's finding that Creditor's enforcement of the Mexican Judgment and resultant lien was not valid as of the date of the filing is REVERSED AND REMANDED with instructions to resolve the validity of both the Mexican and Colorado Judgments; and
4. That until such resolution, the Colorado Judgment remains as a putatively valid judgment lien against the estate of the Debtor.
Judge Blackburn discussed the facts regarding the filing of the Verified Petition and Transcript of Judgment, and states at page 10 of his Order:
Therefore, Creditor had a valid lien upon the recording of the Transcript of Judgment with the clerk on April 13, 1998. The Bankruptcy Court erred as a matter of law by concluding otherwise without first resolving the issue of whether or not the Mexican and Colorado Judgments are valid. Until it concludes otherwise, the Mexican Judgment remains valid, as does the Colorado Judgment recognizing the Mexican Judgment and the subsequent Transcript of Judgment. It remains to be seen whether or not the Bankruptcy Court will ultimately conclude that the Colorado State Court improperly entered a judgment that it did not have the authority to recognize or conclude that the Mexican Judgment was so riddled with fraud that it must be set aside. Until the Bankruptcy Court renders such findings of fact and conclusions of law, however, the Transcript of Judgment *794 stands and the Colorado Judgment remains a valid judgment lien. Simply put, the Bankruptcy Court got it backwards; it should have first resolved whether the Colorado and Mexican Judgments were valid before voiding the otherwise properly recorded lien. The transcript of judgment is not presently invalid or ineffectively simply because it may later be voided through by a determination that the underlying Mexican Judgment should not have been recognized by the Denver District Court.
On June 10, 2004, a settlement was reached between the Trustee and Mr. Greene. Subsequently, on June 23, 2004, the Trustee and Mr. Greene entered into a written formal Settlement Agreement. Bankruptcy Judge Michael E. Romero approved the Settlement Agreement on July 20, 2004. Thereafter, the Trustee and Mr. Greene memorialized an Amendment to the Settlement Agreement and the Court, on December 30, 2004, entered an Order Adopting the Amendment to the Settlement Agreement. Pursuant to the terms of the Settlement Agreement, the Trustee and Mr. Greene settled all rights and claims the Trustee may have had to challenge the Mexican Judgment and the Colorado Judgment on behalf of the bankruptcy estate of Mr. Burke. The Settlement Agreement did not resolve the disputes between Mr. Burke and Mr. Greene. At the July 20, 2004 hearing, when the Settlement Agreement was approved, Judge Romero stated:
As we indicated at the beginning, this Court is not making a ruling as to the right of Mr. Burke to individually assert and individually challenge the claim of Mr. Greene. That is not before the Court today. It is not going to rule on that today. Presumably, Judge Brooks may render a ruling with respect to that on the adversary proceeding next week. But I am not even going to (inaudible) to guess on that. i just want to make it clear, I am not ruling on that today.
The Settlement Agreement also explicitly states that it does not resolve the disputes between Mr. Burke and Mr. Greene, as paragraph 6 states as follows:
The Trustee will take no legal position regarding, and will not seek to intervene with respect to, Greene's non-dischargeability claim against Burke in the Adversary Proceeding, . . . This Agreement does not include Burke as a party, and is not intended to release any legal claim that Greene has against Burke, including but not limited to the non-dischargeability claim, . . .
Mr. Burke has in fact continued to pursue, and in this adversary proceeding continues, his objection to Mr. Greene's bankruptcy claim. This Court previously found that Mr. Burke has standing to object to Mr. Greene's bankruptcy claim.[60]
2. Greene v. Burke, Adversary Proceeding 99-1117
On February 23, 1999, Mr. Greene filed a Complaint to Determine Dischargeability against Mr. Burke pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4) and (a)(6). A trial on the Section 523 claims was conducted on July 27-28, 2004, and August 5, 2004. Mr. Greene appeared and, was represented by his counsel, Richard L. Shearer and Robert *795 Anderson. Mr. Burke also appeared and was represented by his counsel, Maria Flora.
On September 2, 2004, this Court issued Findings of Fact, Conclusions or Law and Order denying Mr. Greene's claims seeking exception to discharge pursuant to 11 U.S.C. § 523(a)(2)(A), (a)(4) and (a)(6).[61] Regarding the allegations of false representations or false pretenses under 11 U.S.C. § 523(a)(2)(A), the Court found that Mr. Greene did not carry his burden of proof to show a false representation made by Mr. Burke with intent to deceive, and justifiable reliance on the part of Mr. Greene, causing a loss. In making this finding, the Court noted that Mr. Greene participated in the events that caused all parties to lose in the venture and that any reliance was not justified. With respect to the allegations under 11 U.S.C. § 523(a)(4) for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny, the Court found that Mr. Burke was not a fiduciary; there was no express or technical trust and there was no showing of any trust res. Further, the Court found that Mr. Burke did not have exclusive access to, or control of the investment funds, business assets, proceeds, and cash. On the third claim under 11 U.S.C. § 523(a)(6), the Court found that Mr. Greene did not carry his burden of proof as the evidence did not show conversion or a wilful or malicious injury, and instead reflected neglect, confusion, and irresponsible management by both Mr. Burke and Mr. Greene.
As noted above, the September 2, 2004, Order concluded the first phase of this adversary proceeding and further ordered that either party may file a Motion on or before September 15, 2004, to request a hearing on any remaining issues that must be determined in this adversary proceeding. On September 15, 2004, Mr. Burke filed a Motion for Hearing on Objection to Claim of Richard Greene. On April 15, 2005, this Court granted Mr. Burke's Motion for Hearing on Objection to Claim of Richard Greene. A trial on the claim objection was conducted on July 26-28, 2006, August 15, 2006 and December 8, 2006. This Court now makes the following findings of Fact, Conclusions of Law and Orders regarding the validity of the Mexican and Colorado judgments.
II. Validity of the I.O.U.
Mr. Burke alleges that he did not sign the I.O.U. As set forth above, the Court believes he likely did sign the I.O.U. The Court reaches this conclusion based upon the expert testimony of Charla Janney. But that does not end this Court's inquiry. The I.O.U. itself is also subject to seemingly endless inconsistencies, different interpretations, and problematic features. The I.O.U. does not appear to solely bind Mr. Burke, individually. It does, however, seem intended to bind the Baja Cantina, S.A. de C.V.[62]
Mr. Green claims that the I.O.U. followed a July 22, 1992 meeting in which Mr. Green, Mr. Burke and Mr. Watts had attended. The written report of the meeting makes no mention of the I.O.U. Mr. Green was the drafter of the meeting report. Moreover, he was the drafter of the I.O.U.
*796 The Court concludes that, indeed, the I.O.U. was likely signed by Mr. Burke, but the content, circumstances surrounding execution, failure to timely disclose the note to other shareholders, and disputed testimony diminishes the weight and confidence of such a conclusion.
Nonetheless, by a preponderance of the evidence, Mr. Greene has proven the existence of the I.O.U., and that it was signed by Mr. Burke. That leaves the important question of who/what is liable on that I.O.U. I conclude that the business, Baja Cantina, S.A. de C.V., was intended to be and is liable on the note. I cannot conclude the same with respect to Mr. Burke. Mr. Greene has not proved, by a preponderance of the evidence, that Mr. Burke was intended to be or is liable on the I.O.U.
III. Validity of the Colorado and Mexican Judgments
The central issues here and the mandate issued by Judge Blackburn are to examine the Mexican Judgment and the Colorado Judgment and determine the propriety, legitimacy, legal sufficiency and enforceability of the judgments.
Throughout the bankruptcy proceeding, Mr. Burke has claimed that the Mexican court did not have personal jurisdiction over him; that the Mexican Judgment does not bind him personally, but only the Baja Cantina S.A. de C.V.; that the Mexican Judgment was procured by fraud (including an inaccurate oral translation at the proceeding regarding the currency and liability, that the proceedings were held after regular court hours, and that there were no oaths rendered or testimony taken); and, that the Mexican Judgment was procured by Mr. Greene bribing the Mexican judge. Burke further maintains that Mr. Greene's attempt to domesticate the Mexican Judgment in Colorado was deficient, lacking due process, incomplete, and improperly brought before the Denver District Court under Colorado's Enforcement Act rather than Colorado's Recognition Act.[63]
A. Validity of Mexican Judgment
Mr. Burke alleges that the judge presiding over the Mexican lawsuit was given a cash bribe and later became an attorney for Mr. Greene. This very serious allegation and irregularities in the Settlement Agreement/judgment process are supported, in whole or in part, by two other witnesses, Mr. Mercado and Mr. Watts.[64] Moreover, Greene does not effectively refute this.
In addition to the testimony of Mr. Burke, Mr. Mercado, and Mr. Watts and the previously identified curiosities, and problems with the Settlement Agreement the circumstances surrounding the entry of the Mexican Judgment raises suspicion and doubt.
First, the Mexican court proceedings were held after regular court hours.[65] Mr. Burke testified that the actual signing of the Settlement Agreement was held in a public area of the courthouse (not in a courtroom or chambers) and close to 5:00 p.m. and that the courthouse closes down there at 1:00 or 3:00 p.m., so the 5:00 p.m. signing was "after hours."[66]
Second, the settlement documents were translated into English only after the *797 Court event, and the Spanish version was read to Burke by a translator hired by Greene. No English version of the settlement document was present when Burke signed. The substance of the settlement was read to him by Gustavo Polit (an employee of Mr. Greene).[67]
Third, Burke also had no attorney on his behalf present at this signing.[68]
Fourth, there were no oaths rendered, no testimony taken, the Mexican judge was simply asked to witness a settlement between the parties.[69]
In the words of Judge Blackburn in his October 7, 2002 Order, this Bankruptcy Court must determine whether the Mexican Judgment was "so riddled with fraud that it must be set aside."[70] This Court concludes that the Mexican judgment is so flawed and so tainted with procedural and substantive irregularities it cannot stand. The Mexican. Judgment and the attendant Settlement Agreement are so questionable as to legitimacy, so suspect as to content, translation and meaning, and so much a product of evident fraud and related misconduct that it cannot be recognized by this Court.
B. Relevant Colorado Statutes
There are two statutes pertaining to foreign judgments in Colorado. Those statutes are (1) the Uniform Enforcement of Foreign Judgments Act, COLO.REV.STAT. § 13-53-101 et seq. (the "Enforcement Act") and (2) the Uniform Foreign Money-Judgments Recognition Act, COLO.REV. STAT. § 13-62-101 et seq. (the "Recognition Act").
1. Uniform Enforcement of Foreign Judgments Act, COLO.REV.STAT § 13-53-101 et seq. (the "Enforcement Act")
Under the Enforcement Act a "`[f]oreign judgment' means any judgment, decree, or order of a court of the United States or of any other court, . . . that is entitled to full faith and credit in this state."[71] The Enforcement Act is typically thought of as pertaining to foreign judgments of sister states.[72]
To initiate domestication of a foreign judgment in Colorado, the Enforcement Act provides the following:
A copy of any foreign judgment authenticated in accordance with the act of congress or the laws of this state may be filed in the office, of the clerk of any court of this state which would have had jurisdiction over the original action had it been commenced first in this state. A judgment so filed has the same effect and is subject to the same procedures, defenses, and proceedings for reopening, vacating, or staying as a judgment of the court of this state in which filed and may be enforced or satisfied in like manner.[73]
The Enforcement Act, at COLO.REV.STAT. § 13-53-104, goes on to provide for the following notice and stay of execution:
*798 (1) At the time of the filing of the foreign judgment, the judgment creditor, or his lawyer shall make and file with the clerk of court an affidavit setting forth the name and last-known post-office address of the judgment debtor and the judgment creditor.
(2) Promptly upon the filing of the foreign judgment and the affidavit, the clerk shall mail notice of the filing of the foreign judgment to the judgment debtor at the address given and shall make a note of the mailing in the docket. The notice shall include the name and post-office address of the judgment creditor and the judgment creditor's lawyer, if any, in this state. In addition, the judgment creditor may mail a notice of the filing of the judgment to the judgment debtor and may file proof of mailing with the clerk. Lack of mailing notice of filing by the clerk shall not affect the enforcement proceedings if proof of mailing by the judgment creditor has been filed.
(3) No execution or other process for enforcement of a foreign judgment filed under this article shall issue until ten days after the date the judgment is filed.
The Enforcement Act, at COLO.REV.STAT. § 13-53-107, also leaves open alternative methods of enforcing a judgment by stating, "The right of a judgment creditor to bring an action to enforce his judgment instead of proceeding under this article remains unimpaired."[74]
2. The "Recognition Act"
Under the Recognition Act, a "foreign state" is defined as follows:
[A]ny governmental unit other than the United States, any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, which governmental unit has entered into a reciprocal agreement with the United States recognizing any judgment of a court of record of the United States, or any state, district, commonwealth, territory, insular possession thereof, or the Panama Canal Zone, the Trust Territory of the Pacific Islands, or the Ryukyu Islands, and providing for procedures similar to those contained in this article. C.R.S. § 13-62-102(1).
. A "foreign judgment" is defined as "any judgment of a foreign state granting or denying recovery of a sum of money, other than a judgment for taxes, a fine or other penalty, or a judgment for support in matrimonial or family matters."[75]
The Recognition Act, at COLO.REV.STAT. § 13-62-105, also sets forth grounds for nonrecognition, some of which Mr. Burke raised in his Verified Answer in the Denver District Court.[76]
*799 There are a couple of problems with the Recognition Act. First, there are no procedures or time frames set forth in the Recognition Act as to how a movant/petitioner/plaintiff may obtain recognition of a foreign country judgment or how and when a respondent/defendant may raise the grounds for nonrecognition stated in COLO.REV.STAT. § 13-62-105. Second, as noted above in the definition of "foreign state," for the Recognition Act to come into play, the "foreign state" must have entered into a "reciprocal agreement" with the United States.[77] Mexico, or any other country for that matter, has not entered into such a reciprocal agreement with the United States. However, the Colorado Court of Appeals in Milhoux v. Linder, dealing with a Belgium judgment, has pointed out that these issues do not render the Recognition Act meaningless because a Colorado court may also recognize a foreign judgment under the common law principals of comity as set forth in the U.S. Supreme Court case of Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895).[78] The grounds for nonrecognition, or impeachment of a judgment, under the common law principals of comity are similar to those stated in Colorado's Recognition Act at § 13-62-105.[79]
Mr. Burke contends that the Denver District Court should not have entered a judgment on Mr. Greene's Verified Petition without having first conducted a hearing or, at least, addressed the issues raised in his timely-filed Verified Answer to Verified Petition. The Court of Appeals in Milhoux v. Linder looked to the Enforcement Act for procedures on due process, notice and execution. Relying on the Colorado Supreme Court's case of Gedeon v. Gedeon, the Court of Appeals stated, "our supreme court has determined that the due process requirements of the United States Constitution are satisfied by the procedures of the Enforcement Act. This is because, the basic requirements of notice and an opportunity for a hearing are satisfied by the foreign court which rendered the original judgment. Hence, pre-judgment notice and hearing requirements do not apply in post-judgment proceedings."[80]
Here, Mr. Burke never did have, a hearing; he never did have the issues timely raised in his Verified Answer to Verified Petition considered by the. Denver District Court, and those issues included, but were not necessarily limited to, "Grounds for Nonrecognition" found in COLO.REV.STAT XX-XX-XXX, the Recognition Act. The. Denver District Court never held its scheduled hearing on these issues due to filing of the bankruptcy case. Mr. Burke's right to due process of law was not satisfied.
The trial on the claim objection in this Bankruptcy Court, conducted July 26-28, 2006, August 15, 2006 and December 8, 2006, was essentially the due process hearing that Mr. Burke did not get in Denver District Court.
*800 The Court concludes, consistent with the Recognition Act, that the entry of the Colorado Judgment was not proper, not procedurally correct, and not in full compliance with principles of due process of law.
IV. CONCLUSION
Mindful of the very disparate versions of events, communications and history between the parties, and recognizing the difficulties of reconstructing a cogent and reliable recital of activities and conduct which occurred, in principal part, about 15 years ago in a foreign country with complications resulting from language translation, a lack of credibility of the principal disputants, exacerbated by bitter personal enmity and distrust the Court finds and concludes that:
(A) an I.O.U. obligation was established and proven by a preponderance of the evidence to be due and owing by the Baja Cantina restaurant (and related business activities), known as Baja Cantina, S.A. de C.V., but that obligation has not been proven, as such, to be that of this Debtor, Mr. Burke,
(B) the Settlement Agreement and attendant Mexican judgment are so deficient or to use Judge Blackburn's term, "riddled" with questionable features, irregular court proceedings, disputed legitimacy and contested translations, an absence of due process and, yes, evident fraud, that the Court cannot conclude that they are valid, legitimate or that they should not be set aside, and
(C) the Colorado judgment, as well, is deficient and unenforceable; the process invoked by Mr. Greene and applicable statutes coupled with notions and principles of due process did not accord Mr. Burke his day in court and the process was not completed and concluded in a legally sufficient manner. The Colorado Judgment is not enforceable.[81]
IT IS THEREFORE ORDERED, that the Debtor's objection to Richard Greene's proof of claim for $1,394,142.00 filed on February 12, 1999 in the main bankruptcy case, 98-25466-MER (Claim No. 7), is sustained and the subject claim is disallowed.
NOTES
[1] Greene's Proof of Claim for $1,394,142.00 was filed on February 12, 1999 and is designated as claim no. 7 in the main bankruptcy case, 98-25466-MER.
[2] Unless noted otherwise, all docket numbers refer to the docket in adversary proceeding 98-1754.
[3] The August 20, 2004, Minutes of Proceeding and Oral Ruling reflect the Court's Order denying Mr. Greene's claims seeking exception to discharge pursuant to 11 U.S.C. 523(a)(2)(A), (a)(4), and (a)(6).
[4] The September 2, 2004, Findings of Fact, Conclusions of Law and Order memorializes the essential findings and conclusions stated on the record in open court on August 20, 2004.
[5] The March 18, 2005, Order denied the relief sought by Mr. Greene in his Suggestion of Lack of Subject Matter Jurisdiction. The Court ruled, that it does have subject matter jurisdiction to adjudicate Mr. Burke's objection to the claim filed by Mr. Greene.
[6] The May 27, 2005 Order, granted Mr. Burke's Motion for Hearing on Objection to Claim of Mr. Greene, denied Mr. Greene's Request for Clarification, of the Scope of the Court's Findings of Fact, Conclusions of Law and Order (Docket # 185) and held that Mr. Burke has standing to object to Mr. Greene's bankruptcy claim.
[7] It is not unimportant to note that in the absence of credibility and persuasiveness of Mr. Burke and Mr. Greene, the Court did find credible and more persuasive Mr. Chris Watts and Mr. Mercado Hernandez.
[8] Mr. Greene even referred to himself as a "working manager" of the business. Greene Exhibit 32, page 2.
[9] Mr. Greene's Exhibit 25 (written report of meeting).
[10] Mr. Greene's Exhibit 7 (English) and Mr. Greene's Exhibit 8 (Spanish).
[11] Mr. Greene's Exhibit 25 (written report of meeting).
[12] Transcript, page 66, lines 18-25, and page 67, lines 1-19, Watts testimony (July 27, 2006)(Docket # 401). Transcript, page 221, lines 21-25, Mr. Greene testimony (July 27, 2006)(Docket # 401).
[13] Transcript, page 72, lines 18-24, Watts testimony (July 27, 2006)(Docket # 401).
[14] Transcript, page 234, line 23 to page 235, line 3, Mr. Greene testimony (July 27, 2006)(Docket # 401). Transcript, page 26, line 17 to page 27, line 20, page 96, line 11 to page 97, line 8 Mr. Greene testimony (July 28, 2007)(Docket # 402). Transcript, page 38-39, Mr. Greene testimony (August 15, 2006)(Docket # 403).
[15] Transcript, page 53-55, Mr. Burke's testimony (July 26, 2006)(Docket # 400).
[16] Exhibit 19, page 3.
[17] Transcript, page 16, lines 16-20, Lewis testimony (December 8, 2006) Docket # s396 and 404. Two transcripts of this hearing are filed with the Court. The Court will hereafter refer to the Transcript located at Docket # 396.
[18] Transcript, page 82, lines 14-19 Janney testimony (December 8, 2006)(Docket # 396).
[19] Transcript, page 83, line 10 Janney testimony (December 8, 2006)(Docket # 396).
[20] Transcript, pages 92-109 Janney testimony (December 8, 2006)(Docket # 396).
[21] Transcript, page 37, lines 5-8, Mr. Greene's testimony (July 28, 2007)(Docket # 402).
[22] Mr. Burke's Exhibit 0, Mr. Greene's Exhibit 28.
[23] Transcript, page 74, lines 22-24, Watts testimony (July 27, 2006)(Docket # 401).
[24] Exhibit 90, "Investigative Report" dated October 5, 1993.
[25] Exhibit 90, "Investigative Report" dated October 5, 1993.
[26] Mr. Castro was Mr. Greene's attorney at the time.
[27] Transcript, page 25, lines 19-23 and page 29, lines 3-10, Mr. Greene's testimony (July 28, 2006)(Docket # 402). Mr. Greene's Exhibit 40.
[28] Transcript, page 55, Mr. Burke's testimony (July 26, 2006)(Docket # 400).
[29] Transcript, page 67, Mr. Burke's testimony (July 26, 2006)(Docket # 400).
[30] Transcript, page 28, lines 16-18, Mr, Greene's testimony (July 28, 2006)(Docket # 402).
[31] Transcript page 68, Mr. Burke's testimony (July 26, 2006)(Docket # 400).
[32] Transcript, page 74, line 25 to page 75, line 4 and page 76, lines 6-9, Watts testimony (July 27, 2006)(Docket # 401).
[33] Transcript, page 69, line 25 to page 70, line 1, Mr. Burke's testimony (July 26, 2006)(Docket # 400). Transcript, page 28, lines 13-25, and page 29, lines 1-8, Mr. Burke's testimony (July 27, 2006)(Docket # 401).
[34] Transcript, page 95, line 7-20, Mr. Greene's testimony (July 28, 2006)(Docket # 402).
[35] Transcript, page 52, line 22 to page 53, line 17, Mr. Greene's testimony (July 28, 2006)(Docket # 402).
[36] Exhibit 32.
[37] The Court understands Thai Pan Dos to be the corporation owned by Roberto Marino that purchased the Baja Cantina restaurant business. Areli Sanchez was the Administrator Unico for Thai Pan Dos.
[38] Transcript, page 41, lines 24-25, Mr. Greene's testimony (August 15, 2006)(Docket # 403). Transcript, page 69, lines 2-5, Mr. Greene's testimony (July 28, 2006)(Docket # 402).
[39] Mr. Greene's Exhibit 1 and 3. Although Mr. Green is the only Plaintiff listed, he contends that he represented, by way of Powers of Attorney, other cash investors including Karl Piepho, David Kodama, Tom and Dafna Wolters. Powers of Attorney at Exhibits 20-23.
[40] Mr. Greene's Exhibit 4, translation by Maria Freiberg.
[41] Mr. Greene's Exhibit 2, translation by Alejandra Vellanoweth.
[42] Exhibits 1 and 2.
[43] Mr. Sacco's Telephone Deposition is given very little credibility by this Court. He recounts various purported acts of Burke that were illegal and/or deceptive, self-serving and cheating of the investors. Despite his ongoing knowledge of Same, he acknowledges that he never told anyone at any time and, indeed, enabled these acts, including: (1) keeping two sets of business books and helping hide them; (2) skimming $300.00 a day from the cambio; and (4) and hiding cash from the business and Mr. Greene.
[44] Telephone Deposition of Fernando Garibay (June 29, 1998).
[45] Video Deposition of Clicerio Mercado Hernandez, page 92, line 10 to page 93, line 23, page 103, line 25 to page 105, line 24 (March 4, 2004).
[46] Video Deposition of Clicerio Mercado Hernandez, page 89, line 7 to page 91, line 17 (March 4, 2004).
[47] Video Deposition of Clicerio Mercado Hernandez, page 89, lines 17-24 (March 4, 2004).
[48] Id.
[49] Video Deposition of Clicerio Mercado Hernandez, page 90, line 11 to page 93, line 23.
[50] Mr. Greene's Exhibit 67.
[51] Mr. Greene's Exhibit 69.
[52] Mr. Greene's Exhibit 68.
[53] COLO.REV.STAT. § 13-62-105.
[54] COLO.REV.STAT. § 13-62-105.
[55] Docket # 48
[56] Docket # 53.
[57] Docket # 67.
[58] Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895)
[59] Docket # 87.
[60] See Findings of Fact, Conclusions of Law and Order dated May 27, 2005 (Docket # 276) ("Burke has standing to object to Mr. Greene's bankruptcy claim. It appears that there would be a substantial surplus in the bankruptcy estate available for distribution after unsecured creditor claims are paid, if Mr. Greene's claim were disallowed. Case law establishes that Mr. Burke is not barred from objecting to a creditor's claim. In re White, 260 B.R. 870, 875 (8th Cir.[BAP]2001). See also Kieffer v. Riske (In re Kieffer-Mickes, Inc.), 226 B.R. 204, 209 (8th Cir.BAP 1998). See also 11 U.S.C. § 502, arid Bankruptcy Rule 3007.")
[61] See Minutes of Proceeding and Oral Ruling on the record dated August 20, 2004 (Docket # 178) and Findings of Fact, Conclusions of Law and Order dated September 2, 2004 (Docket # 180).
[62] Transcript, page 234, line 23 to page 235, line 3, Mr. Greene's testimony (July 27, 2006)(Docket # 401). Transcript, page 26, line 17 to page 27, line 20, page 96, line 11 to page 97, line 8 Mr. Greene's testimony (July 28, 2007)(Docket # 402). Transcript, page 38-39, Mr. Greene's testimony (August 15, 2006)(Docket # 403).
[63] Mr. Greene's Exhibit 68.
[64] It is not unimportant to note that in the absence of credibility and persuasiveness of Mr. Burke and Mr. Greene, the Court did find credible and more persuasive Mr. Chris Watts and Mr. Mercado Hernandez.
[65] Transcript, page 85, Burke testimony (July 26, 2006)(Docket # 400).
[66] Id.
[67] Transcript, page 83, Burke testimony (July 26, 2006)(Docket # 400).
[68] Transcript, page 87, lines 21-25, to page 88, line 1, Burke testimony (July 26, 2006)(Docket # 400). Mr. Burke also testified that Salvene Sausueta represented the Baja Cantina corporation and was present in the courthouse on January 6, 2005, but was not present at the signing of the agreement. Further, Mr. Burke testified that Sausueta did not represent him personally. Transcript, page 13, lines 5-19, Burke testimony (July 27, 2006)(Docket # 401).
[69] Transcript, page 86, Burke testimony (July 26, 2006)(Docket # 400).
[70] Docket # 87, at page 10.
[71] COLO.REV.STAT. § 13-53-102.
[72] Id.
[73] COLO.REV.STAT. § 13-53-103.
[74] COLO.REV.STAT. § 13-53-107.
[75] COLO.REV.STAT. § 13-62-102(2).
[76] COLO.REV.STAT. § 13-62-105, Grounds for nonrecognition (1) A foreign judgment is not conclusive if: (a) The judgment was rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law; (b) The foreign court did not have personal jurisdiction over the defendant; or (c) The foreign court did not have jurisdiction over the subject matter. (2) A foreign judgment need not be recognized if: (a) The defendant in the proceedings in the foreign court did not receive notice of the proceedings in sufficient time to enable him to defend; (b) The judgment was obtained by fraud; (c) The claim for relief on which the judgment is based is repugnant to the public policy of this state; (d) The judgment conflicts with another final and conclusive judgment; (e) The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute in question was to be settled otherwise than by proceedings in that court; or (f) In the case of jurisdiction based only on personal service, the foreign court was a seriously inconvenient forum for the trial of the action.
[77] Milhoux v. Linder, 902 P.2d 856, 859-860 (Colo.App.1995) ("the unambiguous language of the Recognition Act requires a reciprocity agreement before a foreign judgment will be recognized and that this requirement does not necessarily render the Act meaningless.")
[78] Milhoux v. Linder, 902 P.2d 856, 860 (Colo.App.1995) ("a foreign judgment may also be recognized under the common law doctrine of comity.")
[79] See Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895).
[80] Milhoux v. Linder, 902 P.2d 856, 862 (Colo.App.1995) and Gedeon v. Gedeon, 630 P.2d 579 (Colo.1981), appeal dismissed, 454 U.S. 1050, 102 S.Ct. 592, 70 L.Ed.2d 585 (1981)
[81] This is not to say that Mr. Greene or the other investors had no claim whatsoever against Mr. Burke. They may have or may have had a claim, be it a contract claim or other claim for negligence or mismanagement of the business. But, those claims have never been raised in this Court. The Plaintiff has pursued his claim only, exclusively, on the I.O.U., and the Mexican and District Court judgments. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/738889/ | 110 F.3d 68
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Donald ERCOLI; Thomas Brennan; Stacey Jacobson,Plaintiffs-Appellees/Cross-Appellants,v.COUNTY OF TUOLUMNE, CALIFORNIA; Richard Nutting, Sheriff,Defendants-Appellants/Cross-Appellees.
Nos. 95-15221, 95-15654.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 5, 1995.Submission Deferred Dec. 13, 1995.Resubmitted Jan. 6, 1997.Decided March 26, 1997.
Before: BROWNING, CANBY, and HALL, Circuit Judges.
1
MEMORANDUM*
2
Plaintiffs, Donald Ercoli and other prisoners at the Tuolumne County Jail (the "Jail"), filed a class action that alleged, among other things, that Tuolumne interfered with Plaintiffs' right of access to court by not providing an adequate law library at the Jail. Tuolumne appeals the district court's order that directed it to improve the law library, contending that the order is overly broad. Plaintiffs cross-appeal, contending that the order is too limited to redress the law library's deficits. We remand for reconsideration in light of Lewis v. Casey, 116 S.Ct. 2174 (1996), and for such further proceedings as the district court deems appropriate.
3
We need not set forth the facts because the parties are familiar with them.
ANALYSIS
4
We review the scope of the district court's grant of injunctive relief for an abuse of discretion or an application of erroneous legal principles. Securities & Exch. Comm'n v. Interlink Data Network, 77 F.3d 1201, 1204 (9th Cir.1996).
5
Pursuant to our request, the parties submitted supplemental briefing on the impact of Lewis v. Casey, 116 S.Ct. 2174 (1996). Casey affects Plaintiffs' requisite showing of "actual injury" and the permissible scope of the district court's order. See id. at 2180, 2183.
Actual Injury
6
Under Casey, a prisoner plaintiff must now show actual injury in order to have standing to assert a claim even if it involves a "core" Bounds requirement. Id. at 2180; see Bounds v. Smith, 430 U.S. 817, 827-28 (1977). The Court in Casey indicated that, in order to show such actual injury, a plaintiff must demonstrate that "the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Casey, 116 S.Ct. at 2180. The Court further clarified that the frustrated legal claim must be one that attacks the plaintiff's sentence (directly or collaterally) or challenges the conditions of confinement. Id. at 2182.
7
Plaintiffs here have not shown actual injury under Casey. Plaintiffs principally have relied on affidavits stating that inmates did not receive requested materials, not stating that specific legal claims have been frustrated. See id. at 2180. This deficiency is understandable, however, in light of the litigating posture of this case; Plaintiffs could not have known, pre-Casey, that they would need to make such a showing. The district court's decision was rendered on the basis that no showing of direct injury was required. We therefore remand to the district court for further proceedings as it deems appropriate in light of Casey 's actual injury requirements.
Scope of the District Court's Order
8
The Court in Casey also indicated the appropriate scope of injunctive relief in access-to-court cases. Id. at 2183. The Court asserted that "[t]he remedy must of course be limited to the inadequacy that produced the injury-in-fact that the plaintiff has established." Id. Therefore, the district court should, if Plaintiffs on remand make the requisite showing of actual injury, limit its order specifically to the redress of that injury.
9
ORDER VACATED; REMANDED.
10
The parties will bear their own costs on appeal.
11
CYNTHIA HOLCOMB HALL, Circuit Judge, dissenting:
12
Because I do not believe the plaintiffs here have standing to bring this suit, I respectfully dissent.
13
Lewis v. Casey, 116 S.Ct. 2174 (1996), clarifies the standing requirements for a constitutional challenge such as the one here. In Casey, the Supreme Court held that a prisoner alleging constitutional deprivation of access to the courts must demonstrate actual injury, and that the remedy ordered must be limited to rectifying the actual injury demonstrated.
14
In Casey, the Court disclaims those statements in Bounds v. Smith, 430 U.S. 817 (1977), that suggest that prisoners have a general right to discover grievances and litigate effectively. Casey, 116 S.Ct. at 2181. An inmate claiming a constitutionally deficient law library "cannot establish relevant actual injury simply by establishing that his prison's law library or legal assistance program is sub-par in some theoretical sense." Rather, he must "demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim." Id. at 2180. I agree with the majority's conclusion that the plaintiffs here have not shown "actual injury" under Casey. I disagree, however, with the conclusion that this deficiency in the plaintiffs' suit warrants remand.
15
Casey makes clear that its "actual injury" requirement derives from the "case or controversy" standing requirement. 116 S.Ct. at 2179. Thus, I disagree with the majority's statement that the plaintiff's deficiency is "understandable" because they "could not have known, pre-Casey, that they would need to make such a showing." In fact, both plaintiffs and defendants did address the issue of actual injury in their briefs to both the district court and this court. In doing so, the plaintiffs made clear that they base their suit only on generalized inadequacies. When plaintiffs argued to the district court that they had demonstrated actual injury, they offered no evidence of specific instances of denial to the courts, but only referred to the general inadequacy of the law library and of access to it. Moreover, the relief the district court ordered deals entirely with the general "constitutional adequacy" of the law library. Casey mandates that any relief must "be limited to the inadequacy that produced the injury-in-fact that the plaintiff has established. 116 S.Ct. at 2183. None of the relief ordered by the district court redresses an injury-in-fact because no injury-in-fact was shown.
16
Nothing in the record of this case supports the contention that plaintiffs have the requisite standing to bring this case under Casey. Therefore, I believe reversal of the district court and judgment for defendants is appropriate, and I dissent from the decision to remand.
*
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3 | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1550820/ | 382 Pa. Superior Ct. 306 (1989)
555 A.2d 193
William LESSNER
v.
Birdie L. RUBINSON and First Pennsylvania Bank.
Appeal of William LESSNER, by his Executor, Herbert PRESSMAN, Esquire.
Supreme Court of Pennsylvania.
Argued October 5, 1988.
Filed March 8, 1989.
*307 Herbert Pressman, Philadelphia, for appellant.
Louis S. Criden, Philadelphia, for appellees.
Before CIRILLO, President Judge, and BROSKY, ROWLEY, WIEAND, McEWEN, DEL SOLE, MONTEMURO, BECK and TAMILIA, JJ.
*308 ROWLEY, Judge:
This appeal challenges a final decree of the Court of Common Pleas of Philadelphia County, which ruled that a bank Certificate of Deposit ("C.D.") in the joint names of William Lessner (decedent) and Birdie L. Rubinson, his sister, is not an asset of the decedent's estate, but rather the property of Birdie L. Rubinson. The court also ruled that a $5,000 check given by William to Birdie was a gift and is not an asset of the estate. We affirm in part and reverse in part.
Our Court has held that the
findings of a trial judge in a non-jury case must be accorded the same weight and effect on appeal as the verdict of a jury, and will not be reversed in the absence of an abuse of discretion or a finding of a lack of evidentiary support. The appellate court, in these circumstances, is limited to determinations of whether the trial court's findings are supported by competent evidence and whether the trial court committed an error of law.
Brenna v. Nationwide Insurance Co., 294 Pa.Super. 564, 567, 440 A.2d 609, 611 (1982) (citations omitted). With this standard of review in mind, we summarize the facts as found by the trial court.
On or about July 18, 1978, William Lessner and his sister, Birdie Rubinson went to the First Pennsylvania Bank ("the Bank") to obtain a Certificate of Deposit ("the replacement C.D.") to replace a $50,000 C.D. which William had owned with his wife, Anna.[1] The amount of the replacement C.D. was $50,000, it was made payable to "William Lessner or Birdie L. Rubinson", and it matured on April 1, 1979.
Upon maturity of the replacement C.D., a new C.D. ("the third C.D."), dated April 1, 1979, was issued,[2] also in the amount of $50,000 and for four years. This third C.D. was *309 issued in the name of "William Lessner or Birdie Rubinson," as well. The third C.D. is at the center of this dispute.
The trial court found as a fact that the third C.D. remained in the constant possession and control of Birdie from the time it was issued. The court also found that Birdie did not contribute any funds toward purchase of the C.D. It is uncontradicted that before the third C.D. was to mature on April 1, 1983, William requested that Birdie return it to him so that he could get a higher rate of interest elsewhere. Birdie refused. William brought this action in the Court of Common Pleas on March 31, 1983 seeking to enjoin Birdie from redeeming the third C.D.[3]
In addition to the $50,000 C.D., a check in the amount of $5,000 is at issue in this case. William alleged in Count II of his complaint that on July 1, 1982 Birdie requested that he loan her $5,000 so that, together with $5,000 of her own funds, she could purchase a $10,000 C.D. for herself. William alleged that he complied with her request, but never received repayment of the $5,000. The trial court made no specific findings of fact regarding the $5,000 in dispute except to note that William claimed the payment of $5,000 to Birdie was a loan.
William died on July 28, 1984 before the date of trial. William's executor was substituted as plaintiff upon filing a suggestion of death. Following a bench trial held in February 1986, the Honorable Calvin J. Wilson concluded that the C.D., as well as the $5,000 check, were gifts by William to his sister and, therefore, did not constitute any part of his estate. William's executor has appealed.
Appellant presents seven issues on appeal, which may be most efficiently distilled into two arguments: 1) that the trial court erred in not applying 20 Pa.C.S. § 6303(a) in deciding the issue of the ownership of the third C.D., and 2) *310 that the evidence was insufficient to support the trial court's decision.
I.
First, William's executor argues that Chapter 63 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S., governs disposition of the matter, and that the trial court erred in not applying § 6303(a) of that Chapter to the case at bar.
Principally, counsel contends that the enactment by our legislature of § 6303(a) changed the prior law by creating a rebuttable presumption that parties who create a joint account do not by such act intend a beneficial change of ownership of the deposited funds. Thus, the executor argues, the act of obtaining the replacement C.D., as well as the third C.D., did not result in a gift to Birdie because William supplied all of the funds for the purchase and Birdie contributed nothing. Counsel contends that the trial court erred in not applying § 6303(a) to the facts in the case at bar.
The presumption under § 6303(a) is that during the lifetime of the parties, a joint account belongs to the party or parties who contributed the funds:
(a) Joint account. A joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sum on deposit, unless there is clear and convincing evidence of a different intent. (Emphasis added.)
There can be no doubt that section 6303(a) is the statute under which this case must be decided because Mr. Lessner commenced the litigation while he was still living.[4]
Prior to the enactment of section 6303(a), efforts to ascertain the owner or owners of funds often resulted in a state of confusion. See In re Estate of Cilvik, 439 Pa. 522, 267 A.2d 836 (1970) ("involv[ing] the ownership of a joint *311 savings account opened under one of those perplexing and vexing bank signature cards"); see also In re Estate of Bowser, 470 Pa. 154, 367 A.2d 1088 (1977); Hollinger, "Annual Survey of Pennsylvania Legal Developments in the Law Decedents' Estates and Trust Laws," 48 Pa.B.A.Q. 406, 408. Decisions in such cases often turned on "the exact wording of the deposit account and the signature card and the agreement, if any, accompanying it." In re Estate of Bunn, 413 Pa. 467, 469, 198 A.2d 518, 519 (1964). Our Supreme Court, however, has noted that the enactment of Chapter 63 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§ 6301-6306, "alters and simplifies in several significant respects the law of this Commonwealth applicable to joint interests in bank accounts." In re Estate of Young, 480 Pa. 580, 584 n. 3, 391 A.2d 1037, 1039 n. 3 (1978); see also In re Estate of Pitone, 489 Pa. 60, 413 A.2d 1012 (1980).
Section 6303 is explained in the official comment thereto:
This section reflects the assumption that a person who deposits funds in a multiple-party account normally does not intend to make an irrevocable gift of all or any part of the funds represented by the deposit. Rather, he usually intends no present change of beneficial ownership. The assumption may be disproved by proof than (sic) a gift was intended. (Emphasis added.)
The trial court found as a fact that Birdie did not contribute any of the funds toward the C.D., and the record supports this finding.
William's executor claims that the trial court erred in not applying § 6303(a) to the case at bar. While the court did not specifically refer to the statute in its opinion, there can be no doubt that the court applied the principle of law set forth in § 6303(a). The court concluded "it is the burden of Birdie L. Rubinson to establish the existence of a gift inter vivos by clear, precise, direct and convincing evidence." This language achieves the same result as does an application of § 6303(a). Thus, we find no error in the *312 principle of law or burden of proof applied by the trial court.
II.
Having found that the proper standard was applied by the trial court, we next address the argument of William's executor that the evidence proffered by Birdie and admitted at trial was not sufficient to establish that William intended the $50,000 C.D. and the $5,000 check to be gifts inter vivos. We agree that the evidence regarding the $50,000 C.D. was insufficient to prove a gift inter vivos.
Section 6303(a) requires the presentation of "clear and convincing" evidence to establish a gift. Our Supreme Court has set forth the standard for "clear and convincing" evidence:
[T]he witnesses must be found to be credible, that the facts to which they testify are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct, weighty, and convincing as to enable the jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.
In re Estate of Fickert, 461 Pa. 653, 658, 337 A.2d 592, 594 (1975), quoting La Rocca Trust, 411 Pa. 633, 640, 192 A.2d 409, 413 (1963).
Two elements must be shown in order to establish a valid inter vivos gift. First, there must be an intention to make an immediate gift. Second, there must be actual or constructive delivery to the donee such as will divest the donor of dominion and control of the subject matter of the gift. Ashley v. Ashley, 482 Pa. 228, 393 A.2d 637 (1978); Livingston v. Livingston, 275 Pa.Super. 285, 418 A.2d 724 (1980).
There is no dispute that the second element, actual delivery, was met in this case.[5] Indeed, suit was brought *313 precisely because Birdie had the third C.D. in her possession. We must determine, therefore, whether Birdie proved by clear and convincing evidence William's intention to make an immediate gift.
It is well-settled that "[d]onative intent is one of the essential elements of a completed inter vivos gift." In re Estate of Gladowski, 483 Pa. 258, 262, 396 A.2d 631, 633 (1979). Prior to the enactment of Chapter 63, "the creation of a joint interest in a bank account with rights of survivorship, evidenced by the signatures of both parties, [was] prima facie evidence of the intent of the party funding the account to make an inter vivos gift to the other joint tenant." Id. (emphasis added); accord In re Estate of Young, 480 Pa. 580, 391 A.2d 1037 (1978); In re Estate of Keeney, 465 Pa. 45, 348 A.2d 108 (1975); In re Estate of Scott, 455 Pa. 429, 316 A.2d 883 (1974); see also In re Estate of Dzierski, 449 Pa. 285, 296 A.2d 716 (1972) ("where a sole owner of a bank account converts the account into a joint one owned by himself and another, as evidenced by a duly signed signature card, the transaction is prima facie one of an inter vivos gift").
Conversely, when a bank account was opened with the donor's own money and the effect of the language used was to confer upon the donee only the right to withdraw the money, i.e. a convenience account,[6] there was no inter vivos gift. In re Elliott's Estate, 378 Pa. 495, 106 A.2d 453 (1954); Chadrow v. Kellman, 378 Pa. 237, 106 A.2d 594 (1954); In re Kata's Estate, 363 Pa. 539, 70 A.2d 351 (1950).
As our Supreme Court has noted, the law regarding joint accounts has been simplified by Chapter 63. To reiterate, our legislature has provided through § 6303(a) that while all *314 parties to a joint account[7] are living, the account belongs to the person who contributed the money, unless a different intent is proven by clear and convincing evidence. Counsel for Birdie asserts that evidence of William's actions on the day the replacement C.D. was obtained from the bank clearly and convincingly proves William's intent to make an immediate gift of the C.D. to Birdie.
Counsel points to the following evidence in support of his argument. Birdie testified that on the day she accompanied William to the Bank, he handed the first C.D. (the one in William's and Anna's names) to the bank clerk. The clerk put "William Lessner or Birdie Businson (sic)" on the replacement C.D. and handed it to William, who in turn handed it to Birdie. N.T. 2/27/86 at 22. As William handed the C.D. to Birdie, he purportedly said "this is yours."
In support of his position, counsel for Birdie places great weight on In re Estate of Chiara, 467 Pa. 586, 359 A.2d 756 (1976). In that case our Supreme Court was called upon to determine whether a valid gift had been made by a mother to her son when she gave him a $16,000 cashier's check with which to purchase a C.D. and the C.D. was made out in the name of "Mrs. Constance Chiara or Joseph E. Chiara." The Court held
[t]he requirement of donative intent was sufficiently proved through Joseph's uncontradicted testimony that he was told by his mother when she gave him the money with which to purchase the certificates that he was to "keep it for myself."
Id., 467 Pa. at 591-92, 359 A.2d at 759 (footnote omitted). We find that Birdie's reliance upon Chiara is misplaced. In the case at bar, the statement "this is yours" was struck from the record by the trial court. N.T. 2/27/86 at 23.[8]*315 Because we are precluded from considering any testimony not of record, Chiara is inapplicable to the case at bar. McAllonis v. Pryor, 301 Pa.Super. 473, 448 A.2d 5 (1982) ("an appellate court cannot consider anything which is not part of the record in the case").
Counsel for Birdie also directs our attention to deposition testimony by William stating that he intended to leave everything to Birdie upon his death. William testified:
shortly after my wife's death the Certificate matured. I was going to leave everything to Birdie. . . . That meant everything, the furniture, jewelry, the two fur coats and jewelry (sic). It was to be given to her. She was the only one who was not married. Through the years I took care of her financially. . . . She is going to get it. . . . I didn't know whether, how long I am going to live, or am I supposed to die before my wife. I have a bad heart, a pacemaker. I have diabetes; I have a little bit of everything.
N.T. 2/25/86 at 25-26. This testimony does not clearly and convincingly establish William's intent to make an immediate gift at the time he handed the C.D. to Birdie. At most, it shows an intent to leave his estate to her in the future, i.e., at his death.
In addition to the evidence already discussed, other evidence in the record indicates that an immediate gift to Birdie was not contemplated by William. Exhibit D-1, a photocopy of the replacement C.D., shows that the certificate was signed only by William Lessner at the time of its redemption on April 1, 1979. If William had intended an immediate gift to Birdie on July 18, 1978, of the replacement C.D., as her counsel contends, one would have expected to find her endorsement on the C.D., and not that of William. Further, William and Birdie each testified that William received all of the regular interest payments from both the replacement C.D. and the third C.D.N.T. 2/25/86 at 27 and 2/27/86 at 51. Thus, we hold that Birdie Rubinson has failed to prove by clear and convincing evidence *316 that an inter vivos gift of $50,000 was made to her by William, either on July 18, 1978 or on April 1, 1979.
The matter of the $5,000 check given by William to Birdie on December 29, 1978, remains. William's executor contends that the check was a loan rather than a gift. The burden of proof, as to this contention, is on the executor. The trial court held, without discussion, that the $5,000 check was a gift. We have reviewed William's deposition testimony concerning the $5,000 check, as well as the testimony of Birdie, and we find no basis on which to overturn the trial court's holding that the check was not a loan. William testified that Birdie requested that he lend her $5,000 so that she could add it to $5,000 of her own money in order to purchase a $10,000 bond. N.T. 2/25/86 at 29. Birdie testified that she purchased a $10,000 C.D. around that time. N.T. 2/27/86 at 73. However, Birdie testified that she cashed the $5,000 check, Exhibit P-12, at William's request and gave the cash proceeds to William so that he could supply a nephew with $5,000 with which to open a used car business. The question of whether the $5,000 was used by Birdie to purchase her C.D., or was delivered to William's nephew per William's instructions, was obviously a question of credibility for the trier of fact. Since there is evidentiary support for the trial court's conclusion that the $5,000 was not a loan to Birdie, we may not disturb that finding.
For the foregoing reasons we affirm the judgment of the trial court as to the $5,000 check, but reverse as to the $50,000 certificate of deposit.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.
NOTES
[1] Uncontradicted testimony established that Anna had died three months earlier. Anna and William had purchased the $50,000 C.D. on April 1, 1975. It had been issued for a term of four years.
[2] The third C.D. was actually issued on April 2, 1979. April 1st was a Sunday.
[3] During the litigation, by agreement of the parties, the C.D. at issue was redeemed and the proceeds placed in a money market account. That transaction has no effect upon the legal rights or responsibilities of either party.
[4] See Fiduciary Review, September, 1976, at 2. "[S]ection [6303] is limited to a description of ownership while the original parties are alive. No present change of beneficial ownership occurs and there is no presumption that an inter vivos gift was intended."
[5] But see In re Kata's Estate, 363 Pa. 539, 70 A.2d 351 (1950) ("the mere handing of a bank book, even though accompanied by words showing an intention to make a gift of the bank account is not sufficient delivery to constitute a gift of that account").
[6] "In a `convenience account,' although the depositor permits another to withdraw funds from the account, he authorizes and/or intends that such withdrawals be exclusively for his benefit and at his request." In re Estate of Bowser, 485 Pa. 209, 214 n. 4, 401 A.2d 733, 735 n. 4 (1979) (citations omitted).
[7] Significantly, "joint account" is defined as "an account payable on request to one or more of two or more parties whether or not mention is made of any right of survivorshp." 20 Pa.C.S. § 6301 (emphasis added).
[8] Thus, the record before us shows only that William handed the C.D. to Birdie. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598212/ | 526 N.W.2d 549 (1995)
In the Matter of the RECEIVERSHIP OF the MT. PLEASANT BANK AND TRUST COMPANY, Mt. Pleasant, Iowa.
Adam Judgment Holders, Appellants,
Federal Deposit Insurance Corporation, Appellee.
No. 93-462.
Supreme Court of Iowa.
January 18, 1995.
*551 James Walker, Bloomington, IL, and James P. Hoffman, Keokuk, for appellants.
Charles D. Neighbor of F.D.I.C., Chicago, IL, Ann S. DuRoss, Asst. General Counsel, Robert D. McGillicuddy, Sr. Counsel, and Gregory E. Gore, Counsel, of F.D.I.C., Washington, DC, and Steven T. Hunter and Linda A. Whittaker of Stanley, Lande & Hunter, Muscatine, for appellee.
Considered by McGIVERIN, C.J., and HARRIS, LARSON, CARTER, and ANDREASEN, JJ.
McGIVERIN, Chief Justice.
Judgment creditors of an insolvent Iowa state bank made several objections to the final report of the Federal Deposit Insurance Corporation (FDIC) as receiver of the bank. The district court overruled the objections and approved the final report. The objectors appealed. We affirm.
I. Background facts and proceedings.
A. FDIC's appointment to and handling of the receivership. The objectors, the Adam Judgment Holders (AJH), were several judgment creditors of the Mt. Pleasant Bank and Trust Company, Mt. Pleasant, Iowa (MPB). AJH originally held claims for grain sold to or stored by the Prairie Grain Company of Stockport Iowa, which became bankrupt. The history of how AJH became judgment creditors of MPB is set out in Adam v. Mt. Pleasant Bank and Trust Co., 387 N.W.2d 771 (Iowa 1986), and in other cases cited therein.
MPB was an Iowa banking corporation organized and existing under the laws of the state of Iowa. On August 6, 1982, the superintendent of banking for the Iowa Banking Commission (superintendent) determined MPB's business conduct and financial condition were unsafe and unsound, and its capital was impaired. See Iowa Code § 524.224 (1981). Upon making these determinations, the superintendent closed MPB pursuant to Iowa Code section 524.226.
On the same date, the superintendent filed a petition with the Iowa district court for Henry County (receivership court), asking for the appointment of a receiver for MPB. See id. § 524.1310. The superintendent tendered the appointment as receiver of MPB to the Federal Deposit Insurance Corporation (FDIC), a federal agency, see id. § 524.1313; and the FDIC accepted the appointment, see The Federal Deposit Insurance Act of 1950, 12 U.S.C. § 1821(c)(3).[1] The receivership court approved the petition and appointed FDIC as receiver (FDIC-Receiver). See *552 Iowa Code § 524.1310. FDIC-Receiver then became vested with all the powers, privileges, and duties of the state superintendent of banking as provided by Iowa Code section 524.1313, and took possession of and title to all the assets, business, and property of MPB.
Acting pursuant to these powers and with court authorization, FDIC-Receiver entered into a purchase and assumption agreement with Hawkeye Bank and Trust (HBT), whereby HBT acquired certain assets and liabilities of MPB. The purpose of that contract was to protect the bank's depositors and keep the bank open for service to the public.
FDIC-Receiver then sold the remaining assets of MPB to FDIC in its corporate capacity (FDIC-Corporate) subject to the provision that should FDIC-Corporate recover any excess over the purchase price upon complete liquidation, and after certain adjustments as set forth in the contract between FDIC-Receiver and FDIC-Corporate, it would tender back to FDIC-Receiver that excess recovery.[2]
The contract between FDIC-Receiver and FDIC-Corporate identified the assets purchased by FDIC-Corporate, which included claims against MPB's former officers and directors for alleged improper acts and a claim on MPB's blanket bond in connection therewith. The contract also addressed the method by which FDIC-Corporate would account for its liquidation of the purchased assets and outlined the administrative expenses which would be paid to FDIC-Corporate prior to the return of any excess recovery to FDIC-Receiver. Further, the contract permitted FDIC-Corporate to recoup a reasonable return on its investment. The receivership court approved this contract between the two FDIC entities.
Following through on one of its acquired assets, FDIC-Corporate filed suit in federal district court against certain former officers and directors of MPB on August 12, 1983. FDIC-Corporate also made claim under MPB's blanket bond.
After extensive settlement negotiations, the insurance company for MPB's former officers and directors and bonding company made an offer to FDIC-Corporate to settle all claims against them and their insureds for $1.75 million.
On January 13, 1988, FDIC-Receiver filed an application with the receivership court for instructions concerning this settlement offer, and notice was given to all interested parties, including AJH. A hearing was held on the matter, and the receivership court approved of the settlement terms. After receiving this court authorization, FDIC accepted the settlement offer and dismissed the federal court suit.
B. Receiver's final report and objections thereto. Having substantially completed the liquidation of MPB, FDIC-Receiver filed a petition for termination of the receivership on August 6, 1991 in the receivership court. Among other things, FDIC-Receiver asked that the court approve payment of the final expenses, confirm and approve the acts and accounting of FDIC-Receiver and FDIC-Corporate, and order that FDIC, in its receivership and corporate capacities, be fully released and discharged from any further obligations or liabilities in connection with the liquidation of MPB.
Attached to the petition for termination was a statement of receipts and disbursements by FDIC-Corporate regarding its liquidation of MPB's assets. The statement was certified to have been compiled from the books and records of MPB, as maintained by the FDIC, in accordance with standard FDIC liquidation policies and procedures. See 12 U.S.C. § 1821(d)(15)(A) (1989). The statement of receipts and disbursements showed that FDIC-Corporate collected an excess recovery and that a net liquidation recovery of at least $792,889 was available for distribution to the receivership's unsecured creditors on a prorata basis.[3] Subsequently, *553 the FDIC supplemented its final report with additional filings.
After receiving notice of the FDIC-Receiver's petition for termination of the receivership, AJH timely filed written objections to it. Among other contentions, AJH objected that: (1) The accounting FDIC provided to the court contained no detail or specificity as required by Iowa Code section 524.1311(3); (2) FDIC paid or proposed to pay itself unjustified and excessive amounts for salary expenses, travel expenses, legal fees, other professional fees, other expenses, and interest on FDIC's investment; (3) FDIC violated its duty to other creditors by paying participant banks more than their ratable share of the receivership estate and further violated the rule that, in a purchase and assumption, if the FDIC pays some creditors in a class, it must pay all creditors in that class the same percent of their loss or leave (or add) enough money in the receivership estate so that the remaining creditors are paid the same percentage upon distribution of the receivership estate; and (4) FDIC improperly investigated and settled the claims against MPB's former directors and officers and blanket bonding company.
FDIC-Receiver filed a motion for partial summary judgment on the objections regarding the settlement of the directors and officers' litigation and the blanket bond claim. AJH resisted the motion, but the receivership court granted partial summary judgment, concluding that the objections were precluded by the receivership court's previous order which had approved and authorized FDIC's acceptance of the settlement.
The remaining objections were heard at trial. Jeffrey Samuels, an FDIC senior accountant, testified for FDIC. He testified that he has responsibility for closing failed banks and that MPB was within his jurisdiction. He stated that his jurisdiction encompassed twenty-six states, and that, at the time of trial, his office was managing eighty receiverships for 158 failed institutions.
His testimony explained the history of the FDIC receivership of MPB, from the accounting performed on the date the superintendent closed MPB to the date FDIC-Receiver filed the petition for termination of the receivership. Samuels also explained that FDIC prepares its reports and other documents in accordance with regulatory accounting principles and FDIC manuals.
Samuels' testimony focused on the statement of receipts and disbursements (statement) which was attached to FDIC's petition for termination. The statement showed the recovery due to FDIC-Receiver under its contract with FDIC-Corporate. Samuels stated that he and employees under his direction prepared the statement in accordance with FDIC policies. Samuels testified that in preparing the statement he reviewed FDIC-Corporate's general ledger year by year, from 1982 through 1991, for the liquidation. He explained that the statement constitutes a summary of that financial information and that all of the underlying data was in the FDIC's detailed trial balance, which was admitted into evidence at trial. He described the trial balance as a series of cumulative annual reports which are FDIC records addressing the condition of the receivership for each year.
In addition to describing FDIC's specific accounting for the liquidation of MPB, Samuels referred to several manuals, which are official publications adopted by the FDIC and which are utilized in preparing FDIC's trial balance and its statement of receipts and disbursements. The manuals introduced into evidence at trial included the FDIC's Regional Accounting Manual, which contains a chapter on preparing the termination of a receivership; and the Accounting for Receivership Liabilities Manual, which standardizes the way each FDIC office accounts for the payment of dividends and recording liabilities, provides an in-depth discussion of receivership liability accounting and financial reporting responsibilities, and identifies the method and forms which the FDIC uses in accounting for receiverships. Samuels testified that these manuals provided the framework and guidance by which the FDIC conducted *554 itself in closing out the affairs of MPB.
AJH cross-examined Samuels at the trial but did not offer any evidence to dispute his testimony.
After the trial, the receivership court entered an order approving the final report. The court rejected AJH's contention that FDIC's accounting was conclusory and insufficient. The court noted that the documents were complex and, based on the evidence before it, concluded FDIC's accounting was complete and adequate.
The court also rejected AJH's contention that FDIC paid itself unjustified and excessive expenses for salaries, travel, legal fees, other professional fees, other expenses and interest. The court noted that AJH offered neither evidence nor theories why the legal fees and expenses were inappropriate, and determined that all claimed expenses were specifically allocated to MPB and were reasonable and necessary. With respect to the interest paid to FDIC-Corporate, the court held that the court-approved contract between FDIC-Receiver and FDIC-Corporate permitted FDIC to pay interest to FDIC-Corporate.
The court further found and concluded that FDIC did not act inappropriately in paying the participating banks their shares of the loan proceeds. The court stated that resolution of this issue depended on principles of contract law and that, in accordance with those principles, FDIC correctly honored and carried out its contractual obligations to the participant banks.
On the basis of these findings and conclusions, the receivership court overruled and dismissed AJH's claims, approved FDIC's final report, and allowed FDIC's petition for termination of the receivership, subject to the filing of a compliance report concerning distribution of the remaining funds held by the FDIC.
AJH filed notice of appeal. FDIC moved to dismiss the appeal as interlocutory. We denied the motion and granted AJH permission to appeal in advance of final judgment. See Iowa R.App.P. 1(c).
This is an equitable proceeding. Therefore, our review is de novo. Iowa R.App.P. 4. Although we are not bound by the trial court's factual findings, we do give weight to them. Hanson v. Minette, 461 N.W.2d 592, 593 (Iowa 1990) (citing Iowa R.App.P. 14(f)(7)).
II. Evidentiary objection. AJH preliminarily assert that the district court erroneously overruled their hearsay objection to an FDIC exhibit, identified as the receiver's trial account balances and monthly detail concerning MPB. AJH contend that the district court should not have admitted this exhibit into evidence at trial because it is hearsay and does not fall within the business records exception to the hearsay rule. See Iowa R.Evid. 803(6). AJH argue that the exhibit does not contain the details of the payments for which it was offered and that the circumstances of its preparation indicate a lack of trustworthiness.
We agree with AJH that the exhibit is hearsay but conclude that it was admissible at trial under the business records exception to the hearsay rule, Iowa rule of evidence 803(6). Samuels' testimony demonstrated that the exhibit was made in the regular course of the receiver's business and showed it was trustworthy by explaining that the exhibit was a product of FDIC's regulatory accounting policies and manuals. There is no merit to this assignment of error.
III. Burden of proof, applicable law, and sufficiency of FDIC's accounting and report. FDIC-Receiver has the burden of proof to show that it has met the requirements necessary for court approval of its actions as receiver and for termination of its receivership.
The district court impliedly held that FDIC-Receiver met its burden of proof by presenting sufficient evidence for the court to approve its final report which contained its various receipts and expenditures, and that the AJH objectors offered no evidence that the expenses and fees were unnecessary or unreasonable. We agree with the district court and conclude that FDIC-Receiver sufficiently established that its actions and final report meet federal accounting and reporting *555 requirements, as authorized by Iowa Code chapter 524 (1991) and prescribed by federal law.
Iowa Code section 524.1313(1) states that:
If the federal deposit insurance corporation accepts the appointment as receiver, the rights of depositors and other creditors of the insured state bank shall be determined in accordance with the laws of this state.
(Emphasis added.)
The law of this state provides in Iowa Code section 524.1313(2) that:
The federal deposit insurance corporation as receiver shall possess all the powers, rights and privileges given to the superintendent under section 524.1311, except insofar as that section may be in conflict with the laws of the United States.
(Emphasis added.)
Iowa Code section 524.1311(3) requires that:
At the termination of the receivership, the superintendent shall file a final report containing the details of the superintendent's actions therein, together with such additional facts as the court may require.
(Emphasis added.)
This section's "detailed report" requirement conflicts with 12 United States Code section 1821(d)(15)(A) (1989), which does not require the FDIC to engage in such detailed reporting. 12 United States Code section 1821(d)(15)(A) requires the FDIC to
[be] consistent with the accounting and reporting practices and procedures established by the [FDIC] corporation [i.e. regulatory policies and manuals], maintain a full accounting of each ... receivership or other disposition of institutions in default.
Since this federal law regarding FDIC's accounting and reporting practice conflicts with state law regarding the same for a state receiver, the federal law applies to this case as mandated by Iowa Code section 524.1313(2).
FDIC satisfied its burden of showing that it has met all of its accounting and reporting obligations under federal law to justify to the court its receipts and expenditures. FDIC produced substantial records of its actions, and Samuels, an FDIC senior accountant, testified that FDIC followed all of FDIC's regulatory accounting policies and manuals in producing its records and final report. As the district court stated:
FDIC-Receiver has provided an adequate and correct accounting for its handling of the affairs of [MPB] from the inception of the receivership through the date of the filing of the petition for termination and closing.
On the other hand, the AJH objectors did not produce any contrary evidence to prove their contention that the FDIC paid itself unjustified and excessive amounts for salary expenses, travel expenses, legal fees, other professional fees, and other expenses. Accordingly, we agree with the district court's dismissal and overruling of AJH's objections to FDIC's accounting and reporting of its receipts and expenditures as receiver for MPB.
IV. Interest paid to FDIC-Corporate. AJH next contends that the interest FDIC-Corporate paid to itself on funds advanced to assist in the liquidation and wind-up of MPB was unjustified and excessive. The district court concluded that the court-approved contract between FDIC-Receiver and FDIC-Corporate permitted the payment of interest to FDIC-Corporate. We agree.
With respect to this objection to the interest paid FDIC-Corporate, the district court stated:
It is not seriously disputed that from the inception of this receivership it was necessary for FDIC-Corporate to infuse substantial sums of money into this receivership in order to carry out its mandated responsibility as the overseer of the orderly closing of a failed bank. The interest on FDIC[-Corporate]'s investment is provided for as part of the contract of sale signed by FDIC-Receiver and FDIC-Corporate on August 8, 1982 which contract was approved by the court on the same day. In effect, the order approving the contract allows FDIC-Corporate to charge interest on its investment.
*556 We agree with the district court's reasoning that FDIC's payment of interest to FDIC-Corporate was justifiable as a matter of contract law, and thus its conclusion that AJH failed to show why the interest should not be allowed.
Furthermore, we note that under Iowa Code section 524.1312(1), if an institution's assets are insufficient to cover all of the institution's liabilities, "payment of costs and expenses of the administration of the dissolution" has priority over "the payment of all other claims pro rata." FDIC's interest payment to FDIC-Corporate was a liquidation expense. Accordingly, the payment of FDIC's interest payment to FDIC-Corporate had priority over payment of AJH's claims.
V. Participation loans. AJH's next major objection to FDIC's petition for approval and termination of the receivership is that FDIC violated its duty to other creditors by paying participant banks more than their ratable share of the receivership estate. The district court determined that FDIC properly made payments to participating banks as a matter of contract law, and we agree.
A loan participation is a solution to the lending limits federal and state laws place on banks in order to reduce the banks' risks of insolvency. Lending limits for small banks often prevent them from making loans which meet the needs of their principal customers. By engaging in a loan participation, a "lead bank" can lend an amount to a customer in excess of the bank's lending limit, divide the loan into shares, and then contract to sell the shares to "participating banks." The result of the agreement is that the banks share in sponsoring the customer's loan and thereby do not exceed their lending limits. See, e.g., FDIC v. State Bank of Virden, 893 F.2d 139, 140 (7th Cir.1990); Hibernia Nat'l Bank v. FDIC, 733 F.2d 1403, 1407 (10th Cir.1984).
MPB, as a "lead bank," had entered into several loan participation agreements with other "participant banks" prior to its insolvency.
AJH complain that FDIC paid these participant banks, allegedly creditors in the same class as AJH, 100 percent of their loss, and yet propose to pay AJH a much lower percentage of their loss. AJH contend that such an action by the FDIC is in violation of the rule that, in a purchase and assumption, if the FDIC pays some creditors in a class, it must pay all creditors in that class the same percent of their loss or leave (or add) enough money in the receivership estate so that the remaining creditors are paid the same percentage upon distribution of the receivership estate. See The National Banking Act (NBA), 12 U.S.C. § 91 (1989).
This argument lacks merit because the participant banks were not mere creditors of the receivership estate but were parties to contracts with MPB. As stated by the district court, all FDIC did in this case was properly honor MPB's contracts with participant banks by paying each of them its fair share upon receipt of payments from the debtors. Other jurisdictions are in accord. See, e.g., FDIC v. Mademoiselle of California, 379 F.2d 660, 664 (9th Cir.1967) ("[A] direct recovery against the receiver [by a participant bank] in preference to the general pro rata distribution of assets `is authorized in situations where the facts are such that the court must say in equity that the property is not that of the bank but that of the [participant bank].'") (quoting John L. Walker Co. v. Alden, 6 F.Supp. 262, 267 (E.D.Ill.1934)). Thus, we agree with the district court in overruling this objection to FDIC's actions and final report.
VI. Grant of partial summary judgment to FDIC regarding settlement of claims. Finally, AJH contend that the district court erred in granting partial summary judgment in favor of the receiver regarding the receiver's disposition of its 1983 suit in federal district court against MPB's former directors and officers for alleged improper actions and its claim against MPB's former bonding company in connection therewith. The district court concluded that this objection had been rejected by the receivership court's prior order. We agree.
In 1988 the insurance company of MPB's former directors and officers and bonding company offered to settle all claims for $1.5 million as to the former directors and officers *557 and for $250,000 as to the bonding company, for a total of $1.75 million. FDIC notified the receivership court, and its application for instructions concerning settlement was set for hearing before the court. Notice was given to AJH and other interested persons. After an evidentiary hearing, in which AJH's counsel participated, in 1988 the district court approved the proposed settlement as follows:
It is the conclusion of the court that FDIC accept the offer made to FDIC in the amount of $1,750,000 in full settlement of the claims made by FDIC against the directors and officers of the bank.
After AJH objected in 1992 to the portion of the receiver's final report concerning FDIC's settlement of those claims, FDIC filed a motion for partial summary judgment as to that objection by AJH. The district court sustained FDIC's motion on the basis that AJH was attempting to relitigate the same issues that were previously before the court which had directed the settlement.
AJH now claims the 1988 settlement approval by the court was defective because (1) only the federal court had subject matter jurisdiction to approve a settlement of the claims; and (2) the 1988 order did not authorize settlement of the bond claim.
A. As to the jurisdictional matter, we believe that AJH's argument fails because whether FDIC was acting in its capacity as receiver or in its corporate capacity, the district court had subject matter jurisdiction in either event.
Under 12 United States Code section 1819(a) (Fourth) (1989), Congress has granted the FDIC the power "[t]o sue and be sued, and complain and defend, in any court of law or equity, State or Federal." This grant of jurisdiction is limited only by the language which follows in section 1819(b)(2)(D). See In re S. Indus. Banking Corp., 872 F.2d 1257, 1260 (6th Cir.1989). The limiting language found in section 1819(b)(2)(D) has been interpreted by several courts to prohibit federal subject matter jurisdiction when three conditions are present. See, e.g., id.; FDIC v. Bank of Boulder, 911 F.2d 1466, 1471 (10th Cir.1990), cert. denied, 499 U.S. 904, 111 S.Ct. 1103, 113 L.Ed.2d 213 (1991); FDIC v. Nichols, 885 F.2d 633, 636 (9th Cir.1989). Those three conditions are as follows:
First, the FDIC must be a party to "such suit" in its capacity as a receiver of a state bank.... Second, the suit must involve only the rights or obligations of depositors, creditors, stockholders, and the state bank itself.... Third, the suit must involve such rights or obligations under state law.
In re S. Indus. Banking Corp., 872 F.2d at 1260.
This jurisdictional scheme set out in section 1819 has been interpreted by one court as:
[a recognition of] FDIC's dual role with respect to insured state banks by providing for federal jurisdiction in cases where FDIC is acting in its corporate capacity as federal insurer of state bank deposits, but expressly excluding jurisdiction in cases where FDIC is acting as receiver of a state bank and the case involves only state law issues.
FDIC v. Sumner Fin. Corp., 602 F.2d 670, 679 (5th Cir.1979).
Here, assuming FDIC was acting in its capacity as receiver when it settled the claims, AJH's argument that a federal court rather than the state district court had subject matter jurisdiction necessarily fails. Under section 1819(b)(2)(D) federal jurisdiction over the matter would have been prohibited.
Furthermore, AJH's jurisdictional argument also fails if we assume that FDIC was acting in its corporate capacity. Section 1819 allows federal jurisdiction when FDIC is acting in its corporate capacity but nothing in FIRREA makes such federal jurisdiction exclusive. See Simard v. Resolution Trust Corp., 639 A.2d 540, 548-49 (D.C.1994) ("there is no clear expression in FIRREA, or any implicit direction in its language or legislative history, that subject-matter jurisdiction lies exclusively with the federal district courts"). "[A]bsent [such] provision by Congress to the contrary or disabling incompatibility between the federal claim and state-court adjudication, ... [t]he general principle *558... [is that] state courts may assume subject matter jurisdiction." Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 477-78, 101 S.Ct. 2870, 2875, 69 L.Ed.2d 784, 791 (1981). Thus, we believe Congress provided for concurrent jurisdiction over certain FDIC matters,[4] giving the state district court subject matter jurisdiction over settlement of the claims. Therefore, AJH's jurisdictional argument is rejected.
B. We also believe the district court at the time of its 1988 ruling understood the proposal for settlement which had been made to FDIC included both the directors and officers' claim and the bond claim. The court clearly held it was in the best interest of the receivership that such offer be accepted. Although the court's final ruling approving the settlement could have been clarified by segregating $1.5 million to the directors and officers' claim and $250,000 to the bond claim, the intention of the court's ruling is clear that settlement of both claims be approved for the total sum of $1.75 million.
In granting partial summary judgment to FDIC, the receivership court noted that no issue was raised by AJH which suggested that the two settlements were not made as directed by the court in its 1988 order.
We conclude the receivership court properly granted FDIC's motion for partial summary judgment concerning this AJH objection to the receiver's final report. There is no merit in this assignment of error.
VII. Conclusion. We have considered all contentions raised by AJH, whether specifically discussed or not, and find no merit in them. Accordingly, we affirm the judgment of the district court approving the FDIC's final report and directing the termination of the receivership of MPB.
AFFIRMED.
NOTES
[1] In this case, FDIC was required to accept the appointment. See 12 U.S.C. § 1821(e) (1988). Since the enactment of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA), Pub.L. No. 101-73, 103 Stat. 183 (1989) (effective Aug. 9, 1989), the FDIC can decline appointments by state authorities. 12 U.S.C. § 1821(c)(3)(A) (1989) (FDIC "may accept such appointment.").
[2] For an explanation of the FDIC's ability to act in the two different capacities of FDIC-Receiver and FDIC-Corporate, see In re First Nat'l Bank in Humboldt, 523 N.W.2d 591, 594 (Iowa 1994).
[3] Although FDIC's final report in this case states that there will be at least $792,889 in excess funds that will be available for distribution to creditors of MPB, the receivership court has previously ordered partial distribution. An updated statement of receipts and disbursements states that the remaining current amount for disposition up through November 30, 1992 is $117,497.
[4] Our conclusion that Congress provided for concurrent jurisdiction is further supported by the fact that Congress granted the receiver discretion to remove cases to federal court. See 12 U.S.C. § 1819(b)(2)(B) (1989). If Congress had intended to provide exclusive jurisdiction to the federal courts, the provision granting the receiver the right to remove an action to federal court would be superfluous. See Armstrong v. Resolution Trust Corp., 234 Ill.App.3d 162, 175 Ill.Dec. 195, 201-02, 599 N.E.2d 1209, 1215-16 (1992). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598213/ | 3 So.3d 646 (2009)
Lavan MERRITT, et ux.
v.
Thomas Michael BRENNAN, et al.
No. 08-973.
Court of Appeal of Louisiana, Third Circuit.
February 4, 2009.
*647 Edward P. Chevallier, Jr., Attorney at Law, Many, LA, for Plaintiffs/Appellees, Lavan Merritt, Debbie W. Merritt.
William D. Dyess, Dyess Law Firm, LLC, Many, LA, for Defendants/Appellants, Thomas Michael Brennan, Kenneth W. Greer.
Court composed of MARC T. AMY, MICHAEL G. SULLIVAN, and SHANNON J. GREMILLION, Judges.
SULLIVAN, Judge.
The defendants, Thomas Michael Brennan and Kenneth W. Greer, appeal a judgment of the trial court which rendered declaratory judgment in favor of the plaintiffs, Lavan Merritt and Debbie W. Merritt, declaring them to be the owners of a disputed tract of property; ordered the defendants to remove a fence and gate that had been built across the property; and awarded the plaintiffs trespass damages of $2,500.00 and attorney fees of $2,500.00. For the following reasons, we affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
The property in dispute is located in Sabine Parish, Louisiana. The Merritts purchased a tract of land from Mrs. Merritt's parents, Lynn and Nadine Wooley, in 1977. The Wooleys had acquired the property from one of Mr. Wooley's relatives in 1971. In April of 2007, the defendants purchased a 7.67 acre tract of property adjacent to the Merritt's property from Imogene Rogers. The property at issue in this dispute is a triangular shaped area of land where the two properties join near Louisiana Highway 191.
Sometime around August of 2007, the defendants began clearing portions of their property. Timber was removed from the disputed tract and a fence was constructed across a significant portion of the Merritts' circular driveway. On September 18, 2007, the Merritts filed the instant suit against the defendants seeking trespass damages and a declaratory judgment declaring them to be the owners of the disputed tract of property. In their petition, *648 the Merritts alleged that they and their ancestors in title had peacefully possessed the disputed tract for more than thirty years and that they were the legal owners of the disputed property.
A bench trial was held on May 23, 2008. Judgment was rendered on June 3, 2008, in favor of the plaintiffs, declaring them to be the owners of the disputed tract of property; ordering the defendants to remove the fence and gate that had been built across the property within seven days; and awarding the plaintiffs trespass damages of $2,500.00 and attorney fees of $2,500.00. The defendants now appeal. In their sole assignment of error, the defendants claim that the trial court erred in finding that the Merritts had proven acquisitive prescription of thirty years and in awarding them damages for trespass and attorney fees.
DISCUSSION
An appellate court may not set aside a jury's or a trial court's finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840 (La.1989). "[W]here there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable." Id. at 844. If the trial court's findings "are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. Moreover, "[w]hen findings are based on determinations regarding the credibility of witnesses, the manifest errorclearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said." Id.
This court discussed the concept of acquisitive prescription in Brooking v. Vegas, 03-1114, pp. 2-3 (La.App. 3 Cir. 2/4/04), 866 So.2d 370, 372, writ denied, 04-0577 (La.4/30/04), 872 So.2d 491, stating:
"Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time." La. Civ.Code art. 3446. "Ownership and other real rights in immovables may be acquired by the prescription of thirty years without the need of just title or possession in good faith." La.Civ.Code art. 3486. "For purposes of acquisitive prescription without title, possession extends only to that which has been actually possessed." La.Civ.Code art. 3487. "Acquisitive prescription is interrupted when possession is lost." La.Civ.Code art. 3465. "The interruption is considered never to have occurred if the possessor recovers possession within one year or if he recovers possession later by virtue of an action brought within the year." Id. "Possession is lost when the possessor manifests his intention to abandon it or when he is evicted by another by force or usurpation." La. Civ.Code art. 3433.
"When a party proves acquisitive prescription, the boundary shall be fixed according to limits established by prescription rather than titles." La.Civ. Code art. 794. "If a party and his ancestors in title possessed for thirty years without interruption, within visible bounds, more land than their title called for, the boundary shall be fixed along these bounds." Id.
In discussing the burden of proof in an action to establish acquisitive prescription this court stated:
*649 It is well settled that the party pleading acquisitive prescription bears the burden of proving all of the facts that are essential to support it. The proof required to fix a boundary according to acquisitive prescription is the same proof required to prove ownership in a petitory action based on 30 year acquisitive prescription, i.e., continuous, uninterrupted, peaceable, public and unequivocal possession with a positive intention to possess as owner.
Mistric v. Kurtz, 610 So.2d 226, 230 (La.App. 3 Cir.1992), writ denied, 612 So.2d 102 (La.1993).
In addition, this court has held that "[w]hether a party has possessed property for purposes of thirty year acquisitive prescription is a factual determination by the trial court and will not be disturbed on appeal unless it is clearly wrong." Phillips v. Fisher, 93-928, p. 3 (La.App. 3 Cir. 3/2/94), 634 So.2d 1305, 1307, writ denied, 94-0813 (La.5/6/94), 637 So.2d 1056. See also Otwell v. Diversified Timber Servs., Inc., 04-924, p. 4 (La.App. 3 Cir. 1/26/05) 896 So.2d 222, 225, writ denied, 05-0467 (La.4/22/05), 899 So.2d 575.
Both of the Merritts testified at trial, as did Mrs. Merritt's father, Lynn Wooley. Mr. Merritt stated that he and his wife had purchased approximately two acres of land along what is now Highway 191 from his in-laws in 1977. He and his wife had lived on the property since that time in a house that had been built in the 1940s by a member of his wife's family. According to Mr. Merritt, the western boundary of his property was marked by an old fence that ran along a tree line, a boundary which had existed since the time he bought the property. Most of the old fence was destroyed in August of 2007 when the defendants bulldozed the area, cut down timber, and built a fence and gate. He stated that up until that time, his family had continuously used and maintained the disputed property. More specifically, he stated that he and his son regularly mowed the grass up to the fence line, that his family had parked their cars in the circular driveway located in the disputed area since they acquired the property, and that he regularly welded and worked on vehicles near the fence line on his days off from work. According to Mr. Merritt, the defendants did not give him any notice before clearing the disputed property and building the fence and gate.
Mr. Merritt identified several old photographs, some dating back to 1959, showing the fence which marked the disputed line, as well as several photographs that he had taken more recently from the same vantage points. He also identified several photographs which he took in the summer of 2007 showing sections of the old fence. Finally, he identified photographs depicting the new fence and gate that had been built by the defendants across the disputed property. All of the photographs were entered into evidence.
When asked about a survey that had been commissioned by Mrs. Rogers from Kenneth Murphy in 2001 when she bought the property adjacent to his, Mr. Merritt acknowledged knowing that a survey had been done and that stakes had been put down across his property. He explained, however, that he did not file a lawsuit at that time because he was able to continue using the property as he had always done. With regard to damages that he had suffered as a result of the defendants' trespass on his property, Mr. Merritt testified that his parking area had been reduced by 75%, that the use of his yard had been reduced, and that he had been prevented from using his circular driveway, the driveway that he used most frequently.
Mrs. Merritt testified that she remembered the old fence line from when she *650 was a young child. She stated that she and her husband had always disagreed with the property line depicted in the Murphy survey. Nevertheless, she reiterated that because she and her family continued to use the property as they always had, she and her husband had not filed a lawsuit contesting the ownership of the disputed property at that time. She stated that this lawsuit was filed when the defendants built the fence across her land. Mrs. Merritt testified that as a result of the defendants' trespass, her family had lost the use of one of their driveways, most of their front yard, and part of their side yard.
Mr. Wooley confirmed that in the late 1940s, his brother had built the house in which the Merritts had lived since they bought the property from him. He stated that the house had originally "set up square with the old original gravel road." When shown the 1959 photographs, Mr. Wooley identified the old fence. He stated that he was seventy-five years old and that he remembered the old fence being in that location from when he was five or six years old because it had been his job to patch the fence to keep hogs out. He noted that the gravel road was considerably further out from the Merritts' property back then, as opposed to where Highway 191 had been built.
Mrs. Rogers was called as a witness on behalf of the defendants, along with Rita Ann Rogers Randolph,[1] and the defendant, Mr. Brennan. Mrs. Rogers testified that when she and her husband bought some property next to the Merritts' property in 2001, they had it surveyed by Mr. Murphy. She stated that property was staked after the survey. She recalled a conversation that she had had with Mr. Merritt wherein she offered to sell him the land where his driveway was located, but he had declined her offer. Mrs. Rogers admitted, however, that she had never threatened legal action against the Merritts to get off of what she considered to be her land.
Mrs. Randolph also testified on behalf of the defendants. She was familiar with the land in dispute because it adjoined her grandfather Rogers' property where she had played as a child. She was fifty-nine years of age at the time of trial. When asked about whether she remembered an old fence cutting across the contested property, Mrs. Randolph denied ever seeing an old fence. She stated that she used to run across the properties barefoot, and she never saw a fence or stepped on any barbed wire fencing. Using the pictures that had been submitted as exhibits by the Merritts, the trial judge intensely questioned Mrs. Randolph in an attempt to pinpoint the exact location of where she played as a child.
The last witness to testify was Mr. Brennan. He stated that he had a survey done by Douglas Dockens before purchasing the land from Mrs. Rogers in May of 2007. That survey placed the property line across the Merritts' front yard and driveway. According to Mr. Brennan, he and Mr. Merritt had a discussion about the Merritts buying the disputed property, and Mr. Merritt told him that he "wasn't interested." He stated that when he started clearing the land, he never saw an old fence line or wire. When questioned about why he decided to fence off the Merritts' driveway while not fencing off the rest of his property, Mr. Brennan stated that he knew that the Merritts were contesting his ownership of the disputed property and that because of "inquisitive prescription," he had "[t]o bring this thing to head" before thirty years.
In ruling in favor of the Merritts, the trial court stated that it was:
*651 [T]hroughly [sic] convinced that there was an old fence going down the side of the drive as depicted in P-6. The location of the home, the age of the home, how it is situated in relation to the old highway and the new highway, with the existing circular drive, the Court finds that it was more than thirty years possession by the Merritts and certainly much more [by] their ancestors in title.
The defendants assert that the Merritts failed to prove that they had continuous, uninterrupted possession of the disputed land. They argue that the Merritts did not have continuous, uninterrupted possession of the land after the Murphy survey was conducted and stakes were put across what they claimed was their land in June of 2001. The defendants submit that, from that point on, the Merritts knew that the property did not belong to them and that they only occupied the property with Mrs. Rogers' permission, as opposed to occupying the property as owners as required by law.
The Merritts counter that, despite their knowledge of the Murphy survey, they always contested the proper boundary line between the two properties. Moreover, the Merritts submit that the trial testimony proved that they and their ancestors in title had continuously used and occupied the disputed tract of land, up to the old fence line, for over seventy years.
As previously noted, whether a party has possessed property for purposes of thirty-year acquisitive prescription is an issue of fact to be determined by the trial court which should not be disturbed on appeal unless it is clearly wrong. The Merritts presented testimony and photographic evidence showing that they and their ancestors in title possessed the property in question, as marked by an old fence line at the edge of a clearing, for more than thirty years. Moreover, we conclude that the testimony proved that the Merritts always believed that they were the true owners of the disputed property and that they maintained possession of the disputed property up until the time that the defendants fenced them out. None of the testimony elicited by the defendants directly or conclusively contradicted the evidence presented by the Merritts.
Given the applicable standard of review, we cannot say that the trial court erred in finding that the Merritts had met their burden of proving all the facts necessary to entitle them to be declared the owners of the disputed property on the basis of acquisitive prescription. In light of this finding, we likewise find no error in the trial court's having awarded the Merritts $2,500.00 for the damages that they testified to having sustained as a result of the defendants' trespass on their property. We reverse the trial court's award of attorney fees, however, because the record contains no evidence of a statute or contract authorizing the award of attorney fees under the circumstances present in this case. Booth v. Madison River Commc'ns, 02-0288 (La.App. 1 Cir. 6/27/03), 851 So.2d 1185, writ denied, 03-2661 (La. 12/12/03), 860 So.2d 1161.
DECREE
For the foregoing reasons, the portion of the trial court's judgment awarding Lavan and Debbie W. Merritt attorney fees in the amount of $2,500.00 is reversed. The judgment is affirmed in all other respects. Costs of this appeal are assessed to Thomas Michael Brennan and Kenneth W. Greer.
AFFIRMED IN PART AND REVERSED IN PART.
NOTES
[1] It is unclear from the record whether Mrs. Randolph is related to Mrs. Imogene Rogers. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598215/ | 287 So.2d 569 (1973)
ORKIN EXTERMINATING CO., INC., Plaintiff and Appellant,
v.
James T. FOTI, Defendant and Appellee.
No. 4369.
Court of Appeal of Louisiana, Third Circuit.
November 30, 1973.
Rehearing Denied January 21, 1974.
Writ Granted April 5, 1974.
*570 Dubuisson & Dubuisson, by James T. Guglielmo, Opelousas, for plaintiff-appellant.
Taylor & Trosclair, by Earl B. Taylor, Opelousas, for defendant-appellee.
Before FRUGE, MILLER, and DOMENGEAUX, JJ.
DOMENGEAUX, Judge.
This action for injunctive relief was instituted by Orkin Exterminating Co., Inc. against James Foti alleging breach of defendant's employment contract which contained provisions not to compete on the termination of his employment. After trial the district court granted a limited injunction in favor of plaintiff and against the defendant for two years from the date of defendant's termination of employment. The plaintiff appealed from this judgment. The defendant neither appealed nor answered plaintiff's appeal.
The plaintiff is substantially the largest exterminating corporation in the United States with operations and branch offices throughout the state of Louisiana. The defendant, James Foti, was first employed by Orkin in February 1968 as a salesman in Lafayette. Eighteen months later he was promoted to manager of the New Iberia office and thereby signed an employment contract which contained non-competition provisions. In June 1971 Foti was transferred to Monroe and was promoted to a branch manager position, again signing a similar employment contract. Thereafter, in order that he could be exposed to business management ideas and principles, Foti was transferred to the Louisiana District Office in Alexandria. Once again he signed another new employment contract on January 14, 1972. As this contract is *571 the particular one in question we quote its pertinent parts as follows:
"The Employee hereby expressly covenants and agrees, which covenants and agreements are of the essence of this contract, that he will not, during the term of this agreement and for a period of two (2) years immediately following the termination of this agreement, for any reason whatsoever, directly or indirectly, for himself or on behalf of, or in conjunction with, any other person, persons, company, partnership or corporation:
(a) call upon any customer or customers of the Company solicited or contacted by the Employee or whose account was serviced by the Employee, pursuant to his employment hereunder, for the purpose of soliciting or selling any pest control, exterminating, fumigating or termite control service for the eradication or control of rats, mice, roaches, bugs, vermin, termites, beetles or other insects within the territory stated in Paragraph 8(e);
(b) nor will he divert, solicit or take away any such customer or customers of the Company or the business or patronage of any such customers of the Company for the purpose of selling a service for eradication or control of rats, mice, roaches, bugs, vermin, termites, beetles or other insects within the territory stated in Paragraph 8(e);
(c) nor will he call upon, divert or solicit any person, persons, company, partnership or corporation for the purpose of selling any service for the eradication or control of rats, mice, roaches, bugs, vermin, termites, beetles or other insects within the territory stated in Paragraph 8(e);
(d) nor will he service any contracts or accounts for other employers, or for himself, anywhere within the territory stated in Paragraph 8(e);
(e) nor will he engage in the lawn and ornamental pest control service, pest control, exterminating, fumigating or termite control business as a manager/salesman/serviceman anywhere within the territory as specifically delineated and described as follows: The cities of Alexandria, Crowley, Monroe, Lafayette, Lake Charles, Natchitoches, New Iberia, Shreveport and Ruston all in the state of Louisiana and a radius of fifty miles of and from the official geographical boundaries of each city and town listed in this sub-paragraph 8e."
Thereafter Foti was transferred to Opelousas as a branch manager on April 1, 1972. No new contract of employment was signed after this transfer.
On September 30, 1972, Foti terminated his employment with Orkin, thereafter forming his own exterminating company, Yambilee Exterminating Co., Inc. on October 9, 1972. He began soliciting and doing business in the Opelousas and surrounding area including New Iberia, Bunkie, Marksville, Breaux Bridge, and St. Martinville. By his own testimony Foti admitted contacting and servicing former customers of Orkin.
On December 29, 1972, Orkin filed this suit praying for an injunction to restrict Foti from doing business in those respects which the above quoted contract provision provided.
The trial court granted a limited injunction, only recognizing sections (a) and (b) in the above cited contract.
Orkin appealed alleging that the entire "non-competition" clause should have been upheld.
We feel bound to follow our decision in National Motor Club of Louisiana, Inc. v. Conque, 173 So.2d 238 (La.App.3rd Cir. 1965), writs denied, 247 La. 875, 175 So.2d 110, and consider it to be controlling herein. Therefore we quote extensively *572 from the language used by Judge [now Justice] Tate therein.
"The basic provision of LSA-R.S. 23:921, incorporating the public policy of this state, flatly provides: `No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court * * *.' The 1962 amendment to be discussed below, permits a limited exception to this broad policy.
Even prior to the enactment by Act 33 of 1934 of this prohibition against exaction of noncompetitive agreements from employees, they were consistently held to be unenforceable. Cloverland Dairy Products v. Grace, 180 La. 694, 157 So. 393 (1943); Blanchard v. Haber, 166 La. 1014, 118 So. 117 (1928). See 27 Tul.L. Rev. 364 (1953). (In most states other than Louisiana, however, noncompetitive contracts are recognized if reasonably restricted as to time and area. See Annotations at 41 A.L.R.2d 15 and 43 A.L. R.2d 94.) In the absence of an enforceable contract to other effect, an employee has the absolute right to actively serve a business competing with his former employer after leaving the latter's service, Jones v. Ernst & Ernst, 172 La. 406, 134 So. 375 (1931); as, for instance, does a former officer who actively competes with his former corporate principal, Marine Forwarding & Shipping Co. v. Barone, La.App.Orl., 154 So. 2d 528 (1963).
As noted in these decisions, their essential basis is the right of individual freedom and of individuals to better themselves in our free-enterprise society, where liberty of the individual is guaranteed. A strong public policy reason likewise for holding unenforceable an agreement exacted by an employer of an employee not to compete after the latter leaves his employment, is the disparity in bargaining power, under which an employee, fearful of losing his means of livelihood, cannot readily refuse to sign an agreement which, if enforceable, amounts to his contracting away his liberty to earn his livelihood in the field of his experience except by continuing in the employment of his present employer.
These fundamental principles must be borne in mind in interpreting and applying to the present facts the 1962 amendment providing a limited exception to the above-quoted basic provision of LSA-R. S. 23:921, that noncompetitive agreements exacted of employees `shall be null and unenforceable in any court.'
The 1962 amendment did not repeal the broad statutory provision that noncompetitive agreements exacted from an employee were null and unenforceable. See Appendix A. The amendment simply added a proviso excepting those noncompetitive agreements of limited territory and duration `in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in.' In view of the retention of the broad provision for the unenforceability of such noncompetitive agreements and in the context of the prior jurisprudence, the apparent purpose of the 1962 amendment is to protect an employer only where he has invested substantial sums in special training of the employee or in advertising the employee's connection with his business.
We do not think noncompetitive agreements such as the present can be justified as valid on the naked ground that the employer spends sums advertising the business itself (as distinguished from advertising the employee's connection with it), for almost every business this day every department store, every service *573 station, even corner grocery stores spends money advertising its products and services. That is, for example, the Ford Motor Company could not validly require that its factory employees enter into noncompetitive agreements simply because Ford spends large sums advertising its product. To hold these general advertising expenses justified a noncompetitive agreement binding an employee, it seems to us, would make meaningless the broad and basic statutory prohibition against such agreements with only limited exceptions.
Likewise, we do not think that normal expenses of administration and supervision can be used to justify these noncompetitive agreements, on the guise that such are `training' expenses. If they are, then few if any employees could not be required to tie themselves down to their present employer by the exaction of noncompetitive agreements. What the legislators must have intended, it seems to us (since they did not repeal the basic prohibition against such contracts as void as against the public policy of this state), was to protect the investment of those employers who afford special training of a substantial nature to their employees, and to encourage them to do so.
We cannot hold that these normal costs of running a business are the sort of training and advertising expenses which validate noncompetitive agreements under the 1962 amendment, invalid otherwise under the basic provisions of LSA-R.S. 23:921 and under the public policy of Louisiana. If we do so, then in effect the basic provisions of the statute have been judicially repealed, for then all noncompetitive agreements exacted from employees may be held valid, whether or not the employer has incurred any special expenses in training the employee or advertising the employee's connection with the employer's businessthe special circumstances alone intended by the 1962 amendment as validating such noncompetitive agreements (and then only if entered into for a statutorily-limited duration and applying only to a statutorily-limited area . . .)"
In the present case Foti was employed almost five years with Orkin, during which plaintiff alleges that Orkin incurred so called "training" expenses at several points in time.
Plaintiff first of all points to a Manager Training School in Atlanta, Georgia, which defendant attended shortly after he became manager of the New Iberia office in 1970. However the only specific expenses for Foti which plaintiff establishes amount to $261.50 [$55.50 for meals, tips, taxi; $90.00 for lodging; $116.00 for plane fare.] As to other expenses allegedly incurred, Orkin's Technical Director only made general statements and estimates as to the cost of preparing for and operating the school.
In addition defendant attended one-day service training schools in Louisiana in 1970, 1971, and 1972. However, again Orkin's witness only made generalized statements and estimates as to the cost of preparing these schools. They failed to produce any records of any specific training expenses incurred here on behalf of Foti.
Orkin also contends that other "training" expenses were incurred when the defendant attended a Supervisor's Leadership Conference in August of 1972 in Baton Rouge. Again the plaintiff could produce no specific training expenses incurred.
Finally the plaintiff contends that Foti received special individualized training by the district manager, which amounted to several hours each month spent in conference.
In summary, Orkin has only established the insubstantial sum of $261.50 as expenses incurred directly on behalf of Foti. Elsewhere the generalized statements of their Technical Director are unimpressive,
*574 In addition we are of the opinion that the generalized alleged costs for the several one day service training schools and the Leadership Conference are not the type of expenses which Conque envisions. The plaintiff must have invested "substantial sums" in "special training of a substantial nature". In Conque the court termed the expenses incurred at company district manager meetings and manager sales clinics as "normal costs of administration" and not the "sort of employer investment for training which the legislature intended to permit protection of by nonthe record we come to the same conclusion competitive agreements". After reviewing as far as these indicated schools are concerned. The same is true for the conferences Foti had with his district manager.
We further note and approve of language used in Nalco Chemical Co. v. Hall, 237 F.Supp. 678 (E.D.La.1965), although this was before any definitive Louisiana cases had been decided on the 1962 Amendment to LSA-R.S. 23:921. Therein Judge West found the amendment obviously designed to apply only where money was expended for training an employee which was "not usually or customarily expended in the normal type of employment". He further stated that it "doesn't apply where only usual or customary training was given to acquaint the employee with his duties". Thus the amendment comes into play if the expenditures are such "whereby the employee is, by virtue of such expenditure by the employer, made a specialist in the employer's employ".
In our case we cannot say that Foti was made an expert in the field of extermination by attending one or even all of the schools alleged. In fact the agenda of these respective schools dealt almost entirely with administrative procedures, sales techniques, etc. Undoubtedly Foti could not have passed his required state examination to become an exterminator by the "knowledge" he gained from the alleged "specialized" training schools. Instead, the record indicates that the basic and necessary knowledge in the business of pest eradication and control was acquired by the defendant, Foti, by everyday exposure to the business during the five years he was employed by the plaintiff. We cannot envision a rule whereby a man who has learned a trade by his own ability and hard work "on the job" would be restricted by the courts from going out and trying to better himself by starting his own business. This would be contrary to our free-enterprise system.
Finally, even if we could consider these "schools" which Foti attended as "specialized training", for which Orkin alleges it expended "substantial" sums, we must note that after the contract in question was signed, January 14, 1972, Foti only attended the Supervisor's Leadership Conference and one of the service training schools, for which no specific training expenses on behalf of Foti were established. Orkin argues that this court must consider the entirety of Foti's employment, i.e. all of the contracts he signed, yet by the language in their contracts, once each new contract is signed the former is cancelled, with the exception of similar noncompetition provisions as cited above. Thus by their own contract Orkin has decreed that each former contract is nonexistent. This lends credence to defendant's argument that we cannot consider what took place before the January 14th contract in question. See Peltier v. Hebert, 245 So.2d 511 (La.App.3rd Cir. 1971); National Motor Club of Louisiana, Inc. v. Conque, supra.
In attempting to prove advertising expenses incurred by it, Orkin produced testimony showing advertising costs in excess of $100,000.00 for the entire state in 1970-71 and over $1,000.00 for the Opelousas area for a five month period in 1972. However, there is no evidence that these advertisements did other than advertise Orkin Exterminating Co., Inc. itself, as distinguished from advertising the defendant *575 Foti's connection with the business. Conque clearly holds that these "normal advertising expenses" are insufficient to bring the defendant under the 1962 amendment.
We again recognize that this result is in possible conflict with other Louisiana Courts of Appeal in their holding that "general administration and advertising expenses suffice". National School Studios, Inc. v. Barrios, 236 So.2d 309 (La.App.4th Cir. 1970); World Wide Health Studios, Inc. v. Desmond, 222 So.2d 517 (La.App. 2nd Cir. 1969); Aetna Finance Co. v. Adams, 170 So.2d 740 (La.App.1st Cir. 1964), but we adhere to the contrary reasoning in Conque.
Although by our Conque holding the limited injunction herein should probably have been denied, as well as rendering the noncompetitive agreement unenforceable, the defendant did not appeal or answer the appeal; therefore we may not disturb the trial court judgment in that regard. The fact is, as indicated by defendant's counsel in brief and at oral argument, that defendant was perfectly content in abiding by the trial judge's decision and chose not to appeal.
For the above and foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are to be paid by Orkin Exterminating Company, Inc.
Affirmed.
MILLER, J., dissents and assigns written reasons.
MILLER, Judge (dissenting).
I respectfully dissent from the foregoing interpretation of LSA-R.S. 23:921.[1] There has been no attempt to explain or reconcile the varied interpretations of this statute among the different court of appeal circuits of this state. Instead manifest error was found in the trial court's factual determination. The majority has relied solely upon the holding in National Motor Club of Louisiana, Inc. v. Conque, 173 So. 2d 238 (La.App. 3 Cir. 1965). Even under the criteria set forth in Conque, Orkin is entitled to relief.
Orkin has incurred substantial expenses in training Foti. Under the provision of the cited statute Orkin is entitled to enforce the contractual provisions whereby Foti agreed not to compete in certain territories for a period of two years.
There is no manifest error in the trial court's finding that Foti was bound by his contract, but the trial court erred as a matter of law in enforcing only selected contractual provisions and failing to enforce all contractual terms.
Foti was employed by Orkin in February of 1968 knowing nothing about the pest control business. Because of his experience and Orkin's training, Foti passed a difficult state licensing test in April, 1972. In four and a half years, Foti rose from *576 the lowest of Orkin's employees to become one of Orkin's top employees in the state of Louisiana. Within five months after Foti passed the licensing test, he left Orkin to establish his own pest control business and competed with Orkin in territories where he had represented Orkin and where he specifically agreed not to compete.
Substantial sums were spent by Orkin to train Foti so that he could pass the licensing test and to give him the needed skills to establish his own pest control business. As Orkin's branch manager Foti had access to fifteen to twenty service manuals and technical bulletins which were annually updated. Several of these bulletins and manuals were introduced in evidence. The table of contents of one manual demonstrates the specialized training provided by Orkin at substantial expense.
CONFIDENTIAL
ORKIN EXTERMINATING COMPANY, INC.
ORKIN SERVICE STANDARDS
TABLE OF CONTENTS
Page
I Homes and Apartments 1- 4
II Hotels, MotelsHospitals, Office Buildings 5-10
III Food Serving Establishments 11-18
IV Food Markets & Grocery Stores 19-22
V Department and Dry Good Stores 23-29
VI Dry Cleaners, Laundries, & Laundromats 30-31
VII Flower Shops 32-33
VIII Pet Shops & Kennels 34-35
IX Radio & T. V. Stations 36-37
X Non-Food Warehouses 38-41
XI Food & Feed Warehouses 42-44
XII Farms 45-46
XIII Food Processing Plants 47-50
XIV Canning Plants 51-
XV Creameries & Dairies 52-53
XVI Frozen Food Processing Plants 54-
XVII Breweries, Distilleries, Bottling Plants 55-58
XVIII Potato Chip Plants & Bakeries,
Meat & Poultry Packing Plants 59-62
XIX Grain Elevators & Flat Grain
Storage Facilities 63-64
XX Peanut & Pecan Shelling Plants 65-69
XXI Rice Mills 70-73
XXII Vegetable Oil Mills 74-77
XXIII Public ConveyancesAirplanes, Trucks
Trailers, Boxcars, etc. -78
Each section details methods to be used for extermination of particular pests in particular areas, as well as the manner of application. This comprehensive and expensive training goes beyond the normal scope of training experience one might expect from on-the-job training and personal observation.
The expenses incurred by Orkin for Foti's training at the 7½ day Managers Training School at Atlanta were, I submit, improperly minimized by the majority. Ignored is the fact that Orkin itself operates this school. Orkin had to provide the instructors, knowledge, research, and the location for the school. Likewise the one-day service training schools were improperly minimized. Furthermore the majority has applied a strained and artificial construction to Foti's numerous contracts to hold that only expenses incurred after the January 14, 1972 contract are relevant to meet the LSA-R.S. 23:921 standard. The same non-competition covenant was in force and effect throughout Foti's employment. Foti agreed not to compete in every contract. The new contracts added new territories in which Foti agreed not to compete.
The facts of this case present a classic case for enforcement of LSA-R.S. 23:921. I respectfully dissent.
NOTES
[1] § 921. Competing business; contracts against engaging in forbidden; exceptions
No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in, then in that even it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said employee will not enter into the same business that employer is engaged over the same route or in the same territory for a period of two years. As amended Acts 1962, No. 104, §§ 1, 2. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598250/ | 190 Wis.2d 447 (1994)
526 N.W.2d 834
IN RE the MATTER OF GRANDPARENT VISITATION OF:
Zachary Paul HEGEMANN and Benjamin David Glascock:
Diana MARQUARDT, Plaintiff-Appellant-Cross-Respondent,
v.
Karen HEGEMANN-GLASCOCK, Defendant-Respondent-Cross-Appellant.
No. 94-1671.
Court of Appeals of Wisconsin.
Submitted on briefs December 12, 1994.
Decided December 28, 1994.
*450 For the plaintiff-appellant-cross-respondent the cause was submitted on the briefs of Rand Krueger, Wausau.
For the defendant-respondent-cross-appellant the cause was submitted on the brief of Ronald J. Moore, Ronald J. Moore Law Office, Wausau.
Before Cane, P.J., LaRocque and Myse, JJ.
MYSE, J.
Diana Marquardt appeals an order dismissing her petition for grandparent visitation with her daughter's two children. Marquardt contends the trial court erred by dismissing her petition for visitation because: (1) an underlying action affecting the children's family was previously filed, and (2) the children are not part of an intact family. Karen Hegemann-Glascock cross-appeals, arguing that Marquardt should have known her petition for visitation could not be supported by a good faith argument and that her claim is therefore frivolous. Accordingly, Karen contends that the trial court erred by denying her motion for reasonable attorney fees. Because we conclude that there is no merit to Marquardt's contentions and that the trial court properly found that there was no evidence showing that Marquardt filed her petition in bad faith, we affirm the trial court's order.
The facts giving rise to this appeal are essentially undisputed. Karen is married to David Glascock and has two children, Zachary and Benjamin. David is Zachary's stepfather and Benjamin's biological father. Marquardt, Karen's mother, is the grandmother of Zachary and Benjamin.
Prior to Karen and David's marriage, a paternity action was held in Milwaukee County establishing Patrick L. Cwiklinski as Zachary's biological father. *451 Although Cwiklinski is under a continuing obligation to pay child support, he has never visited nor acted as Zachary's father. Approximately four years after the paternity action, Karen married David, and Benjamin was born thereafter. Both children have resided with David and Karen since their marriage, and David has acted as the father to both children.
On November 18, 1993, Marquardt filed a petition for grandparent visitation pursuant to § 767.245, STATS. Marquardt alleged that despite the fact that she had maintained a long-term, normal and healthy relationship with her grandchildren, Karen would no longer allow her to visit the children. Accordingly, she petitioned the court to allow her to visit her grandchildren pursuant to a court-ordered visitation schedule. The trial court, however, found that Marquardt lacked standing to bring the petition and granted Karen's motion to dismiss.
[1]
Whether Marquardt has a right to court ordered visitation with her grandchildren pursuant to § 767.245, STATS., involves the interpretation of a statute and its application to undisputed facts. This is a question of law that we review without deference to the trial court. Chang v. State Farm Auto. Ins. Co., 182 Wis. 2d 549, 560, 514 N.W.2d 399, 403 (1994).
[2, 3]
In Wisconsin, it is well established that "[o]ne of the rights parents have as a result of the natural relation of parent and child is the right to determine whether a relationship with the grandparents, or any other person, is contrary to the child's best interests." In re Soergel, 154 Wis. 2d 564, 574, 453 N.W.2d 624, 628 (1990). Nevertheless, the state may order parents to provide a grandparent with child visitation under *452 some circumstances. Section 767.245(1), STATS., provides:
Upon petition by a grandparent, greatgrandparent, stepparent or person who has maintained a relationship similar to a parent-child relationship with the child, the court may grant reasonable visitation rights to that person if the parents have notice of the hearing and if the court determines that visitation is in the best interest of the child.
Although the language of the statute itself does not limit a grandparent's right to petition for visitation, cases interpreting the statute have specifically defined the purpose and scope of § 767.245, STATS. The first case to do so was Van Cleve v. Hemminger, 141 Wis. 2d 543, 546-49, 415 N.W.2d 571, 573-74 (Ct. App. 1987). In Van Cleve, we reviewed the legislative history of § 767.245 and concluded that "the legislature did not intend that the state intervene in the parents' decision regarding their children's best interests when the family unit is intact." Id. at 549, 415 N.W.2d at 573. Therefore, we held that a grandparent does not have standing to petition the court for visitation unless "an underlying action affecting the family unit has previously been filed." Id.; accord Soergel, 154 Wis. 2d at 570, 453 N.W.2d at 626.
Here, Marquardt first argues that because Zachary's biological father, Cwiklinski, is under a continuing obligation to pay child support, the paternity action between Cwiklinski and Karen is still alive. Therefore, Marquardt contends that there is an underlying action affecting the children's family unit. This argument misses the point of Van Cleve.
[4]
As our supreme court explained in In re Z.J.H., 162 Wis. 2d 1002, 1022, 471 N.W.2d 202, 210 (1991):
*453 The rationale behind [Van Cleve and Soergel] was that the legislature did not intend to override a parent's determination of visitation unless an underlying action affecting the family unit had been filed, because in such an instance, ordering visitation with non-parents may help to mitigate the trauma and impact of a dissolving family relationship.
Thus, unless a previously filed action threatens to expose the children to the trauma of a dissolving family relationship, there is no justification for the state to interfere with the parents' decisions regarding what is in the best interest of their children. See id.
[5]
In this case, Marquardt has made no showing that the paternity action between Karen and Cwiklinski threatens to expose Zachary and Benjamin to the trauma and impact of a dissolving family relationship. In fact, the record shows quite the opposite. At the time Marquardt filed her petition for visitation, Zachary and Benjamin were living with Karen and David as part of an intact family unit. David and Karen were married, and David was fulfilling the function of father and provider to both children. Therefore, because Marquardt failed to show that the paternity action threatened the integrity of Zachary and Benjamin's family unit, the existence of the paternity action is not sufficient to meet the legal criteria enunciated in Van Cleve.
[6]
Marquardt, however, contends that because David is not Zachary's biological father, the children are not part of an intact family. As we have already noted, Zachary and Benjamin have lived with David and Karen for several years, and David has acted as father *454 to both children during that time. Further, we note that although Zachary's biological father remains obligated to pay child support, David is the only father that Zachary and Benjamin have ever known. Given these circumstances, we conclude that Zachary and Benjamin's family is intact, despite the fact that David is not Zachary's biological father. Therefore, the trial court properly dismissed Marquardt's petition for lack of standing.
[7]
On cross-appeal, Karen contends that Marquardt's petition for visitation and subsequent appeal were frivolous. Accordingly, she requests that we impose costs under § 814.025, STATS., for the filing of a frivolous appeal. We decline to do so. Marquardt's petition for visitation sought to limit the definition of an intact family solely to biological families. While we do not agree that this is a valid principle of law, we cannot say that Marquardt's desire to test the parameters of the legal definition of an intact family is so without merit that costs should be imposed. Accordingly, we affirm the trial court's dismissal of Marquardt's petition and decline to order costs based upon Karen's assertion that Marquardt's appeal was frivolous.
By the Court.Order affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/4169409/ | Court of Appeals
of the State of Georgia
ATLANTA,____________________
May 02, 2017
The Court of Appeals hereby passes the following order:
A17A0959. CHRISTOPHER DALRYMPLE v. THE STATE.
This Court granted the application for interlocutory appeal, filed by
Christopher Dalrymple, of the trial court's order denying his motion to suppress.
After a thorough consideration of the case, we have determined that the trial court did
not err. Accordingly, we conclude that the application for interlocutory appeal was
improvidently granted, and we vacate our order granting the application and dismiss
the appeal. This case shall be removed from the May 10, 2017 oral argument
calendar.
Court of Appeals of the State of Georgia
Clerk’s Office, Atlanta,____________________
05/02/2017
I certify that the above is a true extract from
the minutes of the Court of Appeals of Georgia.
Witness my signature and the seal of said court
hereto affixed the day and year last above written.
, Clerk. | 01-03-2023 | 05-17-2017 |
https://www.courtlistener.com/api/rest/v3/opinions/3044827/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1139
___________
George W. Ferebee, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Jeromey Smith; James Strain; Robert * District of South Dakota.
Lehmann; Darwin Coy; Jennifer Fox; *
Jeanie Melton; Mike Anderson; * [UNPUBLISHED]
Mark Steele; Jesse Sondreal; *
Michael O'Connor; Steve Hobart; *
Nicholas Hobart; George Clinton, *
*
Appellees. *
___________
Submitted: June 3, 2008
Filed: June 6, 2008
___________
Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
George Ferebee appeals the district court’s1 grant of summary judgment in
favor of defendants in this 42 U.S.C. § 1983 action. Following careful de novo
review, we agree that summary judgment was appropriate, see Mann v. Yarnell, 497
1
The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota.
F.3d 822, 825 (8th Cir. 2007) (standard of review), and we find no abuse of discretion
with regard to any of the court’s rulings involving discovery, see Nolan v. Thompson,
521 F.3d 983, 986 (8th Cir. 2008), attorney fees, see Hayes v. Faulkner County, Ark.,
388 F.3d 669, 676 (8th Cir. 2004), or sanctions, see Chi. Truck Drivers, Helpers &
Warehouse Workers Union Pension Fund v. Bhd. Labor Leasing, 166 F.3d 1269, 1270
(8th Cir. 1999).
The judgment is affirmed. See 8th Cir. R. 47B. Ferebee’s pending motions are
denied.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2695929/ | [Cite as Sumerel v. Dept. of Transp., 2010-Ohio-2185.]
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
ROBERT B. SUMEREL
Plaintiff
v.
DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2009-08489-AD
Clerk Miles C. Durfey
MEMORANDUM DECISION
FINDINGS OF FACT
{¶ 1} 1) Plaintiff, Robert B. Sumerel, related that he was traveling north on
Interstate 71 at the Dana Avenue Overpass in Hamilton County, when his 2009
Mercedes Benz S550 struck a pothole in the roadway causing tire and wheel damage to
the vehicle. Plaintiff recalled that the damage incident occurred on October 13, 2009
between 7:30 p.m. and 8:30 p.m.
{¶ 2} 2) Plaintiff asserted that the damage to his car was proximately caused
by negligence on the part of defendant, Department of Transportation (ODOT), in failing
to maintain the roadway free of hazards such as potholes. Plaintiff filed this complaint
seeking to recover $2,470.00, the stated cost of replacement tires and wheels. The
filing fee was paid.
{¶ 3} 3) Defendant denied liability based on the contention that no ODOT
personnel had any knowledge of the particular pothole on the roadway prior to plaintiff’s
property damage occurrence. Defendant advised that phone logs show no complaints
were on file regarding the specific damage-causing pothole which ODOT located “at
milepost 6.03 on I-71 in Hamilton County.” Defendant asserted that plaintiff failed to
offer any evidence to prove his property damage was attributable to conduct on the part
of ODOT personnel. Defendant explained that the ODOT “Hamilton County Manager
conducts roadway inspections on all state roadways within the county on a routine
basis, at least one to two times a month.” Apparently no potholes were discovered at
milepost 6.03 on Interstate 71 the last time that section of roadway was inspected
before October 13, 2009. Defendant’s maintenance records show that “three (3)
pothole patching operations (were) conducted in the general vicinity in the past six
months that included milepost 6.03.” The maintenance record (copy submitted)
indicates that ODOT crews patched potholes in the area including milepost 6.03 on
June 29, 2009, August 3, 2009, and September 18, 2009. Defendant contended that
plaintiff failed to produce any evidence to establish the length of time the pothole existed
prior to 7:30 p.m. on October 13, 2009. Defendant stated that “if ODOT personnel had
detected any potholes they would have been reported and promptly scheduled for
repair.”
{¶ 4} 4) Despite filing a response, plaintiff did not produce evidence to
establish the length of time that the pothole at milepost 6.03 existed prior to 7:30 p.m.
on October 13, 2009. Plaintiff acknowledged that “I have no idea how long the pothole
existed in the roadway prior to my incident.” Plaintiff argued that due to the fact
previous pothole patches have been made in the vicinity of milepost 6.03 “proves the
pothole existed.” Plaintiff did not offer any evidence to show that the pothole his vehicle
struck had been previously patched and that the patch deteriorated.
CONCLUSIONS OF LAW
{¶ 5} For plaintiff to prevail on a claim of negligence, he must prove, by a
preponderance of the evidence, that defendant owed him a duty, that it breached that
duty, and that the breach proximately caused his injuries. Armstrong v. Best Buy
Company, Inc., 99 Ohio St. 3d 79, 2003-Ohio-2573,¶8 citing Menifee v. Ohio Welding
Products, Inc. (1984), 15 Ohio St. 3d 75, 77, 15 OBR 179, 472 N.E. 2d 707. Plaintiff
has the burden of proving, by a preponderance of the evidence, that he suffered a loss
and that this loss was proximately caused by defendant’s negligence. Barnum v. Ohio
State University (1977), 76-0368-AD. However, “[i]t is the duty of a party on whom te
burden of proof rests to produce evidence which furnishes a reasonable basis for
sustaining his claim. If the evidence so produced furnishes only a basis for a choice
among different possibilities as to any issue in the case, he fails to sustain such
burden.” Paragraph three of the syllabus in Steven v. Indus. Comm. (1945), 145 Ohio
St. 198, 30 O.O. 415, 61 N.E. 2d 198, approved and followed.
{¶ 6} Defendant has the duty to maintain its highways in a reasonably safe
condition for the motoring public. Knickel v. Ohio Department of Transportation (1976),
49 Ohio App. 2d 335, 3 O.O. 3d 413, 361 N.E. 2d 486. However, defendant is not an
insurer of the safety of its highways. See Kniskern v. Township of Somerford (1996),
112 Ohio App. 3d 189, 678 N.E. 2d 273; Rhodus v. Ohio Dept. of Transp. (1990), 67
Ohio App. 3d 723, 588 N.E. 2d 864.
{¶ 7} In order to prove a breach of the duty to maintain the highways, plaintiff
must prove, by a preponderance of the evidence, that defendant had actual or
constructive notice of the precise condition or defect alleged to have caused the
accident. McClellan v. ODOT (1986), 34 Ohio App. 3d 247, 517 N.E. 2d 1388.
Defendant is only liable for roadway conditions of which it has notice but fails to
reasonably correct. Bussard v. Dept. of Transp. (1986), 31 Ohio Misc. 2d 1, 31 OBR
64, 507 N.E. 2d 1179. There is no evidence that defendant had actual notice of the
pothole. Therefore, for the court to find liability on a notice theory, evidence of
constructive notice of the pothole must be presented.
{¶ 8} “[C]onstructive notice is that which the law regards as sufficient to give
notice and is regarded as a substitute for actual notice or knowledge.” In re Estate of
Fahle (1950), 90 Ohio App. 195, 197-198, 48 O.O. 231, 105 N.E. 2d 429. “A finding of
constructive notice is a determination the court must make on the facts of each case not
simply by applying a pre-set time standard for the discovery of certain road hazards.”
Bussard, at 4. “Obviously, the requisite length of time sufficient to constitute
constructive notice varies with each specific situation.” Danko v. Ohio Dept. of Transp.
(Feb. 4, 1993), Franklin App. 92AP-1183. In order for there to be a finding of
constructive notice, plaintiff must prove, by a preponderance of the evidence, that
sufficient time has elapsed after the dangerous condition appears, so that under the
circumstances defendant should have acquired knowledge of its existence. Guiher v.
Dept. of Transportation (1978), 78-0126-AD ; Gelarden v. Ohio Dept. of Transp., Dist. 4,
Ct. of Cl. No. 2007-02521-AD, 2007-Ohio-3047.
{¶ 9} The trier of fact is precluded from making an inference of defendant’s
constructive notice, unless evidence is presented in respect to the time that the pothole
appeared on the roadway. Spires v. Ohio Highway Department (1988), 61 Ohio Misc.
2d 262, 577 N.E. 2d 458. No evidence was presented to establish the time that the
particular pothole was present. Size of the defect (pothole) is insufficient to show notice
or duration of existence. O’Neil v. Department of Transportation (1988), 61 Ohio Misc.
2d 287, 587 N.E. 2d 891. Plaintiff has failed to prove that defendant had constructive
notice of the pothole. Plaintiff has not produced any evidence to infer that defendant, in
a general sense, maintains its highways negligently or that defendant’s acts caused the
defective condition. Herlihy v. Ohio Department of Transportation (1999), 99-07011-AD.
Therefore, defendant is not liable for any damage that plaintiff may have suffered from
the roadway defect.
Court of Claims of Ohio
The Ohio Judicial Center
65 South Front Street, Third Floor
Columbus, OH 43215
614.387.9800 or 1.800.824.8263
www.cco.state.oh.us
ROBERT B. SUMEREL
Plaintiff
v.
DEPARTMENT OF TRANSPORTATION
Defendant
Case No. 2009-08489
Clerk Miles C. Durfey
ENTRY OF ADMINISTRATIVE DETERMINATION
Having considered all the evidence in the claim file and, for the reasons set forth
in the memorandum decision filed concurrently herewith, judgment is rendered in favor
of defendant. Court costs are assessed against plaintiff.
________________________________
MILES C. DURFEY
Clerk
Entry cc:
Robert B. Sumerel Jolene M. Molitoris, Director
8675 Bridgewater Lane Department of Transportation
cincinnati, Ohio 45243 1980 West Broad Street
Columbus, Ohio 43223
RDK/laa
1/12
Filed 2/4/10
Sent to S.C. reporter 5/14/10 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1598210/ | 3 So. 3d 580 (2009)
Curtis JOHNSON, Plaintiff-Appellee,
v.
BOSSIER PARISH SCHOOL BOARD, Defendant-Appellant.
No. 43,817-WCA.
Court of Appeal of Louisiana, Second Circuit.
January 21, 2009.
Rehearing Denied February 19, 2009.
*581 Hammonds & Sills by Linda Kay Ewbank, Jon Keith Guice, Baton Rouge, for Appellant.
*582 Davis Law Office, LLC by S.P. Davis, Andrew Lee Randall, Jr., for Appellee.
Before DREW, MOORE and LOLLEY, JJ.
DREW, J.
In this workers' compensation matter, the Bossier Parish School Board ("Board") appeals a judgment ordering the reinstatement of wage benefits, the payment of attorney fees, and the assessment of a penalty.
We affirm.
FACTS
Curtis Johnson was employed as a janitor at Plain Dealing Elementary School. He begin working there in 1984 when he retired from the Army after 26 years of service. On July 13, 1999, Johnson was riding on a lawn tractor mowing the grass at the school when the tractor struck a large hole, causing his abdomen to strike the steering wheel and aggravating a preexisting abdominal hernia. According to the physician who examined Johnson for a utilization review, the trauma caused a hematoma and probably led to the formation of fistulas.
Johnson went home, returned to work the next day, and was told to go back home because of a bad abdominal bruise. After seeking medical treatment, he subsequently underwent several surgeries for the placement of mesh to close the abdominal incision, and to deal with infections associated with the mesh.
Johnson returned to work and was helped by others to do his job. He retired in June of 2001 because he was no longer able to do his job and because of the risks associated with his hernia.
The Board initially disputed that Johnson's condition had been caused by the accident. However, in November of 2002, the parties reached a settlement in which the Board agreed to pay $34,318.17 to Johnson in past compensation benefits, attorney fees, and penalties.
The Board is self-insured. A claim abstract from Hospital Services of Louisiana, Inc. ("HSLI"), the third-party claims administrator for the Board, reflects that Johnson received:
A temporary total disability ("TTD") payment of $863.20 for November of 2002.
Monthly "wage loss" payments of $863.20 from December of 2002 to September of 2003.
Monthly TTD payments of $863.20 from October of 2003 to March of 2005.
On April 15, 2005, Linda Hollingsworth, an adjuster for HSLI, wrote to Johnson's counsel that because Johnson returned to work but then retired in 2001, his benefits were to be changed to Supplemental Earnings Benefits ("SEB"). Johnson asserted that this move was arbitrary and capricious and the current litigation ensued. HSLI's claim abstract shows that Johnson received monthly "wage loss" payments of $863.20 from April 2005 to October 2005 and a monthly "SEB Adjustment" of $863.20 from November 2005 to May 2007.
On April 20, 2007, counsel for the Board wrote to Johnson's counsel that SEB should have terminated on March 31, 2007, as that totaled 104 weeks of payment. Counsel further wrote that SEB would continue to be paid under protest. Nevertheless, these payments were stopped the next month.[1]
Following a trial on the merits, the WCJ ruled in Johnson's favor. The WCJ concluded that: Johnson's decision to retire *583 was entirely for medical reasons; he had been rendered permanently and totally disabled by the July 1999 accident; and the Board acted arbitrarily and capriciously in changing Johnson's disability from TTD to SEB, and then terminating SEB. The Board was ordered to reinstate wage benefits of $862.00 retroactively beginning with the June 2007 payment but excluding the August 2007 payment. The Board was assessed a penalty of $2,000.00 and ordered to pay attorney fees of $3,500.00.
DISCUSSION
Factual findings in workers' compensation cases are subject to the manifest error or clearly wrong standard of appellate review. Banks v. Industrial Roofing & Sheet Metal Works, Inc., 96-2840 (La.7/1/97), 696 So. 2d 551. In applying the manifest error-clearly wrong standard, the appellate court must determine not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Id. When there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed even though the appellate court may feel that its own inferences and evaluations are as reasonable. Rosell v. ESCO, 549 So. 2d 840 (La.1989); Arceneaux v. Domingue, 365 So. 2d 1330 (La.1978). Where there are two permissible views of the evidence, the fact finder's choice between them cannot be manifestly erroneous or clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So. 2d 880 (La.1993).
Level of Disability
The Board first argues on appeal that the WCJ erred in finding that Johnson had been permanently and totally disabled by the 1999 accident.
The relevant provisions regarding permanent total disability are found in La. R.S. 23:1221(2), which states:
(a) For any injury producing permanent total disability of an employee to engage in any self-employment or occupation for wages, whether or not the same or a similar occupation as that in which the employee was customarily engaged when injured, and whether or not an occupation for which the employee at the time of injury was particularly fitted by reason of education, training, and experience, sixty-six and two-thirds percent of wages during the period of such disability.
* * * * *
(c) For purposes of Subparagraph (2)(a) of this Paragraph, whenever the employee is not engaged in any employment or self-employment as described in Subparagraph (2)(b) of this Paragraph, compensation for permanent total disability shall be awarded only if the employee proves by clear and convincing evidence, unaided by any presumption of disability, that the employee is physically unable to engage in any employment or self-employment, regardless of the nature or character of the employment or self-employment, including, but not limited to, any and all odd-lot employment, sheltered employment, or employment while working in any pain, notwithstanding the location or availability of any such employment or self-employment.
Johnson's duties as janitor included maintaining the outside of the school and keeping one building clean. He mowed the grass, cut hedges, and trimmed weeds. This yard work, which Johnson described as heavy duty, would be done two to three days a week during the spring and summer. He cleaned the building by emptying the trash cans, mopping and sweeping *584 on a daily basis, and waxing the floors twice a week. His job required him to lift objects, as well as to stoop and bend regularly.
Johnson had no problems doing his job before the accident. Two student workers would help him after school, but he did not need anyone to physically help him perform his job. Johnson also said that his high blood pressure and diabetes did not keep him from doing his job prior to the accident.
Johnson was unable to physically perform his job when he returned to work after the accident. He was limited to light-duty work, but according to Sara Perkins, the head custodian at Plain Dealing Elementary, the school did not have light-duty work for him to do, so accommodations were made. Student workers helped Johnson in the afternoon, and Perkins' husband was paid out of the school's benevolent fund to do the heavy work for Johnson.
Johnson was basically allowed to do little more than push a broom. In addition, Johnson was allowed to return home once in the morning and once in the afternoon in order to bathe and to have his bandages changed.
Johnson believed that if he continued working even with the accommodations, he risked a dangerous situation involving his hernia, and this belief was not unfounded.
Dr. Michael Banda first met Johnson in 2000 when he was being treated by Dr. John Austin. Dr. Banda assisted Dr. Austin in a surgery to remove a small intestinal fistula caused by erosion of the small intestine into the mesh.
Dr. Banda began treating Johnson in January of 2001 after Dr. Austin retired. He performed surgery that year on Johnson because an abscess had formed over the prior wound site. Dr. Banda wrote in October of 2001 that the mesh used in the hernia repair had become infected, and that Johnson had been unable to return to work because of his open wounds and was currently being treated for those wounds. The infections associated with the mesh were a recurring problem.
In September of 2002, Dr. Banda wrote that several surgeries had been performed on Johnson to drain and debride abscesses associated with the mesh. The mesh was completely removed in January of 2002 and was not replaced because of his history of infections associated with the mesh. Johnson was left with a very large anterior abdominal wall hernia, meaning there was only a thin layer of skin and tissue over his abdominal organs. Dr. Banda believed that this condition prevented him from returning to his pre-accident employment as a janitor. Dr. Banda wrote that activities such as stooping, bending, lifting, climbing, and operating machinery would be painful as well as dangerous. Dr. Banda thought that although Johnson's condition was permanent, Johnson could work in a job limited to sitting and work of a clerical nature. Dr. Banda considered Johnson to be permanently disabled from a functional/physical standpoint. In a December 2005 letter, Dr. Banda again wrote that from a functional/physical standpoint, he considered Johnson to be permanently disabled.
Dr. Banda was deposed in 2007. He explained that when he wrote in 2005 that Johnson was disabled, he was specifically referring to janitorial work. The statement of disability in the 2002 letter was in reference to employment in general. Johnson's medical condition had not changed between 2002 and 2005.
Dr. Banda recognized the precariousness of Johnson's hernia. He explained that Johnson's intestines are basically outside the abdominal cavity and are protected by one layer of skin, which presents the *585 risk of devastating consequences from something as minor as a little poke. At the time of his deposition, Dr. Banda thought that Johnson was fully disabled and should not be in the work force.
Dr. Banda recommended that Johnson stoop no longer than necessary to pick up a newspaper, bend no longer than necessary to remove a shoe or grab a chair, and lift no more than a plate of food. He thought Johnson would become uncomfortable after sitting in one position for more than 30 minutes or standing for more than 5-10 minutes.
Johnson was approximately 64 years old at the time he retired. He has never had secretarial or clerical training. No training for any different job was offered to him. He was never subjected to a Functional Capacity Evaluation, and he has never been referred to a vocational counselor.
It appears from the record that Johnson was well liked by his coworkers at Plain Dealing Elementary, and they did all they could to help him maintain his job for as long as possible. They apparently wanted Johnson to feel useful in spite of his serious injury, as he was even told that although there was no light duty work for him to do, he was still needed at the school to keep the students in line because they respected him as a retired veteran.
Based upon this record, we cannot conclude that the WCJ was clearly wrong in finding that Johnson was permanently and totally disabled as a result of the 1999 accident.
Retirement
The Board next argues that the WCJ erred in finding that Johnson retired for medical reasons. The Board asserts that Johnson voluntarily left the work force after he completed the Deferred Retirement Option Program ("DROP").
Frank Rougeau, Director of Finance for the Board, explained that all the workers' compensation claims by school employees come through his office. Rougeau also explained that an employee actually retires when he enters DROP even though he continues working.
Johnson entered DROP in August of 1997, and would have completed DROP when he retired in June of 2001. The purpose of entering DROP was not to retire but to divert his retirement withholding into a special DROP account and not to the retirement system for a period of three years. Actual retirement is not required at the end of the three-year DROP period, and continued employment is not uncommon, as Rougeau confirmed that numerous employees continue working past the end of the DROP period. Rougeau was never advised that Johnson was retiring because of his medical condition.
Johnson testified that he did not want to retire, but did so on the advice of his doctor. He was going to retire in February of 2001, as advised by Dr. Banda, but the school's principal wanted him to wait until the end of the school year. Although Johnson had heart valve surgery shortly after he retired, Dr. Banda did not think his heart disease and diabetes were disabling as they predated the accident.
Dr. Banda testified that he was not really aware that Johnson had retired in 2001. However, Dr. Banda agreed that Johnson left the work force because he was medically unable to perform that job. Dr. Banda also stated he had no reason not to believe Johnson's account that after surgery in 2001 he recommended that Johnson retire.
Johnson was placing himself at risk of infection or even death by continuing to work, even with accommodations. He recognized *586 this risk and retired. There was no manifest error in the WCJ's finding that Johnson's retirement was medically necessary.
Judicial Confession
The Board contends that the WCJ erred in finding that the 2002 settlement was a judicial confession that Johnson was temporarily and totally disabled. In the oral reasons for judgment, the WCJ noted "a settlement agreement in which there [was] basically a judicial confession that Mr. Johnson is temporarily and totally disabled...." The Board argues that there is no admission, indication, and/or stipulation anywhere in the settlement documents as to the type of wage benefits being settled therein. However, the settlement documents cannot be examined in isolation.
What led to the settlement was a dispute over whether Johnson's injuries had been caused by the accident. According to the joint petition for approval of settlement, the Board agreed to bring Johnson's "compensation benefits up to date and to pay such benefits prospectively." The reason the settlement documents cannot be examined in isolation is that the settlement was treated by the Board as applying to benefits for temporary total disability. The Board's own exhibit, the HSLI claim abstract, gives the settlement the designation of "TEMP TOT DIS." This is also the same designation used for the payments made on November 20, 2002, and from October 22, 2003, to March 22, 2005.
We find no error in the WCJ treating the settlement as a judicial confession that Johnson was temporarily and totally disabled.
Penalty and Attorney Fees
In its final assignment of error, the Board contends the WCJ erred in awarding attorney fees and assessing a penalty for changing benefits to SEB and then terminating them.
Penalties are stricti juris and should be imposed only when the facts clearly negate good faith and just cause in connection with the refusal to pay. Young v. Christus Schumpert Medical Center, 39,593 (La.App.2d Cir.5/11/05), 902 So. 2d 1180; Lee v. Schumpert, 36,733 (La.App.2d Cir.1/29/03), 836 So. 2d 1214. Nevertheless, a WCJ has great discretion in awarding or denying penalties and attorney fees. Nowlin v. Breck Const. Co., 30,622 (La. App.2d Cir.6/24/98), 715 So. 2d 112.
La. R.S. 23:1201(I) states, in part:
Any employer or insurer who at any time discontinues payment of claims due and arising under this Chapter, when such discontinuance is found to be arbitrary, capricious, or without probable cause, shall be subject to the payment of a penalty not to exceed eight thousand dollars and a reasonable attorney fee for the prosecution and collection of such claims.
The phrase "arbitrary and capricious" as used in this context has been defined as follows:
Arbitrary and capricious behavior consists of willful and unreasoning action, without consideration and regard for facts and circumstances presented, or of seemingly unfounded motivation. Stated another way, such behavior arises from unrestrained exercise of the will or personal preference or lacks a predictable pattern.
Brown v. Texas-LA Cartage Inc., 98-1063 (La.12/01/98), 721 So. 2d 885, 890 (citations omitted).
Hollingsworth, the adjuster at the time the benefits were switched to SEB and then terminated, did not testify. She had retired in November of 2007. Patrick Blanchard, a litigation specialist and regional *587 operations manager from HSLI, testified, but his personal knowledge of this matter was very limited as he had reviewed the case file only to prepare for testimony about the dates and the amounts of checks sent to Johnson. Blanchard had never spoken with Hollingsworth about the file, or about her basis for changing Johnson's benefits. Blanchard believed that the basis for Hollingsworth changing the benefits from TTD to SEB was that Johnson had retired on regular retirement status and not on disability retirement status. The April 2005 letter from Hollingsworth to Johnson's counsel states as much. Blanchard also believed that the reason Hollingsworth terminated SEB was that Johnson had received them in excess of 104 weeks.
Rougeau discussed with Hollingsworth that Johnson was in DROP and had retired. Hollingsworth would normally make recommendations to the Board about whether or not to pay benefits, and Rougeau would make the final decision. Rougeau decided to switch benefits from TTD to SEB, and then to terminate benefits, because Johnson had voluntarily retired.
Johnson retired in 2001. Benefits were switched to SEB four years after Johnson's retirement. If the retirement was the Board's motivation, they certainly did not act with much haste. Rougeau could not answer why the TTD benefits were not terminated immediately upon Johnson's retirement. Rougeau never talked to Johnson, Dr. Austin, Dr. Banda, or Dr. L. Keith Mason, the utilization review physician, before making his decision. In light of this, we cannot conclude the WCJ abused its discretion in assessing a penalty and awarding attorney fees.
CONCLUSION
With the Board to pay appeal costs of $145.50, the judgment is AFFIRMED.
APPLICATION FOR REHEARING
Before WILLIAMS, GASKINS, DREW, MOORE and LOLLEY, JJ.
Rehearing denied.
NOTES
[1] A payment was sent in error in August of 2007. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598292/ | 526 N.W.2d 298 (1995)
STATE of Iowa, Appellant,
v.
J. Leonard AZNEER, Appellee.
No. 94-196.
Supreme Court of Iowa.
January 18, 1995.
*299 Bonnie J. Campbell, Atty. Gen., Mary Tabor, Asst. Atty. Gen., John P. Sarcone, County Atty., and Fred W. Gay, Asst. County Atty., for appellant.
Nicholas Critelli, Jr. of Nick Critelli Associates, P.C., Des Moines, for appellee.
Considered by McGIVERIN, C.J., and HARRIS, LARSON, CARTER, and ANDREASEN, JJ.
HARRIS, Justice.
We granted discretionary review of a trial court ruling interpreting the word "willfully" in Iowa Code section 56.16 (1993) (providing penal consequences of violating the campaign finance disclosure law). The trial court held the term means "voluntary and intentional violation of a known legal duty." The State challenges this interpretation and contends the word should be held to mean "intentionally, deliberately, and knowingly." We affirm.
The facts are stipulated. Defendant J. Leonard Azneer made political contributions in his own name, for which he was reimbursed by his employer, University of Osteopathic Medicine and Health Sciences. Several other university employees who also made contributions were reimbursed by the university through Azneer. The parties stipulated that Azneer had no knowledge of the existence of any provision of Iowa Code chapter 56. The only issue in the case is the construction of the term "willfully" as it appears in the statute:
[Section 56.12] A person shall not make a contribution or expenditure in the name of another....
. . . .
[Section 56.16] Any person who willfully violates any provisions of this chapter shall upon conviction, be guilty of a serious misdemeanor.
(Emphasis added.) In matters of statutory construction, our review is on error. Iowa R.App.P. 4.
I. Courts have long struggled for an all-encompassing definition of the word "willfully." These efforts have been unsuccessful because no generic term can accommodate all the various offenses in which the subject's will is an intended element of a crime. See Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418, 422 (1943) ("willfully... a word of many meanings, its construction often being influenced by its context"); State v. Osborn, 368 N.W.2d 68, 70 (Iowa 1985) (same).
Better reasoned cases suggest how to choose between the competing definitions urged here. The State's suggested definition is appropriate for statutes that criminalize conduct that is inherently wrong. Azneer's suggested definition is appropriate for statutes that criminalize conduct that, although not inherently wrong, the legislature wishes to outlaw for some other reason. The choice is made by categorizing the conduct in accordance with the classic distinction between acts that are malum in se (wrong in themselves) and those that are merely malum prohibitum (wrong because prohibited). According to one respected commentator:
[T]he vast network of regulatory offenses which make up a large part of today's criminal law does not stem from the mores of the community, and so "moral education no longer serves us as a guide as to what is prohibited." Under these circumstances, where one's moral attitudes may not be relied upon to avoid the forbidden conduct, it may seem particularly severe for the law never to recognize ignorance or mistake of the criminal law as a defense. Moreover, some would question whether it is desirable to characterize as criminal an individual who has not demonstrated any degree of social dangerousness, that is, a person whose conduct is not antisocial because (i) he reasonably thought the conduct was not criminal, and (ii) the conduct is not by its nature immoral. *300 Wayne R. LaFave and Austin W. Scott, Jr., Criminal Laws, 414-15 (2d ed. 1986). This principle was explored in some detail in United States v. Aversa, 984 F.2d 493, 496-502 (1st Cir.1993), vacated sub nom. Donovan v. United States, ___ U.S. ___, 114 S.Ct. 873, 127 L.Ed.2d 70 (1994).
Aversa was charged with violation of the federal bank records act. The court thus felt obliged to apply a third definition: "the violation of a known legal duty or the reckless disregard of the same." The Aversa Court reasoned that this hybrid definition was appropriate for the specialized conduct which involves an extremely small category of cases. This definition however seems to have been later rejected by the United States Supreme Court. Ratzlaf v. United States, 510 U.S. ___, ____, 114 S.Ct. 655, 657, 126 L.Ed.2d 615, 620 (1994) ("willfulness" requires showing "defendant acted with knowledge that his conduct was unlawful").
In urging its definition, the State cites our cases which correctly applied it to offenses that were malum in se. See State v. Dunn, 199 N.W.2d 104, 107 (Iowa 1972) (arson); State v. Wallace, 259 Iowa 765, 773, 145 N.W.2d 615, 620 (1966) (kidnapping). They are not in point for statutes criminalizing conduct that is merely malum prohibitum. Azneer's argument concedes the State's suggested definition would apply for these and all other crimes where the conduct is obviously wrong even in the absence of a criminal statute.
II. We think Iowa Code section 56.12 addresses conduct that is malum prohibitum. There is clearly nothing inherently wrong in making a political contribution. Some stealth or surreptitiousness might be involved in making the political contribution in the name of another. But we cannot say that to do so is malum in se. It is easy to imagine employers who wish to make political contributions without being exposed to any political consequences. The practice posed by the facts stipulated here may well not engender admiration. The legislature was obviously prompted to criminalize them. But the practice posed falls far short of qualifying as malum in se.
To emphasize the point, Azneer points to Iowa Code section 56.15 (prohibiting certain entities from making political contributions). Section 56.15, in contrast with section 56.16, does not have a culpable mental state requirement.[1] The legislature's inclusion of the willfulness requirement in section 56.16, while at the same time excluding it in section 56.15, must have been deliberate.
Although the State sees this holding as an unreasonable erosion of the rubric that ignorance of the law is no excuse, we do not. The rule we apply is a narrow one. It goes only to interpret the word "willfully," a word the courts have long considered to be somewhat ambiguous. The issue arose only because the legislature employed the word in Iowa Code section 56.16. So our holding does not address statutes that do not employ the word "willfully."
Our holding is consistent with language we quoted and approved in State v. Clark, 346 N.W.2d 510, 512 (Iowa 1984):
So long as the forbidden act is one which is commonly understood to be morally questionable, or one which unjustifiably endangers persons or property, or is an activity which is commonly regulated, such as the operation of motor vehicles, the [presumption that everyone knows the law] is not unreasonably burdensome.
(Quoting 4 J. Yeager and R. Carlson, Iowa Practice § 10 (1979).)
The trial court was correct in holding that the term "willfully," as used in Iowa Code section 56.16, means a voluntary and intentional violation of a known legal duty.
AFFIRMED.
NOTES
[1] "Any person convicted of a violation of any of the provisions of this section shall be guilty of a serious misdemeanor." Iowa Code § 15.15(5). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1027217/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4306
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERRELL BRUNSON,
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-00372-REP-1)
Submitted: October 20, 2008 Decided: November 17, 2008
Before NIEMEYER and TRAXLER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Paul G. Gill,
Assistant Federal Public Defender, Richmond, Virginia, for
Appellant. Chuck Rosenberg, United States Attorney, Stephen W.
Miller, Assistant United States Attorney, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Derrell Brunson appeals his conviction after a jury
trial of one count of possession with the intent to distribute
fifty grams or more of cocaine base, in violation of 21 U.S.C.A.
§ 841 (West 1999 & Supp. 2008). We affirm.
Brunson contends that the district court erred in
denying his motion for a new trial, which was based on the
Government’s failure to turn over the inconclusive results of a
field test performed on the substance taken off his person when
he was arrested. We review the district court’s ruling on a
motion for a new trial for abuse of discretion. See United
States v. Fulks, 454 F.3d 410, 431 (4th Cir. 2006).
The Due Process clause requires that the Government
disclose to the defense prior to trial any impeaching or
exculpatory evidence in its possession. See Giglio v. United
States, 405 U.S. 150, 153-55 (1972) (requiring disclosure of
evidence affecting the credibility of prosecution witnesses);
Brady v. Maryland, 373 U.S. 83, 86-88 (1963) (requiring
disclosure of exculpatory evidence). Due process is violated by
a failure to disclose, however, only if the evidence in
question: (1) is favorable to the defendant, because it is
either exculpatory or impeaching; (2) was suppressed by the
Government; and (3) is material in that its suppression
prejudiced the defendant. See Strickler v. Greene, 527 U.S.
2
263, 281-82 (1999). Undisclosed evidence is material when its
cumulative effect is such that “there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different.” Kyles v. Whitley, 515 U.S. 419, 433-34 (1995)
(internal quotation marks omitted). A reasonable probability is
one sufficient to “undermine[] confidence” in the outcome. Id.
at 434.
After reviewing the record, we conclude that Brunson
fails to demonstrate “a reasonable probability” that the outcome
of the proceeding would have been different had the evidence
been disclosed to the defense. Id. at 433-34. Though the
evidence may have had limited impeachment value, its
nondisclosure does not undermine confidence in the result of his
trial. See id. at 434. Accordingly, the district court did not
abuse its discretion in denying Brunson’s motion for a new
trial. We therefore affirm Brunson’s conviction. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
3 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1027244/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4075
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DEBORAH LOVING,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Walter D. Kelley, Jr.,
District Judge. (2:07-cr-00066-WDK-JEB-1)
Submitted: October 30, 2008 Decided: November 25, 2008
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith Loren
Kimball, Assistant Federal Public Defender, Norfolk, Virginia,
for Appellant. Chuck Rosenberg, United States Attorney, Alan M.
Salsbury, Assistant United States Attorney, Marin B.
Hoplamazian, Third Year Law Student, Norfolk, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Deborah Loving was convicted by a jury of health care
fraud, 18 U.S.C. § 1347 (2006) (Count 1), and false statements
relating to health care matters, 18 U.S.C. § 1035 (2006) (Counts
2-30). She received a sentence of forty-one months
imprisonment. Loving appeals her sentence, contesting the
district court’s determination that she abused a position of
trust, U.S. Sentencing Guidelines Manual § 3B1.3 (2007), and
arguing that the district court mistakenly believed it lacked
authority to impose a variance sentence below the guideline
range under 18 U.S.C. § 3553(a) (2006). We affirm.
Loving, who was a registered nurse, owned and operated
a private care nursing service which served Medicaid patients.
To qualify for Medicaid reimbursement, Loving was required to
employ an approved registered nurse to supervise all her
personal care aides and visit each patient every thirty days.
She also had to provide documentation showing that her personal
care aides had completed a forty-hour training program approved
by the Virginia Department of Medical Assistance Services, and
provide a criminal history background check for each aide to
show that none of them had been convicted of certain crimes that
would disqualify them from working with the elderly and
disabled. Loving did not comply with these requirements. When
her company was audited, she falsely claimed to have employed
2
until recently a registered nurse named Nataly Alfrede, for whom
she provided a fake resume and licensing information. She also
gave the auditors thirty-three faked criminal background checks.
At trial, Loving testified that she had performed the monthly
supervisory visits herself, and denied creating the fake
criminal background checks. She said Nataly Alfrede was a real
person she had hired, but who failed to show up for work,
although the auditors found no evidence that such a person
existed.
In sentencing Loving, the district court gave her a
two-level adjustment for abuse of a position of trust, finding
that its decision was controlled by United States v. Bolden, 325
F.3d 471, 504-05 (4th Cir. 2003) (applying abuse of trust
adjustment to nursing home operator who carried out scheme to
defraud Medicaid). The court decided against a downward
variance sentence and sentenced Loving at the bottom of the
advisory guideline range.
Under § 3B1.3, an adjustment is required if “the
defendant abused a position of public or private trust . . . in
a manner that significantly facilitated the commission or
concealment of the offense.” A “position of trust” is
“characterized by professional or managerial discretion.” USSG
§ 3B1.1, comment. (n.1). This court reviews de novo the
district court’s determination that the defendant held a
3
position of trust under § 3B1.3, and reviews the factual
findings that support the adjustment for clear error. United
States v. Ebersole, 411 F.3d 517, 535-36 (4th Cir. 2005); United
States v. Caplinger, 339 F.3d 226, 235-36 (4th Cir. 2003).
Loving argues on appeal that she did not occupy a position of
trust with respect to Medicaid because she did not receive
“prospective payments” from Medicaid, as the defendants in
Bolden did in connection with their operation of a nursing home.
However, the timing of payments fraudulently obtained from
Medicare or Medicaid is not significant. See United States
v. Hoogenboom, 209 F.3d 665, 671 (7th Cir. 2000) (psychologist
who billed Medicare for services not provided abused position of
trust); United States v. Gieger, 190 F.3d 661, 665 (5th Cir.
1999) (owners of ambulance service who falsely billed Medicare
for non-ambulatory patients abused position of trust).
Loving also contends that her relationship with
Medicaid was merely contractual, not fiduciary, because Medicaid
required her to provide certain services without giving her any
discretion about what services to render, such as a physician
dealing with Medicaid might have. Loving relies on United
States v. Mills, 138 F.3d 928, 941 (11th Cir. 1998) (following
United States v. Garrison, 133 F.3d 831, 838 (11th Cir. 1998)),
and United States v. Williams, 527 F.3d 1235 (11th Cir. 2008).
In Williams, which involved wire fraud and theft of federal
4
funds in a federal program for community service, the Eleventh
Circuit reiterated its view, set out in Mills and Garrison, that
“lying to Medicare did not constitute any breach of public
trust,” and stated that, “for the abuse-of-trust adjustment to
apply in the fraud context, there must be a showing that the
victim placed a special trust in the defendant beyond ordinary
reliance on the defendant’s integrity and honesty that underlies
every fraud scenario.” Williams, 527 F.3d at 1250-51.
Loving’s argument is unavailing because, in Bolden, we
rejected the Eleventh Circuit’s approach and agreed with the
Second Circuit that “[b]ecause of the discretion Medicaid
confers upon care providers . . . such providers owe a fiduciary
duty to Medicaid.” Bolden, 325 F.3d at 471 n.1 (“[W]e see it as
paramount that Medicaid be able to ‘trust’ its service
providers”) (citing United States v. Wright, 160 F.3d 905, 910-
11 (2d Cir. 1998)). Therefore, we conclude that the district
court did not err in deciding that Loving had a position of
trust.
On appeal, Loving argues for the first time that the
abuse of trust adjustment should not apply because the conduct
on which it is based is the same as the offense for which she
was convicted. Because Loving did not raise the issue of double
counting in the district court, our review is for plain error.
United States v. Olano, 507 U.S. 725, 732-37 (1993).
5
Guideline section 3B1.3 expressly provides that,
“[t]his adjustment may not be used if an abuse of trust or skill
is included in the base offense level or specific offense
characteristic.” Loving contends that both her base offense
level under § 2B1.1 and the adjustment for abuse of a position
of trust under § 3B1.3 were based on the submission of false
information to Medicaid. Her reliance on United States
v. Cruz-Laureano, 440 F.3d 44, 48-49 (1st Cir. 2006), is
misplaced because her abuse of trust was not addressed either in
the base offense level under § 2B1.1 or in a specific offense
characteristic.
In addition, Loving relies on the alternative holding
in Garrison that it was impermissible double counting to give an
adjustment for abuse of trust when the conduct underlying the
adjustment and the “base fraud crime” (submission of false
statements for Medicare reimbursement) was the same. See
Garrison, 133 F.3d at 842-43. Last, she cites United States
v. Broderson, 67 F.3d 452, 456 (2d Cir. 1995), which held that
“[t]he conduct that is the basis of the conviction must be
independently criminal . . . and not itself the abuse of trust.”
However, we have not adopted the Eleventh Circuit’s restrictive
holding on double counting in fraud offenses. We are satisfied
that the district court did not plainly err in giving Loving an
adjustment for abuse of a position of trust.
6
Finally, Loving contends that the district court
erroneously believed it lacked the authority to impose a
sentence below the guideline range based solely on its view that
the guideline was too high for her offense, in effect treating
the guideline as mandatory. In imposing Loving’s sentence, the
court stated the following:
[W]hile I think that the guideline range is probably
too harsh for what you did, I don’t think it’s too
harsh for what you did in the sense of the billing
problems. I don’t think it’s too harsh in terms of
what followed next and all of the creation of
documents and the falsifications and then the lying on
the stand.
A sentence is reviewed for abuse of discretion, Gall
v. United States, 128 S. Ct. 586, 597 (2007), with the review
encompassing both procedural soundness and substantive
reasonableness. Id. In Gall and in Kimbrough v. United States,
128 S. Ct. 558 (2007), the Supreme Court clarified the
sentencing judge’s authority to impose a sentence outside the
guideline range “based solely on the judge’s view that the
Guidelines range fails properly to reflect § 3553(a)
considerations.” Kimbrough, 128 S. Ct. at 575 (internal
quotation and citation omitted). Loving was sentenced before
Gall and Kimbrough were decided, so the district court did not
have the benefit of those decisions.
Either treating the Guidelines as mandatory or failing
to consider the § 3553(a) factors adequately would constitute a
7
“significant procedural error.” Gall, 128 S. Ct. at 597.
However, in this case, after stating its belief that the
guideline range was too severe for the crime Loving committed,
the court went on to say that the guideline range was not too
harsh in light of her attempt to cover up the crime, which led
her to create false documents of various kinds and ultimately to
commit perjury at her trial. Thus, the court concluded that the
guideline range was not too high in light of Loving’s overall
conduct, and that none of the § 3553(a) factors warranted a
sentence outside the guideline range.
Applying a presumption of reasonableness to the
guideline sentence, see United States v. Go, 517 F.3d 216, 218
(4th Cir. 2008); see also Rita v. United States, 127 S. Ct.
2456, 2462-69 (2007) (upholding presumption of reasonableness
for within-guideline sentence), we conclude that Loving has not
rebutted the presumption and that her sentence is reasonable.
We therefore affirm the sentence imposed by 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
8 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3044184/ | United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 06-3422
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Todd E. Matthews, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: March 7, 2008
Filed: March 12, 2008
___________
Before WOLLMAN, RILEY, and GRUENDER, Circuit Judges.
___________
PER CURIAM.
Todd Matthews appeals the magistrate judge’s denial of his 18 U.S.C.
§ 3582(c)(2) sentence-reduction motion. We conclude that jurisdiction is lacking.
See Specialty Mills, Inc. v. Citizens State Bank, 51 F.3d 770, 773 (8th Cir. 1995)
(court of appeals considers jurisdiction on its own motion). A section 3582(c)(2)
motion is not a civil postconviction action, but a continuation of a criminal case. See
United States v. Fair, 326 F.3d 1317, 1318 (11th Cir. 2003) (per curiam); see also
United States v. Petty, 82 F.3d 809, 810 (8th Cir. 1996) (per curiam) (time limits for
appealing in criminal cases apply to appeal from denial of § 3582(c)(2) motion). A
magistrate judge may enter judgment in a civil action with consent of the parties, see
28 U.S.C. § 636(c)(1), while a district judge may designate a magistrate judge to
prepare proposed findings of fact and recommendations for the disposition of
applications for post-trial relief made by individuals convicted of criminal offenses,
see 28 U.S.C. § 636(b)(1)(B). Accordingly, we dismiss the appeal for lack of
jurisdiction and remand to the district court for further proceedings.
______________________________
-2- | 01-03-2023 | 10-13-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1737063/ | 727 N.W.2d 374 (2006)
2007 WI App 19
EPIK CORP.
v.
ANKERSON.
No. 2006AP423.
Wisconsin Court of Appeals.
December 5, 2006.
Unpublished opinion. Reversed and remanded. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/3342058/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION ON ACQUITTEE'S MOTION TO STRIKE, ACQUITTEE'S MOTION TO DISMISS AND STATE'S PETITION FOR CONTINUED
CT Page 2931 COMMITMENT OF ACOUITTEE
I. PROCEDURAL AND FACTUAL BACKGROUND.
On September 21, 1993, the acquittee, Tyrone McClellan, was acquitted by reason of mental disease or defect of the charges of Sexual Assault in the Third Degree and Unlawful Restraint in the Second Degree. Subsequent to that acquittal, Mr. McClellan was committed to the jurisdiction of the Psychiatric Security Review Board (hereinafter, the PSRB or the Board) for a period of time not to exceed six years. On September 19, 1999, this court recommitted Mr. McClellan to the PSRB's jurisdiction for a period of time not to exceed two and one half years. Accordingly, Mr. McClellan's term under the PSRB expires on March 19, 2002.
By petition dated September 10, 2001, the New London State's Attorney filed a Petition for Order of Continued Commitment of Acquittee in accordance with C.G.S. Section 17a-593 (c). Pursuant to C.G.S., Section 17a-593 (d), the PSRB held a hearing on November 2, 2001, to assist in preparing a report to the court. On December 7, 2001, the PSRB filed its report which is part of the court's file. The PSRB found that Mr. McClellan remained mentally ill, continued to be a danger to himself and/or others, required continued inpatient treatment, and recommended that he be recommitted to the PSRB for a period not to exceed five years.
On January 18, 2002, the acquittee filed a Notice of Intention to Perform a Separate Examination. A report of said examination, dated February 25, 2002, was prepared by Dr. Peter M. Zeman and is part of the court's file.
On January 24, 2002, the acquittee filed a Motion to Strike the PSRB's December 7, 2002 report, claiming that it should not be considered as evidence in the recommitment hearing before the court. On the same date, the acquittee filed a Motion to Dismiss claiming that the entire recommitment procedure after an acquittee has reached his maximum term of confinement is unconstitutional. On February 27, 2002, the PSRB filed a Memorandum in Opposition to the Acquittee's Motion to Strike. The acquittee filed a Trial Memorandum on February 28, 2002, and filed a Response to the PSRB's Opposition to the Motion to Strike on March 5, 2002.
A hearing on the motions and petition commenced on February 28, 2002, and concluded on March 7, 2002. At that time all parties were represented and had an opportunity to be heard. The state presented two witnesses: CT Page 2932 Paul Rouleau, LSCW, a forensic monitor at Connecticut Valley Hospital, who has monitored Mr. McClellan since late 1999 and Dr. Patrick Fox, a consulting forensic psychiatrist, who has been managing Mr. McClellan's psychiatric issues since July of 1999. The acquittee presented one witness: Dr. Peter Zeman, a psychiatrist from the Institute of Living, who conducted an independent psychiatric examination of Mr. McClellan.
II. DISCUSSION
A. THE MOTION TO STRIKE
In his Motion to Strike the acquittee, Tyrone McClellan, requests the court to strike the PSRB's December 7, 2001 report and recommendation to the court and not consider the Board's recommendation to recommit Mr. McClellan. The acquittee argues that since his maximum term has expired, the court must apply the standard established in State v. Metz,230 Conn. 400 (1994). Further, acquittee argues that because his maximum term has expired, the implicit extension of Metz requires this court to use the civil commitment proceeding standard when reviewing any request for recommitment. To do otherwise would violate the acquittee's constitutional rights. Mr. McClellan claims that the PSRB report and recommendation should be disallowed as civil commitment proceedings do not provide for such a report.
In response, the PSRB argues that its report and recommendation to the court are mandated by statute, are impartial, and do not bind the court which serves as the final arbiter on any petition for recommitment. The PSRB claims that Metz does not require this court to utilize a civil commitment standard now that Mr. McClellan's maximum term has expired, and the court's failure to implement such a standard in no way violates any of Mr. McClellan's constitutional rights.
C.G.S. Section 17a-580 et seq codifies procedures for acquittees with psychiatric disabilities. Under Section 17a-582, when any person who is charged with a criminal offense is found not guilty by reason of mental disease or defect, the court orders that acquittee committed to the custody of the Commissioner of Mental Health and Addiction Services who in turn confines the acquittee in any of the state hospitals for psychiatric disabilities. C.G.S. Section 17a-582 (a). Within 45 days of the acquittee's commitment, the hospital superintendent has the acquittee examined and files a report of the examination with the court, including findings and conclusions as to whether the acquittee is a person who should be discharged. C.G.S. Section 17a-582 (b). Statutory provisions exist to allow the acquittee to request a separate examination. C.G.S. Section 17a-582 (c). If such an examination is requested, upon its completion, it is filed with the court, and a hearing is held regarding CT Page 2933 whether or not the acquittee should be discharged. C.G.S. Section 17a-582
(d). At said hearing, the court is required to make findings as to the mental condition of the acquittee, and while considering protection of society as its primary concern, make an order to either confine, conditionally release, or discharge the acquittee. C.G.S. Sections 17-582 (e)(1) and (2). At such a hearing the burden of proof for discharge is on the acquittee and that burden is by a preponderance of the evidence standard. C.G.S. Section 17a-582 (f).
The acquittee remains under the jurisdiction of the PSRB until discharged by the court pursuant to procedures set out in C.G.S. Section17a-593. The acquittee is immediately discharged at the expiration of the maximum term of commitment unless the state's attorney feels reasonable cause exists to believe that the acquittee is still a person with psychiatric disabilities and that discharge at the expiration of his maximum term of commitment would constitute a danger to himself or others. A petition for continued commitment must be filed by the state's attorney at least 135 days prior to the expiration date. C.G.S. Sections17a-582 (h) and 17a-593 (c).
This statutory scheme is the one followed in the instant case. Mr. McClellan's maximum term of commitment commenced on September 21, 1993, for a period of six years and would have expired on September 20, 1999. On April 1, 1999, the State's Attorney petitioned for an Order of Continued Commitment which was heard and granted by this court on September 19, 1999, recommitting him to the PSRB for a period of two and one half years. That commitment is due to expire on March 19, 2002. The State's Attorney filed its second petition for an Order of Continued Commitment on September 10, 2001.
In 1994, our state Supreme Court decided State v. Metz, 230 Conn. 400
(1994). In that case, Mr. Metz had previously been found not guilty by reason of insanity of Assault on a Victim over Sixty in the Second Degree, C.G.S. Section 53a-60b, a Class D felony, and Interfering with a Police Officer, C.G.S. Section 53a-167a., a Class A misdemeanor. He was committed to the PSRB for the maximum term of six years. Prior to the expiration of his maximum period of commitment, the state petitioned for an extension claiming that Mr. Metz remained mentally ill and a danger to himself and others. The trial court granted the state's petition to recommit and the acquittee appealed. It should be noted that Mr. Metz was represented by Attorney Monte P. Radler, Mr. McClellan's attorney in the instant matter. On appeal the acquittee made two arguments. First, the state could not petition the court for recommitment as the petition had not been filed at least 135 days prior to the expiration of his commitment as set out in C.G.S. Section 17a-593 (c). Our Supreme Court held that the 135 day period as specified was directory and not CT Page 2934 mandatory, and such a late filing did not automatically require dismissal of the petition.
Second, Mr. Metz claimed that C.G.S. Section 17a-593 was unconstitutional in that it required him, even after the expiration of his maximum criminal sentence, to prove that he was no longer insane in accord with the rules governing commitment of acquittees by a preponderance of the evidence. He argued that the procedure for such consideration should be in accord with the rules governing civil commitments and commitments of prisoners whose term of incarceration had ended. He claimed that it was ". . . unconstitutional for his further commitment to be ordered without the procedural safeguards afforded to those whose term of incarceration has expired or who, for other reasons, have been civilly committed." Metz, supra at 412.
The Metz court agreed that an acquittee whose maximum term had expired was entitled to greater procedural safeguards than he had been afforded. The Metz court resolved this issue in favor of Mr. Metz and future acquittees similarly situated. It specifically held ". . . To avoid such constitutional jeopardy, we construe Section 17a-593 (c) to require the state to bear the burden of proving the need for a period of continued commitment of an acquittee after the expiration of the maximum term specified by Section 17a-582 (e)(1)(A)." Metz, supra at 408. The court afforded such acquittees a further constitutional guarantee: not only must the state bear the burden of proof, but the standard of proof shifts in such cases from a preponderance of the evidence to a standard of clear and convincing evidence. The court removed the acquittee's burden of rebutting an indefinite presumption of continuing insanity and dangerousness to self or others. Thus, all post-Metz acquittees whose maximum term has expired shall only be recommitted if the state proves by clear and convincing evidence that the acquittee is currently mentally ill and dangerous to himself or others or is gravely disabled.
It is the opinion of this court, that is all that Metz requires. The acquittee in the instant case has asked this court to expand Metz and find that all civil commitment procedures should apply to this class of acquittees. The acquittee in the instant case urges the court to so find in order for this court to further find that the PSRB's report and recommendation should be stricken because civil commitment proceedings have no such report. This court declines to make such a "leap".
There is no question that the Metz court felt there were due process and equal protection concerns to the class of acquittees whose maximum term had expired. The Metz court felt that there was a latent ambiguity in the statute and addressed its concern by shifting the burden of proof from the acquittee to the state and by raising the standard of proof from CT Page 2935 a preponderance of the evidence to clear and convincing evidence. This court is not convinced that it should extend Metz beyond its stated directions and chooses not to do so.
Additionally, the acquittee has failed to convince this court that his constitutional rights will be violated if the instant proceeding is not treated as a civil commitment proceeding. To the contrary, the PSRB has effectively and convincingly argued that all of the attendant due process and equal protection rights append to this class of acquittees. There is no disagreement that ". . . commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection."Foucha v. Louisiana, 504 U.S. 71 at 79 (1992).
First, the court is not bound by the PSRB's report and recommendation. It is just that, a "report" and a "recommendation," mandated by statute. At the PSRB hearing which is held prior to the preparation of the report and recommendation, the acquittee has the opportunity to be represented, cross-examine witnesses, and present his own evidence and witnesses. In the instant case, counsel for the acquittee acknowledged that he and Mr. McClellan were present at the PSRB hearing, were allowed to question witnesses, and present witnesses which they declined to do. That report is then filed with the court and a hearing is scheduled. The acquittee has an opportunity to present an independent examination for the court's consideration. In the instant case, Mr. McClellan presented the court with such an independent examination by Dr. Zeman. At the hearing before the court, testimony is taken. The acquittee has the opportunity to and, in the instant case, did cross-examine the state's witnesses. At the hearing before the court, the acquittee has the opportunity to and, in the instant case, did present his own witness. At the hearing before the court, the acquittee has the opportunity to and, in the instant case, did argue that the state had not fulfilled its burden of proof by the clear and convincing standard.
At the conclusion of these proceedings, the court, as the final arbiter, reviews and weighs all of the evidence to either grant or deny the recommitment petition. There is nothing which this court finds in this fair and balanced procedure which diminishes the acquittee's due process or equal protection rights. While this procedure may not precisely mirror that of a civil proceeding, equal protection "does not require absolute equality or precisely equal advantages." Ross v. Moffitt,417 U.S. 600, 612 (1974).
For all of the reasons stated above, the acquittee's Motion to Strike the PSRB's report and recommendation is denied.
B. THE MOTION TO DISMISS CT Page 2936
The same arguments contained in the acquittee's Motion to Strike are reargued in acquittee's Motion to Dismiss. Mr. McClellan contends that this court should dismiss the state's Petition for Recommitment because his maximum term has ended. The argument repeats that subjecting Mr. McClellan to a recommitment proceeding under the criminal standard and not the civil standard is unconstitutional. He claims first, that a person who has been adjudicated not guilty by reason of insanity (NGRI) and has reached his maximum term of commitment currently does not receive the same or substantially the same procedural due process protections as any other individual subject to involuntary civil commitment. Second, he claims that an acquittee recommitted at the expiration of his maximum term of commitment does not receive the same or substantially similar rights and remedies as others involuntarily committed. The acquittee urges this court to find that for this class of acquittees for all purposes on Petitions for Recommitment the civil standard must apply. In sum, the acquittee argues that there is no justification for distinguishing between insanity acquittees and prisoners, in terms of post-recommitment legal rights, remedies and procedures.
In order for this court to give credence to the acquittee's argument, this court must extend the decision of our Supreme Court in State v.Metz, supra. Again, this court declines to do so. In challenging the constitutionality of a statute, the challenger "must sustain the heavy burden of proving its unconstitutionality beyond a reasonable doubt."State v. Breton, 212 Conn. 258, 269 (1989). The acquittee has not met this burden. The acquittee is not entitled to the same panoply of rights and process provided in the civil commitment process. As previously articulated, this is not what the equal protection clause envisioned. SeeRoss v. Moffitt, supra at 612.
For all of the reasons articulated in the court's Memorandum of Decision on the Motion to Strike, this court does not feel that the acquittee has been deprived of his constitutional rights. Accordingly, the acquittee's Motion to Dismiss is denied.
C. PETITION FOR CONTINUED COMMITMENT OF THE ACQUITTEE
As previously discussed, when an acquittee such as Mr. McClellan has reached his maximum term of commitment, the state must prove to the court by clear and convincing evidence "that the acquittee is currently mentally ill and dangerous to himself or herself or others or gravely disabled" in order for a court to recommit the acquittee. Metz, supra at 425. The court follows the statutory procedure set out in C.G.S. Section 17a-593 (c). Prior to said hearing on the state's Motion for Recommitment, the court reviewed the court file and all motions and CT Page 2937 memoranda of law submitted by counsel.
None of the parties disagree as to Mr. McClellan's diagnosis. Psychiatrically, he has a chronic schizoaffective disorder and is bipolar with elements of schizophrenia and changes in his emotional state. These disorders may manifest themselves in irritability, hypersexual behavior, hallucinations, delusions, and paranoia. These conditions are currently being treated with three medications, administered orally on a daily basis. Physically, Mr. McClellan suffers from cardiac myopathy, hypertension, anemia, asthma, and morbid obesity. These conditions are being monitored by twelve prescribed oral medications and diet. Mr. McClellan's psychiatric condition has varied in its stability and there have been periods during his commitment that his behavior has regressed necessitating medication adjustments. Similarly, there have been problems with his medical health during his commitment. His diabetes and pulmonary problems which are not aided by his obesity have taken their toll on his physical health. Currently, his overall status is described as frail/fragile but stable.
At the hearing this court heard testimony from Paul Rouleau, a forensic monitor employed at Connecticut Valley Hospital for the past 16 years and the individual who has monitored Mr. McClellan since 1999. At the hearing before this court, Mr. Rouleau testified on behalf of the board. He informed the court that Mr. McClellan is presently housed in Dutcher Hall at the Connecticut Valley Hospital campus in a unit which provides him with a relatively high level of privileges, including limited pass time and approved temporary leave from the grounds to attend outpatient treatment in the southeastern Connecticut community several times a week.
He testified of his concern for Mr. McClellan's inconsistency with treatment and his risk of unreliability citing three incidents during the summer of 2001 in which the acquittee lied about an incident at Reliance House (outpatient treatment center), lied about family members present at a home visit, and verbally threatened an elderly patient on the hospital unit. Mr. Rouleau felt that Mr. McClellan was ambivalent about leaving the hospital setting where he has resided for the past ten years and when presented with residential options, was uncooperative in selecting a community placement effectively "sabotaging" his ability to transition from the hospital. He also felt that Mr. McClellan had not fared well in the community prior to his original commitment and any transition would require a placement with the proper resources providing Mr. McClellan with supervision for medication and healthcare needs compliance and a host of support services.
At the present time Mr. Rouleau did not feel that the acquittee could CT Page 2938 be compliant with his own needs and that his past history of noncompliance would continue to make Mr. McClellan a danger to himself and others. He told Mr. Rouleau that if he could not care for himself, he would go to a shelter. The witness felt this would certainly be a poor setting for Mr. McClellan's need for both medication compliance and healthcare compliance. Without such compliance, Mr. McClellan would become a danger to himself and others.
Next, the court heard testimony from Dr. Patrick Fox, a consulting forensic psychiatrist from Yale who has been monitoring Mr. McClellan from a psychiatric standpoint since July of 1999. Dr. Fox stressed that if the acquittee did not take his prescribed psychiatric medications, he would decompensate in a short time. Such decompensation could include the return of delusions, thought process hallucinating, hypersexual behaviors, mood instability and depression.
Dr Fox's testimony traced the efforts to transition Mr. McClellan to the community since 1996. He confirmed that these transition plans have been interrupted in the past due to Mr. McClellan's psychiatric decompensation and his physical health. The most recent proposal is to place him at Martin House on the grounds of the Uncas on the Thames campus. He is currently on the waiting list with bed space available within the next four to six months.
Dr. Fox spoke with Mr. McClellan about his plans if this court denied the state's Motion for Recommitment and he were discharged by the PSRB on March 19, 2002, at the expiration of his recommitment term. Mr. McClellan told Dr. Fox that he would go to his mother's and tell her he had been released, he would then go to a shelter, and if he had trouble getting his medication, he would see if his brother could help him with a job, his medical appointments, and procuring his medicine although he had no psychiatrist or medical doctor selected. It should be noted that the acquittee currently takes fifteen prescribed medications daily: three for his psychiatric condition and twelve for his medical condition. Dr. Fox stated that all these prescriptions require monitoring and visits with a psychiatrist and medical doctor.
Dr. Fox felt that absent supervision and continued medication, there was a high likelihood that Mr. McClellan would decompensate in a relatively short period of time which would make him a danger to himself and/or others. To avoid such a decompensation and for Mr. McClellan to be successful in the community, he would need staff monitoring 24 hours a day to insure medication compliance and he would need psychiatric and medical providers in place for ongoing treatment. Mr. McClellan would also need to have his outpatient day treatment increased gradually so that he could successfully transition into a residential placement such CT Page 2939 as Martin House. Dr. Fox felt that absent any malingering by the acquittee, this plan could be accomplished within twelve to fourteen weeks. Dr. Fox conceded that since Mr. s commitment, he is unaware of any violent or inappropriate sexual behavior on the acquittee's part.
Next, Dr. Peter Zeman, a psychiatrist from the Institute of Living, testified and submitted a report to the court, dated February 25, 2002. Dr. Zeman conducted an independent psychiatric examination of Mr. McClellan at the acquittee's request. In preparing this report, Dr. Fox reviewed Mr. McClellan's very extensive file, including PSRB memoranda of decisions, six month reports, transcripts of hearings before the PSRB, a sexual offender evaluation prepared by Dr. Gibeau from August of 1999, an evaluation by Dr. Lowstein from March of 1966, and the original NGRI evaluation from August of 1993. Prior to preparing his report Dr. Zeman met with the acquittee on January 24, 2002, for one half hour. Dr. Zeman had previously met with Mr. McClellan on April 6, 2000, for one hour, on June 2, 2000, for one half hour, and on November 30, 2000, for three quarters of an hour. He also met with the acquittee's treatment team for one half hour on January 30, 2002.
Dr. Zeman agrees with Dr. Fox that Mr. McClellan needs psychiatric medications to maintain his current nonpsychotic mental status. He opined that Mr. McClellan understands that he has a mental illness and needs to take his medications as prescribed. He admitted that acquittee's stability will only be maintained if Mr. McClellan follows through with what he says he needs to do with medication compliance. Dr. Zeman did not believe that the acquittee was presently a danger to himself or to others based on his behavior while in PSRB custody. Dr. Zeman testified that Mr. McClellan's behavior has been supervised in a structured hospital setting with direct monitoring of his medication intake. Dr. Zeman concurred with the other medical experts' diagnosis: Mr. McClellan has a serious psychiatric disorder which is chronic and lifelong. He will continue to have this mental illness and medications will be needed to control it.
Dr. Zeman further agreed that if the acquittee does not take his medications, he likely would decompensate and if he decompensated, he could have boundary issues, become verbally abusive, and generally intrusive to others. Such a decompensation in Dr. Zeman' s opinion could manifest itself quickly, in a matter of days to months. He acknowledged that Mr. McClellan's condition has not radically changed since 1992; he is functioning due to his medications and his level of supervision. By reviewing acquittee's records, Dr. Zeman learned that about one month prior to the arrest for which Mr. McClellan was found NGRI, he had stopped taking his medications, he had not been sleeping, and he had gained significant weight. Because Dr. Zeman found Mr. McClellan's mental CT Page 2940 illness in remission, he testified that the acquittee showed no signs of an active mental illness which rendered him either of harm to himself or others or gravely disabled.
Prior to Dr. Zeman's appearance, all witnesses testified that if the court denied the Motion for Recommitment, Mr. McClellan would be discharged by the PSRB on March 19, 2002, and any residential placement for him would be voluntary on his part, as would his medication compliance. In response to this court's inquiry, Dr. Zeman testified that the acquittee needed case management for a period of time, supervision, regular psychiatric assessment, regular therapy, and to be taking his medications as prescribed. Dr. Zeman agreed that if the court denies this motion and Mr. McClellan was released, all of what Dr. Zeman testified Mr. McClellan needed would have to be done by Mr. McClellan on a voluntary basis. The court then asked Dr. Zeman whether or not Mr. McClellan would be able to independently take care of his needs . . Dr. Zeman answered: "I think it would be very difficult for him to do that, and I have some serious concerns that he would not be able to do that."
In sum, all the experts agree that Mr. McClellan has a chronic mental illness which is currently asymptomatic because Mr. McClellan is taking his psychiatric medications in a supervised setting. The acquittee's own expert agrees that the only way Mr. McClellan will stay asymptomatic is if he continues to take his medications and continues with therapy and regular psychiatric monitoring. Without medication, Mr. McClellan's mental status will decompensate and the symptoms of his mental illness will manifest themselves over a short period of time. When these symptoms reappear, Mr. McClellan will be mentally ill and will pose a danger to himself and/or others. Mr. McClellan' s own expert holds out little hope that Mr. McClellan will take his prescribed medications on a voluntary basis.
This court has reviewed all of the briefs filed in this matter, carefully reviewed the court's extensive file which includes many of the prior proceedings before the PSRB, read medical and psychiatric evaluations of Mr. McClellan and the exhibits entered into evidence during this hearing, and reviewed all of the six month reports as provided by stipulation of the parties. The acquittee's current mental status, though stable, is fragile. That fragility is directly and totally related to whether or not Mr. McClellan takes his medications. No expert before the court is convinced that he can do so on a voluntary basis. In not doing so, the acquittee's mental illness resurfaces and he becomes a danger to himself and others.
Accordingly, this court finds that the state has proven by clear and convincing evidence that Mr. McClellan, the acquittee, is mentally ill CT Page 2941 and therefore, a danger to himself and/or others. The state's Motion for Recommitment is granted. This court recommits Mr. McClellan to the custody of the PSRB for a period not to exceed eighteen months. This limited commitment is based on Dr. Fox's testimony that there is no reason, provided Mr. McClellan cooperates with the PSRB and a bed is available, why the acquittee could not be transitioned into the Martin House within a period of several months. This court had envisioned such a transition occurring when it granted the state's first Motion for Recommitment in 1999 and is dismayed that such action has not taken place to date. The court urges such a transition to take place during this short period of recommitment.
III. CONCLUSION
For all of the reasons set out in the court's analysis in Section II of the Memorandum of Decision, the acquittee's Motion to Strike and Motion to Dismiss are denied. The state's Motion for Recommitment is granted for a period not to exceed eighteen months.
Handy, J. | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/3342061/ | [EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OF DECISION RE DEFENDANT'S MOTION TO DISMISS (#137)
Presently before the court is the defendant's motion to dismiss, which was filed on May 28, 1999. The plaintiff, Annie Carter (plaintiff), filed a six count complaint against several parties, including James F. Sullivan, commissioner of transportation for the state of Connecticut (defendant), for injuries allegedly suffered when she fell on a defective sidewalk in the city of Hartford.
The relevant facts are as follows. On or about June 26, 1995, the plaintiff was injured "when her foot struck a raised portion of the [sidewalk adjacent to 128 Collins Street in Hartford, Connecticut,] causing her to fall violently to the ground." (Complaint, Count 5, ¶¶ 5 6.) The plaintiff alleges that the defendant has a "duty to keep and maintain the public sidewalks and streets within its territorial limits in a reasonably safe condition" and that the said sidewalk is within the defendant's territorial limits. (Complaint, Count 5, ¶¶ 2 3.) The plaintiff further alleges, inter alia, that the defendant failed to maintain the said sidewalk in a reasonably safe manner and that the defendant's breach of his statutory duty is the sole proximate cause of her injuries. (Complaint, Count 5, ¶ 8.) Pursuant to General Statutes § 13a-144, the plaintiff provided a notice of claim to the defendant, a copy of which is attached to the complaint. The defendant now moves to dismiss count five of the plaintiff's complaint on sovereign immunity grounds.
DISCUSSION
"Any defendant, wishing to contest the court's jurisdiction, may do so even after having entered a general appearance, but must do so by filing a motion to dismiss within thirty days of the filing of an appearance." Practice Book § 10-30; Pitchell v.Hartford, 247 Conn. 422, 432, 722 A.2d 797 (1999). "[A] claim that this court lacks subject matter jurisdiction [may be raised] at any time." (Internal quotation marks omitted.) Dowling v.Slotnik, 244 Conn. 781, 787, 712 A.2d 396, cert. denied, ___ U.S. ___, 119 S. Ct. 542, 142 L. Ed. 2d 451 (1998). "[O]nce the question of lack of jurisdiction of a court is raised, [it] must be disposed of no matter in what form it is presented... and the court must fully resolve it before proceeding further with the case." (Internal quotation marks omitted.) Figueroa v. C S BallBearing, 237 Conn. 1, 4, 675 A.2d 845 (1996). "[T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Federal Deposit Ins. Corp. v. Peabody,CT Page 14349N.E., Inc., 239 Conn. 93, 99, 680 A.2d 1321 (1996); Novicki v. NewHaven, 47 Conn. App. 734, 739, 709 A.2d 2 (1998).
The defendant moves to dismiss count five of the plaintiff's complaint on the ground that the court lacks subject matter jurisdiction due to sovereign immunity. In his memorandum of law in support of the motion, the defendant argues, inter alia, that his liability pursuant to General Statutes § 13a-144 is limited and that it only extends to those sidewalks he has a statutory duty to maintain. The defendant further argues that he has no statutory duty to maintain the sidewalk on which the plaintiff suffered her injuries.
In accordance with Practice Book § 10-31, the defendant submitted the affidavit of Victor LaBarre (LaBarre), a transportation maintenance director for the department of transportation, as to facts not apparent on the record. LaBarre attests that "[t]he sidewalk on or near 128 Collins Street, Hartford, Connecticut is not part of the state highway system." (LaBarre Affidavit, 12/30/98, ¶ 6.) LaBarre further attests that he is familiar with the plaintiff's notice of claim and that the department of transportation does not, and did not on June 26, 1995, have a duty to maintain the said sidewalk or the area of the said sidewalk identified in the plaintiff's notice of claim. (LaBarre Affidavit, 12/30/98, ¶¶ 7-9.)
The plaintiff did not file an objection to the defendant's motion to dismiss, nor has the defendant requested oral argument on the motion. For the reasons set forth below, the defendant's motion to dismiss must be granted.
The state's duty of care with respect to sidewalks is well settled. The general rule is that the commissioner of transportation has a duty to maintain only those sidewalks for which a statute confers such a duty upon the commissioner. SeeAmore v. Frankel, 228 Conn. 358, 365, 636 A.2d 786 (1994); Tuckelv. Argraves, 148 Conn. 355, 358-360, 170 A.2d 895 (1961); Hornyakv. Fairfield, 135 Conn. 619, 621-22, 67 A.2d 562 (1949); Moleskev. MacDonald, 109 Conn. 336, 340-41, 146 A.2d 820 (1929); Levinev. Devore Baking Company, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. 350194 (June 19, 1998,Skolnick, J.) (22 Conn. L. Rptr. 332); Cartwright v. Frankel, Superior Court, judicial district of Windham at Windham, Docket No. 048749 (March 19, 1996, Sferrazza, J.) (16 Conn. L. Rptr. 322);Gould v. Hartford, 44 Conn. Super. Ct. 389, 691 A.2d 35 (1995). CT Page 14350 Thus, General Statutes § 13a-144 waives the state's sovereign immunity for persons "injured in person or property through neglect or default of the state or any of its employees by means of any defective highway, bridge or sidewalk which it is the duty of the Commissioner of Transportation to keep in repair...." General Statutes § 13a-144.
The legislature has designated a limited number of sidewalks that the commissioner of transportation must maintain. Pursuant to General Statutes § 13a-91, the commissioner is responsible for maintaining "all sidewalks on bridges or approaches to bridges maintained by the commissioner...." General Statutes § 13a-91(a). The commissioner also has a duty to maintain the "sidewalks on the bridges across the Connecticut River at Thompsonville and Warehouse Point...." General Statutes § 13a-92. Additionally, "[t]he Commissioner of Transportation shall maintain any sidewalk, including the removal of snow and ice, abutting property acquired for highway purposes, from the date of acquisition until the section of highway for which the property was acquired is completed." General Statutes § 13a-258.
In the present case, the plaintiff has not alleged that the sidewalk in question comes within any of these categories. The plaintiff merely alleges that the commissioner has a "duty to keep and maintain the public sidewalks and streets within its territorial limits in a reasonably safe condition." (Complaint, 6/12/97, Count 5, ¶ 2.) The affidavit of Victor LaBarre rebuts the plaintiff's allegation that the sidewalk on which the plaintiff was injured is within the commissioner's territorial limits. Thus, under the facts of this case, the defendant has not waived sovereign immunity. Gould v. Hartford, supra,44 Conn. Super. Ct. 389; MacArthur v. Town of Suffield, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 522353 (July 29, 1994, Sheldon, J.); Mascaro v. Lathrop, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. 530007 (June 13, 1994, Hennessey, J.) (9 C.S.C.R. 711). For these reasons, the court hereby grants the defendant's motion to dismiss.
WILLIAM L. WOLLENBERG SUPERIOR COURT JUDGE | 01-03-2023 | 07-05-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/2860131/ | Velasquez v. State
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00477-CR
Arthur Velasquez, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT
NO. 44,866, HONORABLE MARTHA J. TRUDO, JUDGE PRESIDING
PER CURIAM
A jury convicted appellant of attempted capital murder, aggravated robbery, and
sexual assault. Tex. Pen. Code Ann. §§ 15.01, 19.03, 22.011(a), & 29.03 (West 1994). The
trial court assessed punishment for each conviction at life imprisonment. In his only point of
error, appellant attacks the legal sufficiency of the evidence to establish his identity as perpetrator
of the offenses. We will affirm the judgment of the trial court.
The offenses occurred in the early morning of October 27, 1994, at a convenience
store in Temple called the Exxon E-Z Way. On that date the complainant, Patricia Lynn Fondren,
was working the night shift alone. About 2:30 in the morning, she saw a man walking quickly
toward the store with his head down and his hands appearing to hold something that she could not
see. Fondren described the man as Hispanic, 5'4" or 5'5" tall, weighing 150 to 160 pounds, and
having shoulder-length black hair. He was wearing a black and white checkered outer shirt with
a white T-shirt underneath. The man entered the store and ran toward Fondren, yelling at her to
give him all the money. As he walked behind the counter to the register where Fondren stood,
the man held up a knife. He was standing, when he displayed it, "real close" to Fondren. The
man removed sixty-seven dollars from the cash register, put it in a paper bag, and demanded that
Fondren open the safe beneath the counter. When Fondren could not, the man became angry and
grabbed her sweater, ripping it. He told her to go into the back office.
Once in the office, the man ordered Fondren to sit in a chair and disrobe.
Photographs of the office admitted in evidence show it to be a small, cluttered room with two
chairs placed several feet apart from each other, a desk, safe, and store supplies. The man stood
in front of Fondren and held the knife even with her face, yelling that he would kill her. Fondren
wrested the knife from one of his hands and ran from the office, but the man caught her by her
hair, hit her in the face, and knocked her down. Fondren felt two thumps in her back, which
were shown to be puncture wounds, and the assailant dragged her back to the office by her hair.
The man told Fondren to sit in one of the chairs, and he again held the knife in her
face. He ordered Fondren to spread her legs, then held the knife near her vagina and penetrated
her with his fingers for ten minutes. During this time, the assailant kissed her, bit her left breast,
and bit the side of her neck just below the ear. Fondren stated that, while he was assaulting her
in this manner, she was very close to his face. Although she could not look at him the entire
time, she observed that the assailant had yellow teeth and a dark complexion. When Fondren told
the assailant that the man who worked with her would return to the store shortly, the man ceased
assaulting her and put the bag of money in his pants.
As the assailant lifted his shirt to place the money beneath, Fondren noticed part
of a tattoo on the left side of his abdomen. She described the part she saw as being similar to a
face, but shaped like a keyhole, and having the top shaded blue.
The man next pulled the phone from the wall and wrapped the cord around
Fondren's hand and waist. Once he left the store, Fondren freed herself and called the police.
She estimated that the assailant stayed in the store thirty minutes in all. When the officers arrived,
Fondren described her assailant to them just as she did in court.
Fondren identified appellant in court as the man who stole the money and assaulted
her. During these acts, appellant was at most two feet from her. She testified that she did not
think she would forget the attacker's face and that she was one hundred percent positive that
appellant committed the acts she had described.
Fondren also identified in court the shirt that the attacker wore. She particularly
remembered a hole in the shirt through which she had noticed his white T-shirt. Although
Fondren had earlier described the assailant's shirt as black and white, she agreed that the
predominant color of the shirt she identified in court was blue. Temple police officer Jeffery
Clark identified the same shirt as the one he took from appellant on the night of October 27, 1994,
shortly after appellant was arrested for aggravated robbery.
Appellant displayed for the jury two tattooed faces on each side of his abdomen.
Fondren recognized the top part of one of the tattoos, which was colored blue. Because of the
way the assailant had pulled up his shirt to hide the money, she had seen only one side of his
abdomen. She did not see any other tattoo on the attacker.
Fondren also testified that the police showed her a photographic line-up of six
Hispanic males. She needed only two seconds to choose appellant's picture from the six.
Fondren stated that she never identified anyone except appellant as the perpetrator.
Temple police officer Sean Childress testified that on October 27, 1994, he was
patrolling an apartment complex two miles from the E-Z Way Store. At 12:20 a.m., he
encountered appellant at the complex and asked him for identification. Appellant produced a
social security card in the name of Arthur Velasquez. Childress noticed tattoos on appellant's
neck and right arm and observed that appellant's teeth were dirty, as if they had not been brushed
for some time.
Officer Childress recalled that appellant was wearing a blue, white, and gray
checkered flannel shirt with a T-shirt underneath. When shown the shirt that Fondren had
previously identified as worn by her assailant, Officer Childress stated that it was the same shirt
appellant was wearing on October 27. Officer Childress did not see appellant return to the
apartments before he left at 2:00 a.m.
Laura Jaramillo, who described herself as appellant's girlfriend, stated that
appellant came to her house at 1:30 in the morning on October 27, 1994. Jaramillo accompanied
appellant to another apartment, arriving at 1:45 a.m. She testified that appellant's friend Monica
came to that apartment later to visit, but that appellant remained inside from 1:45 to 7:00 a.m.
Jaramillo identified the plaid shirt admitted in evidence as the one appellant was wearing when
he was arrested the night of October 27.
Monica Pippins, a friend of appellant, stated that she returned from a fishing trip
early in the morning of October 27, 1994. Between 12:30 and 1:30 a.m., she went to the
apartment where appellant was staying to ask if he wanted to play dominoes. Pippins said that
she did not see appellant, but spoke to him through the apartment door; behind the door, she could
hear appellant and Jaramillo talking. Pippins described the tattoos appellant bore on his face,
neck, arms, and stomach. She denied that any tattoo on appellant resembled a keyhole. Pippins
recognized the shirt the State had offered in evidence as belonging to appellant and stated that
appellant was wearing this shirt the evening before the events in question occurred.
In determining the legal sufficiency of the evidence to support a criminal
conviction, the question is whether, after viewing all the evidence in the light most favorable to
the verdict, any rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Griffin v. State, 614
S.W.2d 155, 159 (Tex. Crim. App. 1981). Our review of all the evidence in this case reveals an
ample basis on which a rational jury could find that the perpetrator of the offenses was appellant.
Fondren testified that the robbery and assault lasted thirty minutes, during which she observed
appellant at close proximity under normal indoor lighting. She identified appellant both in and
out of court and recalled numerous details of appellant's appearance and dress. That other
evidence differed from Fondren's testimony does not affect the sufficiency of the evidence that,
if believed, would sustain the conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim.
App. 1986). We therefore overrule point one.
We affirm the judgment of conviction.
Before Justices Powers, Jones and B. A. Smith
Affirmed
Filed: June 26, 1996
Do Not Publish
ing these acts, appellant was at most two feet from her. She testified that she did not
think she would forget the attacker's face and that she was one hundred percent positive that
appellant committed the acts she had described.
Fondren also identified in court the shirt that the attacker wore. She particularly
remembered a hole in the shirt through which she had noticed his white T-shirt. Although
Fondren had earlier described the assailant's shirt as black and white, she agreed that the
predominant color of the shirt she identified in court was blue. Temple police officer Jeffery
Clark identified the same shirt as the one he took from appellant on the night of October 27, 1994,
shortly after appellant was arrested for aggravated robbery.
Appellant displayed for the jury two tattooed faces on each side of his abdomen.
Fondren recognized the top part of one of the tattoos, which was colored blue. Because of the
way the assailant had pulled up his shirt to hide the money, she had seen only one side of his
abdomen. She did not see any other tattoo on the attacker.
Fondren also testified that the police showed her a photographic line-up of six
Hispanic males. She needed only two seconds to choose appellant's picture from the six.
Fondren stated that she never identified anyone except appellant as the perpetrator.
Temple police officer Sean Childress testified that on October 27, 1994, he was
patrolling an apartment complex two miles from the E-Z Way Store. At 12:20 a.m., he
encountered appellant at the complex and asked him for identification. Appellant produced a
social security card in the name of Arthur Velasquez. Childress noticed tattoos on appellant's
neck and right arm and observed that appellant's teeth were dirty, as if they had not been brushed
for some time.
Officer Childress recalled that appellant was wearing a blue, white, and gray
checkered flannel shirt with a T-shirt underneath. When shown the shirt that Fondren had
previously identified as worn by her assailant, Officer Childress stated that it was the same shirt
appellant was wearing on October 27. Officer Childress did not see appellant return to the
apartments before he left at 2:00 a.m.
Laura Jaramillo, who described herself as appellant's girlfriend, stated that
appellant came to her house at 1:30 in the morning on October 27, 1994. Jaramillo accompanied
appellant to another apartment, arriving at 1:45 a.m. She testified that appellant's friend Monica
came to that apartment later to visit, but that appellant remained inside from 1:45 to 7:00 a.m.
Jaramillo identified the plaid shirt admitted in evidence as the one appellant was wearing when
he was arrested the night of October 27.
Monica Pippins, a friend of appellant, stated that she returned from a fishing trip
early in the morning of October 27, 1994. Between 12:30 and 1:30 a.m., she went to the
apartment where appellant was staying to ask if he wanted to play dominoes. Pippins said that
she did not see appellant, but spoke to him through the apartment door; behind the door, she could
hear appellant and Jaramillo talking. Pippins described the tattoos appellant bore on his face,
neck, arms, and stomach. She denied that any tattoo on appellant resembled a keyhole. Pippins
recognized the shirt the State had offered in evidence as belonging to appellant and stated that
appellant was wearing this shirt the evening before the events in question occurred.
In determining the legal sufficiency of the evidence to support a criminal
conviction, the question is whether, after viewing all the evidence in the light most favorable to
the verdict, any rational trier of fact could have found the essential elements of the offense beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Griffin v. State, 614
S.W.2d 155, 159 (Tex. Crim. App. 1981). Our review of all the evidence in this case reveals an
ample basis on which a rational jury could find that the perpetrator of the offenses was appellant.
Fondren testified that the robbery and assault lasted thirty minutes, during which she observed
appellant at close proximity under normal indoor lighting. She identified appellant both in and
out of court and recalled numerous details of appellant's appearance and dress. That other
evidence differed from Fondren's testimony does not affect the sufficiency of the evidence that,
if believed, would sustain the conviction. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim.
App. 1986). We therefore overrule point o | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/585790/ | 967 F.2d 754
UNITED STATES of America, Appellee,v.George REMINI, Defendant-Appellant.
No. 1502, Docket 92-1033.
United States Court of Appeals,Second Circuit.
Argued May 11, 1992.Decided June 18, 1992.
John L. Pollok, New York City (Hoffman & Pollok, Susan C. Wolfe, Michael Rosen, of counsel), for defendant-appellant.
Laura A. Ward, Brooklyn, N.Y., Asst. U.S. Atty. E.D. New York (Andrew J. Maloney, U.S. Atty. E.D. New York, Peter A. Norling, Emily Berger, Asst. U.S. Attys., of counsel), for appellee.
Before: FEINBERG and CARDAMONE, Circuit Judges, LARIMER, District Judge.*
FEINBERG, Circuit Judge:
1
George Remini appeals from a judgment of conviction entered in January 1992 in the United States District Court for the Eastern District of New York, John R. Bartels, J., after a jury found Remini guilty of criminal contempt in violation of 18 U.S.C. § 401(3). Judge Bartels sentenced Remini to 16 months imprisonment, three years supervised release, a fine of $30,000 and a special assessment of $50. Remini challenges his conviction on the grounds that: the district court applied the wrong definition of willfulness in charging the jury and in admitting and excluding evidence; the court expressed open hostility to defense counsel during summation and thereby deprived the defense of a fair trial and of effective assistance of counsel; at the time he was ordered to testify, Remini was inadequately immunized for his testimony; at sentencing, the court erroneously applied the guideline base offense level for Obstruction of Justice instead of for Failure to Appear by a Material Witness; and at sentencing, the court erroneously denied Remini a two-level reduction for acceptance of responsibility. Remini is presently on $1 million bail pending appeal.
2
For the reasons given below, we affirm.
Background
The Gambino Trial
3
Remini's indictment and conviction resulted from his refusal to testify in November 1989 at the trial of United States v. Thomas Gambino, 89 Cr. 431, in the Eastern District of New York, Jack B. Weinstein, J. The indictment in that case charged Gambino with giving false, evasive and misleading testimony to a grand jury, in violation of 18 U.S.C. § 1503. During the trial, Judge Weinstein ruled that literally true but evasive and misleading testimony would support prosecution of Gambino for obstruction of justice. When the government called Remini to testify, Remini moved to quash the trial subpoena, claiming that the government intended to ask him questions derived from illegal electronic surveillance. He also claimed that his immunity order was inadequate under the Fifth Amendment because the government had maintained the position in the Gambino trial that literally true but misleading answers given under an immunity order would be subject to prosecution. Judge Weinstein denied Remini's motion to quash.
4
After the court had immunized Remini pursuant to 18 U.S.C. § 6002 and directed him to answer questions, he refused to testify, asserting that he wished to litigate his opposition to the subpoena on appeal. The court advised him that if he persisted in refusing to testify without just cause, he would be subject to immediate incarceration for civil contempt and to a prosecution for criminal contempt. Remini persisted and the court ordered him confined for civil contempt. He was released from custody after the government rested its case in the Gambino trial, which ultimately resulted in an acquittal.
Pre-trial Proceedings
5
In January 1991, a grand jury indictment was filed, charging Remini with criminal contempt for his failure to testify at the Gambino trial. Remini moved to dismiss the indictment on the ground that exculpatory evidence--that he had acted on advice of counsel--had been withheld from the grand jury. He also repeated his claims that he received inadequate immunity at the Gambino trial and that illegal electronic surveillance had led to his subpoena. In an opinion filed in May 1991, Judge Bartels denied the motion in its entirety, finding that exculpatory evidence had not been withheld from the grand jury since advice of counsel is not a defense to contempt, and rejecting the claims of inadequate immunity and of illegal surveillance as well.
The Remini Trial
6
Consistent with his earlier ruling, Judge Bartels precluded Remini at trial from either arguing or presenting evidence of good faith reliance on advice of counsel. The court also granted the government's application to redact the portions of the transcript of the Gambino trial in which Remini stated that he relied on advice of counsel, and ruled that Remini could not comment upon the redacted portions or "[t]here is no point in redacting."
7
After the government had presented its case, the court refused to permit Remini to present evidence that would show that Remini believed in good faith that he was complying with the contempt statute and had intended to demonstrate that on appeal. The court concluded that these exhibits were irrelevant because whether Remini intended to violate the statute "is immaterial, if he intended knowingly and consciously to violate [J]udge Weinstein's order." The defense subsequently rested without presenting evidence and summations followed. The court instructed the jury that "willfully" means that the defendant understood the court order and consciously refused to obey it, adding that it would not be a defense if the defendant acted on the advice of counsel. The court then denied defense counsel's motion for a mistrial based on the manner in which the court had addressed him during his summation. In June 1991, the jury found Remini guilty as charged.
Sentencing
8
Remini's sentencing hearing was held in January 1992. Section 2J1.1 of the Guidelines, which applies to violations of 18 U.S.C. § 401, states that the court should apply § 2X5.1. Section 2X5.1 states that the court is to apply "the most analogous offense guideline." The Probation Department concluded in its Presentence Report that the most analogous Guideline was U.S.S.G. § 2J1.2, for Obstruction of Justice, and the government agreed with the Presentence Report. Remini, on the other hand, contended that the appropriate Guideline was § 2J1.5, for Failure to Appear by a Material Witness.
9
The court agreed with the Probation Department and the government and applied section 2J1.2, the Guideline for Obstruction of Justice. The court had earlier determined that "[t]here was an intent to obstruct justice," basing this determination on a taped conversation that the government had presented to the court in which John Gotti told a third party that he had instructed his lawyers to "[g]et my cell ready, get Joe Butch's cell ready; and get Fat Georgie's [Remini's] cell ready. And nobody is taking the stand. Tell them to go fight! Don't worry about it." Judge Bartels found specifically that "the electronic intercepted conversations between John Gotti and Mr. Remini indicates a lack of good faith on the part of Mr. Remini." The judge did reject, however, the Probation Department and government recommendation of a three-level increase under U.S.S.G. § 2J1.2(b)(2) for substantial interference with the administration of justice as well as their recommendation of an upward departure under U.S.S.G. § 5K2.9. Judge Bartels also denied Remini a two-level reduction in his sentence for acceptance of responsibility. Remini's base offense level was therefore 12, which produced a guideline imprisonment range of 10 to 16 months. As noted above, the court sentenced Remini to 16 months imprisonment, three years supervised release, a fine of $30,000 and a special assessment of $50.Discussion
The Definition of Willfulness
10
The trial court ruled that the intent element of criminal contempt is satisfied by proof of willful disobedience of a court order and that good faith reliance on advice of counsel does not constitute a defense to such willful disobedience. As discussed above, the court accordingly redacted as irrelevant the arguments of Remini's counsel at the Gambino trial and excluded other evidence showing why Remini refused to testify at that trial. At the end of Remini's trial, the court charged the jury that
11
[t]he fourth element of the offense of contempt is that the defendant acted knowingly and willfully.... In order to be guilty of criminal contempt, therefore, it is essential that the defendant acted with a specific intent and that he willfully disobeyed or disregarded the order of the court. * * *
12
It is not a defense to the offense of contempt that the defendant acted on the advice of an attorney....
13
Good faith is only a defense ... where the defendant has made a reasonable effort to comply with a court order but has failed because of the indefiniteness of the order or some other inability to do so. It is not a defense where the defendant has refused to comply with the order he is charged with violating.
14
Appellant claims that good faith reliance on advice of counsel is a defense to criminal contempt and that willfulness is negated by a good faith refusal to testify. He therefore argues that the district court's charge on willfulness was erroneous. Remini cites two circuit court cases in support of the proposition that "[w]illfullness, for the purpose of criminal contempt, does not exist where there is a '[g]ood faith pursuit of a plausible though mistaken alternative.' " United States v. Greyhound Corp., 508 F.2d 529, 532 (7th Cir.1974) (citation omitted); Waste Conversion, Inc. v. Rollins Environmental Services (NJ), Inc., 893 F.2d 605, 609 (3d Cir.1990) (in banc) (citation omitted). Appellant also cites the Supreme Court's recent decision in Cheek v. United States, --- U.S. ----, 111 S.Ct. 604, 610-11, 112 L.Ed.2d 617 (1991), which held that a good faith misunderstanding of the law is a defense in a tax prosecution, and argues that Cheek compels the definition of willfulness that he has set forth.
15
We do not find these arguments persuasive. We begin by noting that it is the established law of this circuit that "advice of counsel is not a defense to the act of contempt, although it may be considered in mitigation of punishment." United States v. Goldfarb, 167 F.2d 735, 735 (2d Cir.1948) (per curiam). Accord United States v. Underwood, 880 F.2d 612, 618-19 (1st Cir.1989); United States v. Armstrong, 781 F.2d 700, 707 (9th Cir.1986). Moreover, this court has more recently announced that
16
'[T]he crime of criminal contempt requires a specific intent to consciously disregard an order of the court.' ... There is no requirement that the defendant be shown to have known of, and intended to violate, the statute which makes it a crime to consciously disregard an order of the court. In essence, [the defendant] sought a charge to the effect that ignorance of 'the law' would be a defense. Judge Bartels was correct in refusing to give such a charge.
17
United States v. Berardelli, 565 F.2d 24, 30 (2d Cir.1977).1
18
Under our precedents, Judge Bartels was again correct in this case in refusing to give such a charge and in excluding evidence regarding Remini's reasons for refusing to obey the court's order. The Supreme Court has evidenced similar approval for this understanding of the definition of "willfulness" in the law of contempt. In United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971), for example, the Court stated that it has
19
consistently held that the necessity for expedition in the administration of the criminal law justifies putting one who seeks to resist the production of desired information to a choice between compliance with a trial court's order ... prior to any review of that order, and resistance to that order with the concomitant possibility of an adjudication of contempt if his claims are rejected on appeal.
20
As the government argues, permitting the jury to consider the defense to contempt urged by Remini would encourage resistance to court orders, thereby delaying and sometimes denying altogether the fair and orderly administration of the law.
21
Finally, Remini's reliance on Cheek v. United States is misplaced. While granting defendants in tax cases a good faith defense, the Supreme Court recognized that "[t]he general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system." 111 S.Ct. at 609. It was "largely due to the complexity of the tax laws" and "[t]he proliferation of statutes and regulations [that] has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws," id., that the Supreme Court recognized an exception to the general rule. Id. There is nothing so complex about the law of contempt as to set it apart from the rest of the criminal law to which "ignorance ... is no defense." Id. at 609. We therefore find that the district court's evidentiary rulings and charge on "willfulness" were entirely correct.
Judicial Conduct During Summation
22
Appellant next urges that the district court evidenced a "hostile and abusive attitude" towards defense counsel that denied defendant the effective assistance of counsel and a fair trial, requiring reversal of defendant's conviction. Appellant argues specifically that during defense counsel's summation, the district court, by "repeated instruction to the jury that everything defense counsel said was either immaterial or irrelevant," conveyed to the jury the court's belief that the defendant was guilty. Appellant contends that the judge also yelled at defense counsel and addressed defense counsel in "increasingly threatening tones." Because we have only the cold record before us and cannot listen to the district judge's voice to determine the propriety of its tone or volume, see United States v. Robinson, 635 F.2d 981, 984-85 n. 2 (2d Cir.1980), cert. denied, 451 U.S. 992, 101 S.Ct. 2333, 68 L.Ed.2d 852 (1981), we must turn to the written trial transcript to discover whether the judge's rulings and instructions to the jury were in any way improper.
23
Defense counsel began his summation by arguing that although Remini deliberately refused to testify, his intent was not to commit a criminal contempt: "[w]here we disagree is on Georgie Remini's state of mind, willfully, what was in his head." As we have determined above, the district judge appropriately ruled that the government did not have to show Remini's bad intent in order to prove willfulness in criminal contempt and that Remini's intent not to commit a crime or his reliance on advice of counsel could not be a defense. The judge therefore properly sustained the government's objection to discussion of Remini's state of mind in this respect and instructed the jury accordingly. The judge properly sustained an objection to defense counsel's further continuation, in spite of the judge's ruling, of the "state of mind" line of argument.
24
Defense counsel next began to speculate that Remini had hired an attorney because he did not intend to commit criminal contempt, thereby introducing (while denying that he was introducing) the legally irrelevant advice of counsel defense. The judge then properly instructed the jury that "[t]his is all irrelevant to the issues in this case. I don't know the reasons why a person hires or doesn't hire a lawyer." During the discussion of Remini's hiring of a lawyer, defense counsel handed out to the jury the transcript of Remini's redacted testimony at the Gambino trial and commented upon the number of redactions:
25
There are five blank lines. You cannot speculate what's in those five blank lines, although--and I don't want you to speculate. You can't guess. You can't figure out what was there. Mr. Picozzi2 told you, however, when I asked him, that these pages were filled up originally. People are talking. His Honor has taken certain things out, left certain things in, so you can't guess what's in those five lines.
26
But you see that after those five lines, you see what Mr. Remini says. What does he say?
27
He says, "on the advice of counsel," and again I am not arguing to you that he should be found not guilty because his lawyer told him what to do.
28
Of course, as any reader can discern, that is exactly what defense counsel was arguing to the jury, in spite of the fact that the judge had ruled that defense irrelevant and had specifically redacted that portion of the transcript.
29
Counsel then discussed Remini's state of mind again, submitting that Remini's statements expressed fear and concern. The government rightly objected to this return to irrelevant considerations, and the court sustained the objection, instructing the jury that "[f]ear is irrelevant." Next, and perhaps most improper, defense counsel repeatedly argued to the jury during summation that since the government had not prosecuted Remini for perjury, the jury could infer that Remini was not lying when he testified that he believed he did not have a legal obligation to take the stand. The government correctly objected to this argument because it was premised on the nonexistent good faith defense to criminal contempt. The court cautioned counsel to stop pressing the irrelevant arguments. Defense counsel insisted, however, that "I don't believe that's irrelevant," to which the court, with considerable restraint, responded, "Well, that's irrelevant. I rule that it is." Even after this colloquy, defense counsel persisted in pursuing the argument. The court rightly chided him for ignoring the court's orders.
30
Finally, counsel argued that Remini had appealed to the court of appeals from Judge Weinstein's order to Remini to answer questions, although Judge Bartels had already ruled that whether a notice of appeal had been filed was irrelevant. An objection followed and the court properly sustained it.
31
In his closing instructions, the judge told the jury that his rulings and comments in no way indicated his opinion of facts and that the jury is the only trier of facts. Despite provocation, the district judge conducted himself properly, ruling appropriately on objections and attempting to stop defense counsel from ignoring his rulings. We cannot conclude that the actions of the district judge during defense counsel's summation in any way merit reversal of the conviction.
Adequate Immunity
32
Appellant next claims that the immunity afforded him at the Gambino trial was inadequate and that he was therefore illegally compelled to testify. He argues that the immunity he received from Judge Weinstein was qualified by the judge's earlier ruling during the Gambino trial that Gambino's literally true but misleading or evasive testimony would support a prosecution for obstruction of justice. This earlier ruling, according to appellant, restricted the immunity that he was granted and exposed him to prosecution for crimes other than "perjury, giving a false statement, or otherwise failing to comply with the order [of immunity]," those crimes set forth as exceptions to required use immunity under 18 U.S.C. § 6002.
33
In turning to the grant of immunity itself, we observe that when Remini had refused to testify, Judge Weinstein ordered him to do so, "pursuant to 18 U.S.C. § 6002." The judge did not in any way qualify his ruling or refer to other rulings issued in connection with the Gambino case or in connection with any other case. In the absence of any such qualification or reference, we take Judge Weinstein's order at face value and find that it provided Remini with exactly that degree of immunity provided by the statute referred to, 18 U.S.C. § 6002: not more, not less.
34
If Remini is correct that § 6002 prohibits later prosecution for literally true but misleading testimony, then he would have prevailed over the government had he taken the stand as he was ordered to do and had the government subsequently tried to prosecute him for offering misleading but literally true testimony. If Remini is not correct, however, and the exceptions to § 6002 include prosecution for misleading but literally true testimony, then he could appropriately have been prosecuted had he taken the stand and given misleading but literally true testimony. Either way, whether Remini could have ultimately been prosecuted for giving misleading testimony is immaterial in assessing the validity of Judge Weinstein's order to Remini to testify because his order referred only to the statute, " § 6002." Because it is not relevant to the evaluation of Remini's particular grant of immunity, we decline on this appeal to reach the issue of the scope of § 6002, and we find that the order in question satisfied both § 6002 and the Constitution. See Kastigar v. United States, 406 U.S. 441, 460-61, 92 S.Ct. 1653, 1665, 32 L.Ed.2d 212 (1972); cf. United States v. Gallo, 859 F.2d 1078, 1090 (2d Cir.1988) (Van Graafeiland, J., concurring), cert. denied, 490 U.S. 1089, 109 S.Ct. 2428, 104 L.Ed.2d 986 (1989).
Appropriate Sentencing Guideline
35
We next must calculate whether Remini was sentenced under the appropriate Guideline. The Guideline Index indicates that section 2J1.1 is the appropriate Guideline for violations of 18 U.S.C. § 401. This section, however, does not provide a Guideline for criminal contempt. Instead, it gives a cross reference that requires the application of Guideline 2X5.1, a Guideline which states that "[i]f ... no guideline expressly has been promulgated, apply the most analogous offense guideline. If there is not a sufficiently analogous guideline, the provisions of 18 U.S.C. § 3553(b) shall control." The district court found that the Obstruction of Justice Guideline, U.S.S.G. § 2J1.2, was the most analogous, and it therefore rejected Remini's claim that the most analogous Guideline was 2J1.5, the Guideline for Failure to Appear by a Material Witness.
36
Remini argues on appeal that we should adopt the First Circuit's holding in United States v. Underwood, 880 F.2d 612 (1st Cir.1989), that in a case of criminal contempt for failure to testify at a criminal trial, the most analogous Guideline is 2J1.5. Remini continues that since Obstruction of Justice requires proof of bad faith while criminal contempt--according to the district court--does not, it would be unfair to apply § 2J1.2. Such application, Remini claims, penalizes the contemnor as though she or he had evidenced a level of intent that the government was not required to prove and that the defendant was not given the opportunity to contest.
37
Appellant's argument has a surface appeal that disappears on further analysis. First, we note that the Commentary to section 2J1.1 explicitly states that "[i]n certain cases, the offense conduct will be sufficiently analogous to § 2J1.2 (Obstruction of Justice) for that guideline to apply." Clearly, then, the Guidelines contemplate application of the Obstruction of Justice Guideline to criminal contempt in some instances. In Underwood, moreover, the First Circuit did not hold that whenever a contemnor has disobeyed an order to testify, the appropriate Guideline is the one reserved for failure of a material witness to appear. Quite to the contrary, Underwood was a special case. "Underwood, according to the district court's express findings, did not intend to 'obstruct justice;' he simply intended not to testify." 880 F.2d at 620. In our case, in contrast, Judge Bartels specifically found the opposite at sentencing: that Remini intended to obstruct justice. While the distinction between good faith and bad faith in this sense is, as we have found, irrelevant for purposes of conviction, it appropriately plays a central role in choosing an applicable Sentencing Guideline in cases of criminal contempt. See, e.g. Goldfarb, 167 F.2d at 735. Because the district court found that Remini intended to obstruct justice, the court's choice of the Obstruction of Justice Guideline was not in error.
Two-Point Reduction
38
Appellant finally claims that because he admitted in his statement to the Probation Department that he had refused to testify, and because the trial court ruled that his reasons for refusing were irrelevant, he effectively admitted all essential elements of the crime of contempt and should have received a two-point credit for acceptance of responsibility.
39
We note first that a sentencing court's evaluation of whether a defendant has accepted responsibility "is entitled to great deference on review" because of the court's "unique position to evaluate a defendant's acceptance of responsibility." U.S.S.G. § 3E1.1, comment. (n. 5); United States v. Woods, 927 F.2d 735, 735 (2d Cir.1991) (per curiam). Under 18 U.S.C. § 3742(d), this court must accept the district court's fact findings unless they are clearly erroneous. This standard of review applies to determinations of acceptance of responsibility under U.S.S.G. § 3E1.1. See United States v. Charria, 919 F.2d 842, 849 (2d Cir.1990), cert. denied, --- U.S. ----, 112 S.Ct. 62, 116 L.Ed.2d 38, 112 S.Ct. 62 (1991).
40
In light of the standard articulated above, we cannot say that Judge Bartels's determination that Remini did not accept responsibility for his actions was clearly erroneous. Although the trial court ruled that Remini's alleged reasons for refusing to testify did not establish a defense, it does not follow from this legally sound ruling that Remini accepted responsibility for committing the crime in question. Quite to the contrary, he insisted that he was entitled to act as he did and continues to insist the same on this appeal. We therefore find that the district judge's refusal to grant Remini a reduction for acceptance of responsibility was reasonable and should be affirmed. We have considered all of appellant's remaining arguments and find them to be without merit.
41
Affirmed.
*
Honorable David G. Larimer, United States District Judge for the Western District of New York, sitting by designation
1
Judge Bartels was also the trial judge in Berardelli
2
Picozzi was the court reporter at the Gambino trial and a witness at Remini's trial | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2859815/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-93-188-CR
DARNELL ROBERT SMITH,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT
NO. 0925073, HONORABLE JON N. WISSER, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of burglary of a vehicle. Penal Code, 63d Leg.,
R.S., ch. 399, sec. 1, § 30.04, 1973 Tex. Gen. Laws 883, 927 (Tex. Penal Code Ann. § 30.04,
since amended). The jury assessed punishment, enhanced by two previous felony convictions,
at imprisonment for thirty-two years.
On the night of September 3, 1992, a battery, jumper cables, and tools were stolen
from a Ford truck belonging to Alexander Arocha as it sat in the parking lot of Arocha's
employer, Intermedics Orthopedics. Jeffery Russell was waiting in the parking lot for his father,
Bobby Russell, to get off work and saw appellant take the battery from Arocha's truck. The
Russells saw appellant a few minutes later standing beside a beige Oldsmobile in a restaurant
parking lot a short distance from the Intermedics lot. Appellant appeared to be using Arocha's
battery and cables to start the Oldsmobile. After appellant was arrested by a police officer
responding to the burglary report, the other items taken from Arocha's truck were found in the
Oldsmobile.
In his first point of error, appellant contends the evidence is legally insufficient to
sustain his conviction. See Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d
154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981).
Appellant's argument under this point is an attack on Russell's in-court identification of appellant
as the burglar. Appellant points to testimony that the lighting in the Intermedics parking lot was
not good and to Russell's admission that he did not get a good look at the burglar's face as he
watched the battery being taken. This Court must, however, view the evidence in the light most
favorable to the verdict. It was for the jury to determine the credibility of Russell's identification
of appellant under the circumstances shown. Tex. Code Crim. Proc. Ann. art. 38.04 (West
1979). Because Russell's testimony is sufficient to support a rational finding that appellant
burglarized Arocha's truck, the first point of error is overruled.
In point of error two, appellant urges that the district court erred by permitting the
State to call Bobby Russell as a witness because his name was not given to the defense before
trial. The State was ordered to give a written list of its witnesses to defense counsel. Although
no witness list was prepared, it appears that the identity of every State witness except Bobby
Russell was disclosed to the defense prior to trial. The prosecutor explained that he learned only
two days before trial began that Russell had witnessed any of the relevant events.
When an undisclosed witness is permitted to testify over objection, the standard for
review is whether the trial court abused its discretion. Hightower v. State, 629 S.W.2d 920 (Tex.
Crim. App. 1981). After appellant objected to Bobby Russell testifying, trial was recessed and
defense counsel was given twenty minutes to interview the witness. When the parties returned
to the courtroom, defense counsel declined the court's offer of more time to talk to Russell saying,
"I think I've had enough for this witness." Under the circumstances, the district court has not
been shown to have abused its discretion by allowing Bobby Russell to testify. Point of error two
is overruled.
In his last point of error, appellant complains that the district court erred by
overruling his Batson objection to the State's peremptory strike of venire member Patricia
Robinson. Batson v. Kentucky, 476 U.S. 79 (1986); see also Tex. Code Crim. Proc. Ann. art.
35.261 (West 1989). Appellant contends that Robinson was struck because she is African-American. In considering this point, we will view the record in the light most favorable to the
court's ruling and will not disturb it unless it is shown to be clearly erroneous. Harris v. State,
827 S.W.2d 949, 955 (Tex. Crim. App. 1992).
The prosecutor explained her strike of Robinson as follows:
I struck her because she's only lived in Travis County for a year and a half and
she's only been employed as a day care teacher for one month. Prior employment
before that is three months, does not have stable employment and does not have
lengthy community ties. She also did not check the box if she had ever been
accused, complainant or witness or -- in a criminal case.
Defense counsel responded, "Judge, I just don't believe that's a sufficient reason. For the record
I would note that the prosecutors didn't ask Ms. Robinson any questions." The objection was then
overruled.
Robinson was number forty-one on the jury list. Neither the prosecutor nor defense
counsel questioned her directly during voir dire, and she did not respond to any questions
addressed to the panel as a whole. Counsels' apparent lack of interest in Robinson was likely due
to her relatively low position on the list, which would have left her out of the group of possible
jurors in many cases. But the district court granted twelve challenges for cause after voir dire was
completed, meaning that the "strike zone" in this cause extended through venire member forty-four.
The prosecutor's explanation for her strike of Robinson was race-neutral on its
face. Appellant argues, however, that an examination of the juror information cards, which are
contained in the transcript, reveals that the State did not use peremptory challenges against
similarly situated panelists. The State responds that we should not consider the juror information
cards because they were not in evidence at the Batson hearing. Vargas v. State, 838 S.W.2d 552,
556-57 (Tex. Crim. App. 1992). In Vargas, the Court of Criminal Appeals held that a
comparative analysis of venire members must be based on evidence presented to the trial court
either during voir dire or at the Batson hearing. Because the juror information cards in Vargas
had not been introduced in evidence or otherwise brought to the attention of the trial court, they
could not be considered on appeal in evaluating the defendant's Batson claim. Vargas, 838
S.W.2d at 557.
In this cause, the information on which the prosecutor based her peremptory
challenge to Robinson was obviously gleaned from the venire member's juror information card.
Appellant, however, did not bring the contents of the other juror information cards to the attention
of the district court and there is nothing in the record to indicate that the court considered the
cards in overruling appellant's Batson objection. Under the holding in Vargas, we may not
consider the juror information cards in determining appellant's point of error. Cf. Cornish v.
State, 848 S.W.2d 144, 145 (Tex. Crim. App. 1993) (appellate court could properly consider
juror information cards where defense counsel specifically referred to them for comparison
purposes and trial court replied that "[t]he cards will speak for themselves").
Even if we do compare Robinson's information card with the cards completed by
the other venire members, appellant's point of error fails. Appellant refers us to four white venire
members who were not peremptorily struck by the State despite having, in appellant's view, juror
information cards substantially identical to Robinson's. Two of the panelists cited by appellant
for comparison purposes, Melissa Lewis and Michelle Tugg, were successfully challenged for
cause. A third, Miriam Harrelson, appeared on the juror list after the State exercised its last
peremptory challenge. The fourth, David Bresemann, had been a Travis County resident for only
one year and, like Robinson, did not indicate if he had ever been involved in a criminal
prosecution. But Bresemann had been in his current job for one year and had held his previous
job for three and one-half years. This relatively stable employment history contrasts with the brief
periods of employment cited by the prosecutor as among her reasons for striking Robinson. We
find no evidence of disparate treatment that would lead us to conclude that the district court
clearly erred by overruling appellant's Batson objection. Point of error three is overruled.
The judgment of conviction is affirmed.
Before Chief Justice Carroll, Justices Jones and Kidd
Affirmed
Filed: January 11, 1995
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/2860006/ | TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00558-CR
Adrian Stefan Owens, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT
NO. 93-767-K368, HONORABLE BURT CARNES, JUDGE PRESIDING
PER CURIAM
Appellant pleaded guilty to an indictment accusing him of injury to a child. Act
of May 29, 1989, 71st Leg., R.S., ch. 357, § 1, 1989 Tex. Gen. Laws 1441, amended by Act of
May 27, 1991, 72d Leg., R.S., ch. 497, § 1, 1991 Tex. Gen. Laws 1742 (Tex. Penal Code Ann.
§ 22.04, since amended). The district court found that the evidence substantiated appellant's guilt
and, pursuant to a plea bargain agreement, deferred further proceedings and placed appellant on
community supervision. The court subsequently revoked supervision on the State's motion,
adjudicated appellant guilty, and assessed punishment at imprisonment for ten years.
Appellant's court-appointed attorney filed a brief in which she concludes that the
appeal is frivolous and without merit. The brief meets the requirements of Anders v. California,
386 U.S. 738 (1967), by presenting a professional evaluation of the record demonstrating why
there are no arguable grounds to be advanced. See also Penson v. Ohio, 488 U.S. 75 (1988);
Gainous v. State, 436 S.W.2d 137 (Tex. Crim. App. 1969); Jackson v. State, 485 S.W.2d 553
(Tex. Crim. App. 1972); Currie v. State, 516 S.W.2d 684 (Tex. Crim. App. 1974); High v.
State, 573 S.W.2d 807 (Tex. Crim. App. 1978). A copy of counsel's brief was delivered to
appellant, and appellant was advised of his right to examine the appellate record and to file a pro
se brief. No pro se brief has been filed.
Appellant's notice of appeal does not preserve for review the district court's rulings
on appellant's pretrial motions and does not state that the court gave appellant permission to
appeal. As a result, we have jurisdiction in this cause only to consider jurisdictional issues.
Watson v. State, 924 S.W.2d 711, 714-15 (Tex. Crim. App. 1996); Tex. R. App. P. 40(b)(1).
Appellant's brief does not question the jurisdiction of the district court over either the subject
matter of this cause or appellant personally. Fairfield v. State, 610 S.W.2d 771, 779 (Tex. Crim.
App. 1981). In light of the frivolous appeal brief, we have examined the record and find no basis
for challenging the district court's jurisdiction. Under the circumstances, we do not have
jurisdiction of this appeal.
The appeal is dismissed.
Before Justices Powers, Aboussie and Jones
Dismissed for Want of Jurisdiction
Filed: September 11, 1996
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1027352/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4823
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HEIDI JANELLE SILVER MYERS,
Defendant – Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P.
Stamp, Jr., Senior District Judge. (5:06-cr-00055-FPS-JES-1)
Submitted: November 18, 2008 Decided: December 9, 2008
Before MICHAEL, MOTZ, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William B. Moffitt, III, MOFFITT & BROADNAX, LTD., Alexandria,
Virginia, for Appellant. Sharon L. Potter, United States
Attorney, Paul T. Camilletti, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Heidi Janelle Silver Myers was found guilty, after a
bench trial, of criminal contempt in violation of 18 U.S.C.A.
§ 401(3) (West Supp. 2008). The facts adduced at her trial
revealed the following. Myers was a practicing attorney and was
being investigated for possible fraudulent billing. A search
warrant executed at her law office revealed that closed client
case files, a computer server, and a backup hard drive were
missing (hereinafter “missing items”). Accordingly, a federal
grand jury issued two subpoenas duces tecum which ordered Myers
to produce the missing items, returnable to the United States
District Court for the Northern District of West Virginia on
December 5, 2006, at 9:00 a.m.
Myers failed to appear as ordered on December 5.
Rather, on December 4, 2006, she retained William Benjamin
Moffitt to represent her and he advised her not to appear before
the grand jury the next day, believing he could have the matter
continued, as neither he nor his law partner, Pleasant S.
Broadnax, III, could appear with Myers before the grand jury
that day. Because Myers failed to appear on December 5 and
because no motion for continuance or other motion was filed that
day, an arrest warrant issued for Myers at approximately 4 p.m.
There was no evidence that either subpoena was unlawful and the
2
Government had a “taint or privilege team” designed to protect
the integrity of any confidential information, in light of the
fact that closed client files were sought in the subpoenas.
Myers’ previous criminal counsel, Byron Craig Manford, had
informed Myers that she could be held in contempt if she failed
to comply with the subpoenas.
As discussed in district court’s post-trial memorandum
finding Myers guilty of criminal contempt, the court made the
following legal and factual findings. Criminal contempt seeks
to vindicate the authority of a court by punishing the contemnor
and deterring future litigants from misconduct. Buffington v.
Baltimore Co., Md., 913 F.2d 113, 133 (4th Cir. 1990). The
Government proved the elements of offense because: (1) Myers was
served with lawful subpoenas to appear before the federal grand
jury; (2) Myers failed to comply with those subpoenas; and (3)
such failure to comply was willful. The court noted the first
two elements of the offense were uncontested. See United
States v. McMahon, 104 F.3d 638, 646 (4th Cir. 1997) (discussing
elements). Regarding the willfulness element, the court relied
on Licavoli v. United States, 294 F.2d 207, 209 (D.C. Cir.
1961), finding that willfulness under the statute merely
requires a deliberate intention to do the act and that advice of
counsel does not immunize that simple intention. Id. The court
noted that other opinions supported this legal conclusion,
3
citing to United States v. Remini, 967 F.2d 754, 757 (2d Cir.
1992), and United States v. Golfarb, 167 F.2d 735, 735-36 (2d
Cir. 1948).
The court found no evidence that Myers had a good
faith belief that she was complying with the subpoenas; rather,
there was evidence to show she knew she was disobeying the
orders. The court distinguished this Court’s opinion in In re
Walters, 868 F.2d 665, 668 (4th Cir. 1989), from the instant
case. Regarding the Walters opinion, the district court noted:
(1) it was an appeal of a civil contempt in bankruptcy
proceeding; (2) Walters relied on United States v. Armstrong,
781 F.2d 700, 706 (9th Cir. 1986), and NLRB v. Berkley Mach.
Works & Foundry Co., 189 F.2d 904, 909 (4th Cir. 1951), for its
reasoning; (3) Armstrong and Berkley Mach. Works rejected the
argument that good faith reliance upon the advice of counsel
vitiated the willfulness element of the crime of criminal
contempt. Thus, the district court concluded that the statement
of law relied on by Myers in the Walters opinion was dictum, and
therefore failed to provide a basis for precluding the finding
of the willfulness element of the offense.
Alternatively, the district court found that, even if
the advice of counsel was an appropriate legal defense, Myers
failed to produce sufficient evidence in support of it. Rather,
the court noted, Moffitt’s testimony related only to the
4
problems he and his law partner Broadnax encountered in
attending the grand jury hearing without Myers. The court
observed that, if Myers was concerned about attorney-client
privilege issues, there was no evidence presented that she had
advised Moffitt or his partner that the Government had secured a
taint or privilege team in an attempt to address this issue.
Moreover, the court found that there was insufficient
evidence that Myers’ “disobedience of the grand jury subpoenas
was even undertaken in good faith reliance on her counsel’s
advice.” (JA 378). Rather, the court found that there was
sufficient evidence that Myers knew both as a attorney
practicing criminal defense work and as a result of the advice
from her former criminal counsel, Manford, that she had options
other than simply disobeying the order of the court, i.e. to
file motions seeking relief from or the postponement of the
court’s orders. Indeed, the court noted that when Broadnax
called the district court on December 5, he was told by someone
in the judge’s chambers that the judge preferred to have a
motion to address any such issues. The court found no
evidentiary support for the fact that either Myers herself, or
counsel, lacked the ability to file a motion with the court—by
electronic filing, facsimile, or otherwise—and bring to the
court’s attention the issues now raised.
5
In its memorandum opinion denying Myers’ motion for a
judgment of acquittal, the district court reiterated its above
findings regarding Myers’ good faith argument. The court found
that “any reliance by Myers on counsel’s advice not to appear
because of a scheduling conflict . . . was not made in good
faith and therefore does not negate willfulness.” (JA 389).
The court also rejected Myers’ argument that her
plausible but mistaken alternative of obtaining a continuance
negated the element of willfulness. The court found Myers’
reliance on McMahon, 104 F.3d at 642-45, for this proposition,
was misplaced. The court found that McMahon stood for the
proposition that the court order at issue must be sufficiently
clear as to provide adequate notice to the defendant. Here,
there was simply no question that the two subpoenas at issue
provided Myers with definite, clear, and specific notice of what
was required of her. Moreover, the court noted that the
testimony at trial revealed that Moffitt told Myers he would try
to get a continuance for her mandated appearance before the
grand jury—but that Moffitt never told her he had done so.
Critically, the court found that there was no evidence that
Myers “believed a continuance had been effectuated, [therefore]
her argument must fail because no evidence presented at trial
indicates anything about what Myers believed.” (JA 391).
6
The probation officer made the following
recommendations in the presentence report (“PSR”). It found the
base offense level was 14, under U.S. Sentencing Guidelines
Manual (“USSG”) § 2J1.2 (2007). The probation officer used the
obstruction of justice base offense level, finding that it was
the most analogous guideline. With Myers’ criminal history
category of I, this yielded a sentencing range of 15-21 months.
The district court conducted a comprehensive
sentencing hearing. Dr. Susan J. Fiester, a psychiatrist,
testified for the defense regarding Myers’ bipolar disorder.
The court addressed Myers’ seventeen objections to the PSR, but
ultimately adopted the findings in the report. The court
grouped the objections into three categories. First, the court
found that Myers’ base offense level was properly calculated
using the obstruction of justice guideline under USSG § 2J1.2,
rather than using the failure to appear by a material witness
guideline, following the guidance of USSG § 2J1.1 (n.1). See
id. (“In certain cases, the offense conduct will be sufficiently
analogous to § 2J1.2 (Obstruction of Justice) for that guideline
to apply.”). Second, the court found that the contempt
conviction should be classified as a Class A felony, rather than
a class B misdemeanor. Third, the court found it had authority
to punish the contempt offense with both a fine and a term of
imprisonment.
7
Thus, the court concluded “I do not intend to depart
from the Guidelines as determined by the probation officer,
[but] I do intend to impose a variance sentence.” (JA 527).
The court determined it would “impose a variance sentence of
three offense levels below the Guideline sentence” (JA 527),
giving Myers a total offense level of 11. (Id.). This yielded
a sentencing range of 8-14 months. The court then reviewed
possible mitigating factors, expressly considered the factors in
18 U.S.C.A. § 3553(a) (West 2006 & Supp. 2008), listened to the
arguments of counsel, and sentenced Myers to four months of
imprisonment.
Myers timely appeals, raising the following issues:
(1) whether the district court erred by finding that Myers’
reliance on counsel’s advice was not an affirmative defense to
criminal contempt; (2) whether district court erred in finding
that Myers’ good faith pursuit of a mistaken though plausible
alternative did not apply where counsel sought a continuance for
Myers’ grand jury appearance due to a variety of exigent
circumstances; (3) whether the district court erred in using the
obstruction of justice guideline; (4) whether the district
court erred in applying the 18 U.S.C.A. § 3553(a) factors by
failing to consider her post-offense conduct, her bipolar
disorder, her reliance on advice of counsel, and the disparity
between her sentence and sentences of similarly-situated
8
defendants; and (5) whether the district court erred in finding
that the criminal contempt offense was a Class A felony. For the
reasons that follow, we affirm.
First, Myers argues that her good faith reliance on
counsel’s advice not to appear as ordered creates a defense to
her contempt conviction. The parties agree we review this issue
de novo. Armstrong, 781 F.2d at 706. We agree with the
district court that Myers’ reliance on counsel’s advice to fail
to appear as ordered, does not negate the willfulness element of
the contempt offense. Berkely Mach. Works, 189 F.2d at 909;
Remini, 967 F.2d at 757.
Second, Myers alleges that her good faith pursuit of a
mistaken though plausible alternative—where counsel sought a
continuance for Myers’ grand jury appearance due to a variety of
exigent circumstances—creates an affirmative defense to the
crime. As noted by the district court, however, Myers reliance
on this argument is misplaced. As our case law makes clear,
McMahon, 104 F.3d at 642-45, this would only be a defense if the
subpoenas themselves were unclear. Moreover, both of these
issues are undercut by the district court’s alternative and
detailed factual findings that it did not believe Myers had a
legitimate, good faith belief in the advice from her counsel.
See United States v. Greyhound Corp., 508 F.2d 529, 532 (7th
Cir. 1974).
9
Third, Myers argues that the district court erred by
using the obstruction of justice base offense level for her
crime. As noted by the parties, however, there is no specific
base offense level for criminal contempt. Rather, the offense
of contempt is located in USSG § 2J1.1, which in turn, cites to
“§ 2X5.1 (Other Offenses).” Id. Section 2X5.1 directs that
“[i]f the offense is a felony for which no guideline expressly
has been promulgated, apply the most analogous offense
guideline.” Id. Application Note 1 to USSG 2J1.1 states that
“[i]n certain cases, the offense conduct will be sufficiently
analogous to § 2J1.2 (Obstruction of Justice) for that guideline
to apply.” USSG § 2J1.1 (n.1). Reference to USSG 2J1.2, for
obstruction of justice, reveals a base offense level of 14. We
do not find the district court erred by applying the base
offense level for obstruction, in light of the above guidelines
sections, and based on the district court’s factual findings
that Myers failed to appear in an attempt to impede the
discovery of her alleged overbilling charges. See United
States v. Lambert, 994 F.2d 1088, 1091-92 (4th Cir. 1993)
(recognizing circumstances where an offense conduct may not fit
precisely into any one Sentencing Guidelines section).
Next, Myers alleges that the district court erred in
applying the factors in 18 U.S.C.A. § 3553(a). Following the
Supreme Court’s opinion in United States v. Booker, 543 U.S. 220
10
(2005), a district court must engage in a multi-step process at
sentencing. First, it must calculate the appropriate advisory
Sentencing Guidelines range. It must then consider the
resulting range in conjunction with the factors set forth in
§ 3553(a) and determine an appropriate sentence. United
States v. Davenport, 445 F.3d 366, 370 (4th Cir. 2006). We
review a district court’s imposition of a sentence for an abuse
of discretion. Gall v. United States, 128 S. Ct. 586, 596-97
(2007); United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007). We find no abuse of discretion in Myers’ sentencing.
Finally, we find no reversible error in the district
court’s decision to adopt the probation officer’s finding that
Myers’ contempt conviction was a Class A felony. (JA 525-26).
The classification of an offense as a felony or a misdemeanor is
a question of law we review de novo. United States v. Bennett,
472 F.3d 825, 831 (11th Cir. 2006). The Supreme Court has not
characterized contempt as either a felony or misdemeanor. See
United States v. Holmes, 822 F.2d 481, 493 (5th Cir. 1987). The
district court relied on United States v. Mallory, 525 F. Supp.
2d 1316 (S.D. Fla. 2007), to conclude that Myers’ contempt
offense was a Class A felony. Myers wishes us to follow the
opinion in United States v. Carpenter, 91 F.3d 1282 (9th Cir.
1996).
11
We decline to adopt the opinion of Mallory or
Carpenter, but reject Myers’ argument in this case. In
Carpenter the Ninth Circuit held that “criminal contempt should
be classified for sentencing purposes according to the
applicable Guidelines range for the most nearly analogous
offense.” Carpenter, 91 F.3d at 1285. The Court went on to
hold that the defendant was properly sentenced under the
obstruction of justice guideline. Here, the district court used
the obstruction of justice guideline and sentenced Myers
substantially below that range. We note that Myers’ four-month
sentence is within the same zero-to-six months range that she
would have received if, as Myers’ argues, her contempt violation
was considered a misdemeanor and she was sentenced using the
failure to appear by a material witness guideline under USSG
§ 2J1.5(a)(2).
Accordingly, we affirm Myers’ conviction and sentence.
We dispense with oral argument as the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
12 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1027380/ | 549 F.3d 941 (2008)
Carrie DENNISON, on behalf of herself and all others similarly situated, Plaintiff-Appellee,
v.
CAROLINA PAYDAY LOANS, INCORPORATED, Defendant-Appellant.
No. 08-2187.
United States Court of Appeals, Fourth Circuit.
Argued: October 29, 2008.
Decided: December 12, 2008.
ARGUED: Henrietta U. Golding, McNair Law Firm, P.A., Myrtle Beach, South Carolina, for Appellant. Joe R. Whatley, Jr., Whatley, Drake & Kallas, LLC, New York, New York, for Appellee. ON BRIEF: Alan S. Kaplinsky, Mark J. Levin, Ballard Spahr Andrews & Ingersoll, L.L.P., Philadelphia, Pennsylvania; Rita M. McKinney, McNair Law Firm, P.A., Greenville, South Carolina, for Appellant. J. Preston Strom, Jr., Mario A. Pacella, Strom Law Firm, Columbia, South Carolina, for Appellee.
Before NIEMEYER, TRAXLER, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge TRAXLER joined. Judge AGEE wrote a separate opinion concurring in part, dissenting in part, and concurring in the judgment.
*942 NIEMEYER, Circuit Judge:
Carrie Dennison, a citizen of South Carolina, filed an action on behalf of herself and all other "citizens of South Carolina," who were similarly situated, against Carolina Payday Loans, Inc., alleging that Carolina Payday, in making "payday loans" to Dennison, violated South Carolina Code § 37-5-108 (prohibiting unconscionable loans) and South Carolina common law duties of good faith and fair dealing. Alleging minimal diversity under the Class Action Fairness Act of 2005 ("CAFA"), 28 U.S.C. § 1332(d)(2)(A), Carolina Payday removed the action to federal court under 28 U.S.C. § 1453(b). It claimed that it satisfied the requirements for minimal diversity, as defined in § 1332(d)(2)(A), either (1) because it is a citizen of Georgia, where it claims it has its principal place of business, even though it is also a citizen of South Carolina, where it is incorporated, or (2) because some of the class members had moved from South Carolina and were citizens of other States.
On Dennison's motion to remand, the district court found that Carolina Payday failed to establish minimal diversity under § 1332(d)(2)(A) because even though Carolina Payday might be a citizen of Georgia, it is also a citizen of South Carolina, and the plaintiff and class members are citizens of South Carolina. The court further found that the class action fell within the "home-state exception" to CAFA jurisdiction set forth in 28 U.S.C. § 1332(d)(4) because in a class limited by definition to "citizens of South Carolina," at least two-thirds of the class members necessarily are citizens of South Carolina. Accordingly, the district court remanded the case to state court. We granted Carolina Payday's petition for permission to appeal the remand order under 28 U.S.C. § 1453(c).
The facts and issues raised in this case are substantively identical to those raised in Johnson v. Advance America, Cash Advance Centers of South Carolina, Inc., 549 F.3d 932 (4th Cir.2008). Carolina Payday is a citizen of South Carolina, albeit also a claimed-to-be citizen of another State, and the class is defined to include only citizens of South Carolina, thus excluding persons who may have moved from South Carolina and established citizenship elsewhere at the time the action was commenced. For the reasons given in Advance America, therefore, we conclude that Carolina Payday cannot carry its burden of demonstrating that any member of the plaintiff's class is a citizen of a State "different from" Carolina Payday, as required by 28 U.S.C. § 1332(d)(2)(A). Accordingly, we affirm the district court's remand order.
At oral argument, which took place on the same day that Advance America was argued, Carolina Payday emphasized facts that might distinguish this case from Advance America in several respects. First, Carolina Payday argues that the class definition in this case can be read to include persons who were citizens of South Carolina at the time of transactions with Carolina Payday but who have since become citizens of other States. It points to the class definition here, which includes "all citizens of South Carolina" and is unlike the definition of the class for injunctive relief in Advance America, which purportedly limited the class to include only "citizens of South Carolina who are domiciled in South Carolina." Advance America, 549 F.3d at 934 (emphasis added).[1] This distinction in language, however, is *943 immaterial because an individual must be domiciled in a State in order to be a citizen of that State. See Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 828, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989). Thus, the domicile requirement injected in the injunctive-relief class definition in Advance America was surplusage. The definitions of the classes in Advance America and here are substantively identical, each limiting the class to citizens of South Carolina at the time the action was commenced.
Like in Advance America, if one of Carolina Payday's customers had in fact established a domicile outside of South Carolina before the action was commenced, the customer would not be a "citizen of South Carolina" and therefore not a member of the proposed class. Likewise, if the customer moved from South Carolina after the action was commenced, that fact would not alter federal jurisdiction, which is fixed at the time the complaint or notice of removal is filed. See Mollan v. Torrance, 22 U.S. (9 Wheat.) 537, 539, 6 L.Ed. 154 (1824); see also Grupo Dataflux v. Atlas Global Group, L.P., 541 U.S. 567, 570-71, 124 S.Ct. 1920, 158 L.Ed.2d 866 (2004); 28 U.S.C. § 1332(d)(7).
Carolina Payday also argues that unlike the affidavits in Advance America, its proffered affidavit stated that "one or more customers of Carolina Payday entered into loan agreements with Carolina Payday while citizens of South Carolina but are now citizens of other States." Its affidavit, however, does not support the argument that a class member can be someone other than a citizen of South Carolina at the time the complaint was filed. See 28 U.S.C. § 1332(d)(7). If a South Carolina citizen entered into a loan agreement with Carolina Payday and then moved from the State before the action was commenced, the fact that the person was not a citizen of South Carolina at the time the action was commenced simply means that the person does not qualify as a member of the class. Dennison defined the class to constitute only citizens of South Carolina, and Carolina Payday cannot redefine the class to include non-citizens.
Finally, Carolina Payday argues in its brief that this case is distinguishable from Advance America because in Advance America, the class members, as citizens of South Carolina, were not diverse from the defendant that had its principal place of business in South Carolina. Carolina Payday points out that in this case, the class members, also citizens of South Carolina, are in fact diverse from Carolina Payday because it has its principal place of business, as it claims, in Georgia.[2] It argues that even though Carolina Payday is incorporated in South Carolina, the minimal diversity analysis under § 1332(d)(2)(A) should differ when the defendant's principal place of business is in a State different from the State of the class members' citizenship. Carolina Payday reasons that focusing on a corporation's principal place of business for purposes of *944 citizenship would reduce forum shopping because a corporation would not be inclined to choose its principal place of business to establish CAFA jurisdiction. But Carolina Payday cites no authority to support its argument. Section 1332(c)(1) provides that "a corporation shall be deemed to be a citizen of any State by which it has been incorporated and of the State where it has its principal place of business." 28 U.S.C. § 1332(c)(1) (emphasis added). The statute does not give greater weight to a corporation's principal place of business than to its place of incorporation. For purposes of diversity jurisdiction, Carolina Payday is a citizen of both South Carolina, its State of incorporation, and Georgia, assuming it is able to demonstrate that its principal place of business is in Georgia. Whether it is a citizen of Georgia, however, is immaterial as it is indisputably a citizen of South Carolina and therefore cannot show that it is not a citizen of South Carolina.
Like the defendant in Advance America, Carolina Payday cannot sustain its burden of establishing, as required by § 1332(d)(2)(A), that "any member of [the] class of plaintiffs is a citizen of a State different from any defendant." As we pointed out in Advance America, "[t]he language of the statute imposes a requirement on [Carolina Payday] to prove the negativei.e. that it is not a citizen of South Carolinaand that it cannot do." Advance America, 549 F.3d at 936. It was incorporated in South Carolina and therefore is a citizen there.
Because Carolina Payday Loans has not established the existence of minimal diversity, we do not reach whether the home-state exception of 28 U.S.C. § 1332(d)(4) applies to defeat federal jurisdiction in this case.
On the reasoning of Advance America, we affirm the order of the district court in this case, remanding the case to state court for lack of diversity jurisdiction under CAFA.
AFFIRMED
AGEE, Circuit Judge, concurring in part, dissenting in part, and concurring in the judgment:
I agree with the majority opinion that Carolina Payday fails to satisfy the requirements of 28 U.S.C. § 1332(d)(2)(A) on the basis of its dual citizenship. As in the companion case decided today, Johnson v. Advance America, Cash Advance Centers of South Carolina, Inc., 549 F.3d 932 (4th Cir.2008), I write separately because I respectfully disagree with the conclusion in the majority opinion that the language of the Complaint has limited the classes of plaintiffs to only citizens of South Carolina as of the time the Complaint was filed. Nonetheless, I concur in the judgment of the majority because Carolina Payday failed to meet its burden of proof to establish the citizenship of any plaintiff in a state other than South Carolina.
The Complaint sets out three classes of plaintiffs as follows:
Injunctive Relief Class: All citizens of South Carolina who borrowed money from Defendant in the three years preceding the filing of the complaint or who will borrow money from Defendant in the future.
Damages Subclass One: All citizens of South Carolina who borrowed money from Defendant in the three years preceding the filing of this complaint whose monthly obligations exceeded 55% of their gross monthly income.
Damages Subclass Two: All citizens of South Carolina who renewed a loan with *945 Defendant by repaying only the interest and received a new loan.
(J.A. 12-13).
Carolina Payday contends that these class definitions "may reasonably be read as including, in addition to current South Carolina residents, any individual who was a South Carolina citizen at the time he or she borrowed money .. . but who at the time of removal was a citizen of a different state." (Br. Appellant 20.) As in Advance America, the majority finds this argument unpersuasive based on its reading of the classes as defined in the Complaint. The majority opinion reasons that "if one of Carolina Payday's customers had in fact established a domicile outside of South Carolina before the action was commenced, the customer would not be a `citizen of South Carolina' and therefore not a member of the proposed class." Supra at 942-43. For the reasons stated in my separate opinion in Advance America, I disagree.
As with the definitions of Damages Subclass One and Damages Subclass Two in Advance America, membership in the proposed classes of plaintiffs in this case is not defined in the present tense but in the past tense. The definitions of the proposed classes in the Complaint do not limit their members to those persons who are citizens of South Carolina at the time the complaint was filed. Instead, members of the respective classes are those persons who either "borrowed money from the Defendant" or "renewed" a loan while South Carolina citizens. Thus, to be a member of the classes, a person need only have borrowed from Carolina Payday over the last three years, or renewed a loan, while a South Carolina citizen. The failure of the Complaint to place a certain temporal requirement on class membership leaves open the potential membership to persons who were not South Carolina citizens when the Complaint was filed, even though they were South Carolina citizens when their transactions with Carolina Payday took place. If such persons with other than South Carolina citizenship do exist in fact, then the minimal diversity requirements enunciated in CAFA would be met and jurisdiction in the district court would be established. 28 U.S.C. § 1332(d)(2) (2006).
Nevertheless, I concur with the judgment in this case because Carolina Payday has failed in its burden of proof. See Strawn v. AT & T Mobility LLC, 530 F.3d 293, 298 (4th Cir.2008) ("[T]he party seeking to invoke federal jurisdiction must ... demonstrate the basis for federal jurisdiction."). Carolina Payday's "evidence" to meet its burden of proof for removal is simply the naked statement in an affidavit that "One or more customers of Carolina Payday entered into loan agreements with Carolina Payday while citizens of South Carolina but are now citizens of other states."[3] (J.A. 34) (emphasis added). Such an allegation proves nothing as Carolina Payday failed to show any of its customers who are potential class members under the Complaint did anything other than change residence. "[S]tate citizenship for purposes of diversity jurisdiction *946 depends not on residence, but on national citizenship and domicile, and the existence of such citizenship cannot be inferred from allegations of mere residence, standing alone." Axel Johnson, Inc. v. Carroll Carolina Oil Co., 145 F.3d 660, 663 (4th Cir.1998) (internal citations omitted).
Thus, Carolina Payday fails as a matter of law to meet its burden of proof to show any potential plaintiff was a citizen of any state other than South Carolina. Accordingly, even though I disagree with the majority's conclusion that the Complaint's definition of the classes limits their membership to citizens of South Carolina at the time the Complaint was filed, Carolina Payday has failed to show any non South Carolina citizen actually exists. I thus concur in the judgment of the majority because Carolina Payday has failed to demonstrate the existence of federal jurisdiction under 28 U.S.C. § 1332(d)(2).
NOTES
[1] In all other respects, the class definitions for the subclasses in this case are identical to the definitions for the subclasses in Advance America. See Advance America, 549 F.3d at 934-35.
[2] There is a dispute over whether Carolina Payday's principal place of business is in Georgia. Dennison contends that Carolina Payday's principal place of business is in South Carolina. The district court refrained from deciding the issue, noting that "[s]ince the court rules that dual citizenship does not on its own establish minimal diversity, Plaintiff's contention that South Carolina is also Defendant's principal place of business is irrelevant, and the court need not and does not decide the issue." Dennison v. Carolina Payday Loans, Inc., No. 2:07-cv-04016-PMD, slip op. at 6 n. 2 (D.S.C. May 21, 2008). We too refrain from deciding the State of Carolina Payday's principal place of business because the decision is not necessary to reach our holding that Carolina Payday has not demonstrated minimal diversity.
[3] Carolina Payday's affidavits in this case are no more persuasive than those submitted in Advance America. There, Advance America proffered exhibits to its affidavit identifying the customers whose residence had changed. Here, Carolina Payday does not identify a single customer it alleges changed citizenship. Moreover, in a second affidavit, Carolina Payday's affiant merely alleges that "[n]umerous customers .. . now reside in states outside of South Carolina." (J.A. 39) (emphasis added). In short, Carolina Payday's affidavits are conclusory and fail to provide any basis for the assertion that any of its customers changed citizenship. Such conclusory assertions need not be accorded any evidentiary weight. See McHone v. Polk, 392 F.3d 691, 703-04 (4th Cir.2004). | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1027381/ | 550 F.3d 353 (2008)
Lisa CHAMPION, Plaintiff-Appellant,
v.
BLACK & DECKER (U.S.) INCORPORATED; The Black & Decker Disability Plan, Defendants-Appellees, and
The Black & Decker Life Insurance Plan, Defendant.
No. 07-1991.
United States Court of Appeals, Fourth Circuit.
Argued: September 23, 2008.
Decided: December 19, 2008.
*355 ARGUED: Nekki Shutt, Callison, Tighe & Robin-Son, L.L.C., Columbia, South Carolina, for Appellant. David L. Woodard, Poyner & Spruill, Raleigh, North Carolina, for Appellees. ON BRIEF: Susanna K. Gibbons, Poyner & Spruill, Raleigh, North Carolina, for Appellees.
Before NIEMEYER, Circuit Judge, HAMILTON, Senior Circuit Judge, and T.S. ELLIS, III, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Senior Judge HAMILTON and Senior Judge ELLIS joined.
OPINION
NIEMEYER, Circuit Judge:
In this appeal, we review an ERISA plan's discretionary determination denying disability benefits to an employee where the plan's administrator is alleged to have operated under a conflict of interest. Before the Supreme Court's recent decision in Metropolitan Life Insurance Co. v. Glenn, ___ U.S. ___, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), we would have either applied a modified abuse-of-discretion standard of review to neutralize any effect of the conflict of interest, see, e.g., Stanford v. Cont'l Cas. Co., 514 F.3d 354, 357 (4th Cir.2008), or we would have concluded that no conflict existed at all, see Colucci v. Agfa Corp. Severance Pay Plan, 431 F.3d 170, 179-80 (4th Cir.2005). But now, under Glenn, we must take a new approach.
Applying Glenn, we conclude that in this case a conflict of interest did indeed exist; that we nonetheless review the plan's determination under the familiar abuse-of-discretion standard; and that we consider the conflict only as a factor, among several, in determining whether the plan's determination *356 was reasonable. Conducting our review in this manner, we find that the plan in this case did not abuse its discretion, and accordingly we affirm.
I
Lisa Champion, a former employee of Black & Decker (U.S.) Inc. ("Black & Decker"), commenced this action under the Employee Retirement Income Security Act of 1974 ("ERISA") against the Black & Decker Disability Plan ("the Plan") and Black & Decker as the sponsor and administrator of the Plan. She challenges the Plan's termination of her disability benefits after the Plan paid her benefits for a period of 30 months.
When Champion began working for Black & Decker in 1995, she came under the Plan, which Black & Decker both funds and administers. As authorized by the Plan, Black & Decker employed CIGNA Integrated Care as its claims administrator, but Black & Decker retained ultimate authority to make determinations of whether to pay disability benefits. The Plan grants to the "Plan Manager," a Black & Decker executive, specific powers and duties, including the responsibility "to decide all questions concerning the Plan and the eligibility of any person to participate in the Plan or to receive benefits." It requires that the Plan Manager base his determinations on "suitable medical evidence and a review of the Participant's prior employment history that the Plan Manager deems satisfactory in its sole and absolute discretion."
In the proceedings before the district court, the parties stipulated (1) that the Plan gives discretion to the Plan Manager to make determinations, such as whether Champion is to receive the disability benefits claimed in this case, and (2) that judicial review of any determination is to be conducted under the abuse-of-discretion standard. The parties reserved, however, the right to argue whether the standard must be adjusted for a conflict of interest.
Substantively, the Plan provides for the payment of disability benefits, using two different definitions of disability, depending on how long the employee has been ill or injured. One definition applies to benefits payable up to 30 months, and another applies to benefits payable after 30 months. During the first 30 months, an employee is considered disabled and eligible for benefits if the illness or injury results in the employee's "complete inability... to engage in his regular occupation with the Employer." (Emphasis added). After 30 months, the employee is considered disabled and eligible for benefits only if the employee is completely unable "to engage in any gainful occupation or employment with any employer for which the Employee is ... reasonably qualified by education, experience or training." (Emphasis added). Additionally, after 30 months, the Plan terminates disability benefits if the disability was "initially attributable to a Mental Health ... Disability" or later "substantiated on a Mental Health... Disability Diagnosis."
In 1999, Champion was diagnosed with a "complex partial seizure disorder," based in part on "epileptiform activity in the left temporal region." Her actual epileptic seizures were mostly of the petite mal or "absence" variety and were thereafter controlled with medication. Treating physicians noticed that Champion also reported seizure-like events that were not epileptic seizures. These events were sometimes characterized as panic attacks and sometimes as "pseudoseizures." Pseudoseizures are a recognized medical diagnosis with symptoms closely resembling epilepsy, causing physicians often to misdiagnose one as the other. Champion was also diagnosed with various emotional and psychiatric *357 conditions including anxiety, depression, panic attacks, and post-traumatic stress disorder.
In January 2002, Champion had a seizure at work that required emergency room care. Thereafter, she never returned to work at Black & Decker. She did, however, apply for short-term disability benefits under the Plan. CIGNA Integrated Care assessed Champion's condition and denied her application. Champion appealed to the Plan's Appeals Committee, composed entirely of Black & Decker employees, and the Committee reversed CIGNA's denial and awarded benefits, which continued for 30 months.
After 30 months, CIGNA terminated benefits, concluding that Champion's disability resulted from mental illness and therefore, under the Plan, no benefits were payable after 30 months. On Champion's appeal to the Plan's Appeals Committee, the Committee affirmed CIGNA's decision. Champion then retained counsel, who requested a second appeal. The Appeals Committee granted counsel's request and considered additional evidence submitted by Champion, but again denied further benefits.
Champion commenced this action under § 502 of ERISA, 29 U.S.C. § 1132, seeking disability benefits beyond the first 30 months. The district court initially found that the Plan had abused its discretion by failing to determine whether Champion's disabilities actually fell within the Plan's explicit definition of "Mental Health Disability." The Plan defined a mental health (or substance abuse) disability as one "with a primary diagnosis in the range of 290 to 319 under the International Classification of Diseases, 9th Revision, Clinical Modification (ICD-9-CM) promulgated by the World Health Organization." But, because the district court was also unable to find evidence sufficient to grant Champion benefits outright, it ordered a remand to the Plan (1) to determine the proper ICD-9-CM classification of Champion's disability, and (2) to give Champion the opportunity to submit additional evidence.
On remand, the Plan's two consulting physicians reviewed the record, including the records provided by Champion's treating physicians, and concluded that Champion's pseudoseizures were properly classified as 300.11 under the ICD-9-CM, thus falling within the Plan's 290 to 319 range for a mental health disability. The physicians also concluded that when they considered only Champion's non-mental-health conditions, she would be able to work because her physical seizures were infrequent and manageable with medication. Champion also submitted additional evidence, including a physician's opinion that she was indeed totally disabled by her epilepsy and pseudoseizures. With this evidence before it, the Plan determined that Champion's pseudoseizures had a mental health diagnosis and therefore her disability was substantiated on a mental health disability. It reaffirmed its termination of Champion's benefits after the initial 30-month period.
The district court again reviewed the Plan's determination in light of the augmented record and concluded that the Plan had not abused its discretion in denying further benefits. Champion appealed and now contends that (1) the Plan operated under a conflict of interest and therefore judicial review should be modified to give the Plan less deference; (2) in any event, the Plan's determination was unreasonable; and (3) the district court abused its discretion in ordering a remand to the Plan to allow for augmentation of the record.
II
After the district court decided this case and Champion appealed, the Supreme *358 Court decided Metropolitan Life Insurance Co. v. Glenn, ___ U.S. ___, 128 S.Ct. 2343, 171 L.Ed.2d 299 (2008), which clarified when a conflict of interest exists and how a conflict is to be taken into account. Glenn altered several aspects of judicial review of ERISA plan determinations in the Fourth Circuit.
In Glenn, the Court began by restating the foundational principles of judicial review of ERISA plan determinations. First, it pointed out, a reviewing court must be guided by principles of trust law, taking a plan administrator's determination as "a fiduciary act (i.e., an act in which the administrator owes a special duty of loyalty to the plan beneficiaries)." 128 S.Ct. at 2347. Second, courts must "review a denial of plan benefits under a de novo standard unless the plan provides to the contrary." Id. at 2348 (internal quotation marks and citation omitted). Third, when the plan grants the administrator "discretionary authority to determine eligibility for benefits, ... a deferential standard of review is appropriate." Id. (emphasis and citations omitted). And fourth, "[i]f a benefit plan gives discretion to an administrator or fiduciary who is operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion." Id. (internal quotation marks, citations, and emphasis omitted).
Focusing particularly on the fourth principle, the Glenn Court held that when the plan administrator serves in the dual role of evaluating claims for benefits and paying the claims, the dual role itself creates a conflict of interest. 128 S.Ct. at 2346, 2348. The Court found in the case before it that because an insurance company served as both administrator and insurer of the planas administrator it had discretionary authority to determine claims and as insurer it paid the claimsthe insurance company had a conflict of interest. Id. at 2346. But it also noted that the same conflict is created when an employer serves in a similarly dual role. Id. at 2348.
The Court held, however, that the presence of a conflict of interest did not change the standard of review from the deferential review, normally applied in the review of discretionary decisions, to a de novo review, or some other hybrid standard. 128 S.Ct. at 2350. Indeed the Court stated that the conflict of interest should not otherwise lead to "special burden-of-proof rules, or other special procedural or evidentiary rules, focused narrowly upon the evaluator/payor conflict." Id. at 2351. Rather, it held that when reviewing an ERISA plan administrator's discretionary determination, a court must review the determination for abuse of discretion and, in doing so, take the conflict of interest into account only as "one factor among many" that is relevant in deciding whether the administrator abused its discretion. Id. The process that the Court envisioned is similar to that followed by courts generally in applying any multiple-factor test to review for reasonableness. As the Court said:
In such instances, any one factor will act as a tiebreaker when the other factors are closely balanced, the degree of closeness necessary depending upon the tiebreaking factor's inherent or case-specific importance. The conflict of interest at issue here, for example, should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration.
Id.
The principles announced in Glenn alter some of our court's earlier approaches to *359 reviewing discretionary determinations made by ERISA administrators allegedly operating under a conflict of interest. For example, before Glenn, when we found a conflict of interest, we applied a "modified" abuse-of-discretion standard that reduced deference to the administrator to the degree necessary to neutralize any untoward influence resulting from the conflict of interest. See, e.g., Stanford, 514 F.3d at 357. And before Glenn we defined a conflict of interest more narrowly. See Colucci, 431 F.3d at 179-80.
As it now stands after Glenn, a conflict of interest is readily determinable by the dual role of an administrator or other fiduciary, and courts are to apply simply the abuse-of-discretion standard for reviewing discretionary determinations by that administrator, even if the administrator operated under a conflict of interest. Under that familiar standard, a discretionary determination will be upheld if reasonable. See Guthrie v. Nat'l Rural Elec. Coop. Assoc. Long-Term Disability Plan, 509 F.3d 644, 650 (4th Cir.2007). And any conflict of interest is considered as one factor, among many, in determining the reasonableness of the discretionary determination. In Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335 (4th Cir.2000), we identified eight nonexclusive factors that a court may consider, including a conflict of interest:
(1) the language of the plan; (2) the purposes and goals of the plan; (3) the adequacy of the materials considered to make the decision and the degree to which they support it; (4) whether the fiduciary's interpretation was consistent with other provisions in the plan and with earlier interpretations of the plan; (5) whether the decisionmaking process was reasoned and principled; (6) whether the decision was consistent with the procedural and substantive requirements of ERISA; (7) any external standard relevant to the exercise of discretion; and (8) the fiduciary's motives and any conflict of interest it may have.
Id. at 342-43 (footnote omitted).
Accordingly, we review the Plan's determination in this case for abuse of discretion, taking into account any conflict of interest as one of the factors considered in determining reasonableness.
III
Turning to Champion's appeal, she devotes the first half of her brief to arguing that a conflict of interest exists in this case because Black & Decker "had a significant financial interest in the decision to terminate disability benefits to Champion." She argues accordingly that under our pre-Glenn decisions, judicial review of the Plan's determination should be under a "modified abuse of discretion standard." See, e.g., Stanford, 514 F.3d at 357. She contends that the conflict of interest was substantial and was manifested by the Plan's several procedural deficiencies in determining her claim.
In view of Glenn, decided after the district court had ruled and this appeal had been taken, we conclude that the Plan did indeed operate under a conflict of interest. The Plan sponsor, Black & Decker, served in the dual role of both evaluating and paying Champion's claims. This dual role alone fulfills the requirements for finding a conflict under Glenn. See 128 S.Ct. at 2346, 2348. But the consequence of this finding is not to modify the standard of review, as urged by Champion, but rather to consider the conflict as but one among many factors in determining the reasonableness of the Plan's discretionary determination. We do this by considering the relevant factors, as identified in Booth. See 201 F.3d at 342-43.
*360 IV
Acting under the discretion conferred by the Plan's terms, the Plan terminated payment of disability benefits to Champion after 30 months, concluding in its final affirmation of the decision (1) that "her physical conditionher seizure disorder did not render her unable to engage in a gainful occupation," as her physical seizures were "infrequent" and often followed her failure to comply with her medication regimen; (2) that she also suffers from a range of mental health conditions, including pseudoseizures, for which the proper ICD-9-CM code was 300.11, "which is within the range of the definition of Mental Health in the Plan"; and (3) that while Champion's pseudoseizures and depression "may have rendered her unable to engage in a gainful occupation after the initial 30 month period of Disability," she was not entitled to benefits under the Plan after the 30-month period because such benefits for a disability "substantiated by a Mental Health condition," were limited to 30 months. Thus, the validity of the Plan's determination to deny Champion further benefits turns on whether the 300.11 classification was proper.
The district court concluded that there was substantial evidence to justify the Plan's characterization of Champion's pseudoseizures as a mental health disability, i.e., a condition falling within the ICD-9-CM code range of 290 to 319, and that Champion could not demonstrate that she was unable to engage in "any gainful occupation" absent consideration of her pseudoseizures and other mental health problems. While the court considered the opinions of various doctors that were submitted to the Plan, it found Dr. Ebeling's opinion most enlightening on the matter. As the court stated:
Dr. Ebeling provided a full and persuasive explanation of his reasons for characterizing Champion's pseudoseizures as psychiatric in origin. Most critically, he referred to Dr. Gettlefinger's contemporaneous characterization of the cause of the pseudoseizures as being related to other mental health causes (anxiety and depression). He also: noted Champion's own statements which suggest her pseudoseizures were of psychological origin; supported his opinion as to the nature of the pseudoseizures with a specific reference to a medical text; and explained how his characterization of the pseudoseizures fit with Champion's significant psychiatric difficulties.
In light of Dr. Ebeling's opinion and the other evidence in the record, the court concluded that "it was not unreasonable for the Plan to conclude that Champion's pseudoseizures should be characterized as psychiatric in origin.... Given this conclusion, it follows that the Plan acted within its discretion in determining that Champion's pseudoseizures came within the Plan's definition of a mental health condition," thus making it reasonable for the Plan to find that "Champion was not disabled by any non-mental health condition."
On Champion's appeal, we review the district court's decision de novo, employing the same standards governing district court review of a plan administrator's discretionary decision. See Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 321 (4th Cir.2008).
There is no dispute that if Champion's pseudoseizures fall within the ICD-9-CM code range of 290 to 319, they are treated as a mental health disability that affects whether Plan benefits continue after 30 months. But the parties vigorously dispute whether her pseudoseizures fall within the 290 to 319 range. And the record on this issue is ambiguous.
During the extensive diagnostic monitoring of Champion performed at the Medical *361 College of Georgia, physicians observed seizures both psychogenic and physical in origin. The professionals treating her over the years used a wide range of ICD-9-CM diagnostic codes. Some fell between 290 and 319, and some did not, while many of the professionals did not assign ICD-9-CM codes at all. Champion's primary neurologist wrote in 2004, "she continues to have spells, the dilemma is which of them are epilepsy and which of them are pseudoseizures related to anxiety and depression." (Emphasis added).
The Plan's consulting physician Dr. Ebeling analyzed Champion's medical record, which included the notes of her treating physicians, and he found that code 780.39, which Champion contends should have applied to her pseudoseizures, was inappropriate as an actual diagnosis. He explained that the 780 to 799 code range refers to "symptoms, signs and ill-defined conditions," and the ICD-9-CM diagnosis guide submitted by Champion confirms that this is, indeed, the heading for the entire 780 to 799 range. Dr. Ebeling found her treating physicians' notations and her overall medical history most consistent with a 300.11 diagnosis for her pseudoseizures.
Champion did produce extensive evidence that her seizures and pseudoseizures were attributable to physical causes, including past physical abuse. But that evidence did not advance her argument that the pseudoseizures themselves should not fall within the code range of 290 to 319. The Plan's definition of mental health disability unambiguously states that the 290 to 319 range governs "regardless of underlying cause for such disorder, whether such underlying cause is mental health, substance abuse, organic, physical or medical in origin." (Emphasis added).
In view of this record, it was reasonable for the Plan to have concluded that her pseudoseizures fell within the Plan's mental health diagnosis definition. But this still leaves the question of whether the Plan properly terminated benefits after 30 months on the ground that Champion's inability to work was "substantiated on" a mental health disability diagnosis.
Champion produced no evidence showing or tending to show that she could substantiate her disability claim on just her epilepsy. She produced persuasive evidence that she is disabled by her pseudoseizures and epilepsy. But because the Plan reasonably concluded that her pseudoseizures fell within the definition of mental health disability, her evidence does not support a claim that her epilepsy alone rendered her unable to work within the Plan's definition of disability.
In contrast, the Plan provided substantial reasons to believe that Champion would not be disabled without her mental health disabilities. Dr. Ebeling concluded from the record that Champion's physical seizures were "relatively infrequent, not intractable, and would not preclude her from any occupation which does not require her to operate machinery or work at unprotected heights." In accepting this conclusion, the Plan acted reasonably, especially when Champion's own correspondence with the Plan supports the conclusion.
Taking into consideration the first seven Booth factors, to the extent they are relevant, we find no evidence to support Champion's claim that the Plan abused its discretion. The Plan applied the language defining benefits, as well as the limitations on those benefits; it considered the materials supplied by the professionals who treated Champion; it fully cured any initial procedural irregularities; and it engaged in a decisionmaking process that was ultimately reasoned and principled.
*362 This brings us to the eighth and final Booth factorwhether the Plan's determination is rendered unreasonable by the effects of its conflict of interest. Although the district court did not address the effect of any alleged conflict of interest, it did find that the Plan did not act in a biased manner. It noted that even though the Plan initially made procedural errors requiring a remand, "[t]he errors [did] not. . . appear to have been based on any improper intent." The court found it significant that
Plaintiff's initial claim was denied by a [third party administrator] which lacked a direct financial interest in the matter, and that the initial denial was reversed by the Plan based on only minimal submissions by Plaintiff. It is also significant that the Plan allowed Plaintiff an additional untimely appeal, after her appeals were otherwise concluded and upon the appearance of counsel. During the final appeal, the Plan presented the issue to two independent experts whose advice the Plan followed in its ultimate denial decision. While the court has found errors in the process and in Plan interpretation, it finds no evidence of bad faith or improper intent.
When we heed Glenn's instruction on considering the conflict factor, we can find no evidence raising a concern that would increase the weight of the conflict. See 128 S.Ct. at 2351. Indeed, when the Plan overruled the initial denial of short-term disability benefits by CIGNA, the third-party administrator, it manifested an approach demonstrating an unbiased interest that favored Champion, making the conflict factor "less important (perhaps to the vanishing point)." Id. In the same vein, the Plan also voluntarily granted Champion a second appeal after she hired a lawyer, allowing her to present further matters. This second appeal, which was not required by the Plan language, increased the likelihood of an accurate final decision, thereby also reducing the conflict factor "to the vanishing point." Id. Champion provides no contrary evidence tending to show that the Plan's dual role "affected the benefits decision." Id.
Thus, the evidence does not support giving such weight to the conflict that it "act[s] as a tiebreaker when the other factors are closely balanced." Glenn, 128 S.Ct. at 2351. Indeed, the factors are not closely balanced here, and the conflict factor in particular approaches "the vanishing point." Id. The Plan provided a well-reasoned justification for its decision denying further benefits, based on the record and the Plan language. Utilizing the combination-of-factors method employed by Booth and endorsed in Glenn, we conclude that the Plan did not abuse its discretion in terminating Champion's disability benefits after 30 months.
V
Champion also contends that the district court erred by ordering a remand to the Plan to determine the appropriate ICD-9-CM code for her pseudoseizures, rather than simply ordering that the Plan continue her benefits after the 30-month period.
We agree that "remand should be used sparingly." Elliott v. Sara Lee Corp., 190 F.3d 601, 609 (4th Cir.1999) (internal quotation marks and citation omitted). But we review a district court's decision whether to remand for abuse of discretion. Sheppard & Enoch Pratt Hosp., Inc. v. Travelers Ins. Co., 32 F.3d 120, 125 (4th Cir.1994). In conducting such a review, we recognize that district courts require flexibility to augment records, as "[s]ome ERISA cases involve complex medical issues crucial to the interpretation *363 and application of plan terms." Quesinberry v. Life Ins. Co. of North America, 987 F.2d 1017, 1025 (4th Cir. 1993).
The district court here faced just such an issue in ascertaining the appropriate ICD-9-CM classification code for Champion's pseudoseizures. The court also recognized that if the pseudoseizures were a mental health problem, then the record justifying benefits beyond 30 months was sparse and inadequate. Accordingly, it ordered the remand to permit the Plan to make the proper classification and to permit Champion to supplement the record. We find that in the circumstances of this case, the district court acted within its discretion in remanding to the Plan, and therefore we reject Champion's argument.
The judgment of the district court is
AFFIRMED. | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598427/ | 526 N.W.2d 743 (1995)
Barbara A. FLYNN, Plaintiff and Appellant,
v.
James W. LOCKHART, Defendant and Appellee.
No. 18736.
Supreme Court of South Dakota.
Submitted on Briefs November 29, 1994.
Decided January 25, 1995.
*744 Lonald L. Gellhaus of Williams, Gellhaus & Gerdes, P.C., Aberdeen, and Gary K. Wood of Collins & Ingebritson, P.A., Minneapolis, MN, for plaintiff and appellant.
Robert L. Lewis of Costello, Porter, Hill, Heisterkamp & Bushnell, Rapid City, for defendant and appellee.
KONENKAMP, Justice.
An injured party appeals summary judgment upholding a joint tortfeasor release she earlier signed in a settlement with a separate defendant. We affirm.
FACTS
James Lockhart invited Barbara Flynn to ride in a horse-drawn buggy owned by Robert Mines. After Lockhart and Mines hitched the rig, Lockhart handled the reins. Apparently the rig was fastened improperly: the buggy hit the horse causing it to kick and buck, throwing off all the passengers, including Flynn and Lockhart.
Flynn and Lockhart together retained the same attorney for their individual claims against Mines for injuries. When Lockhart's suit settled, the attorney negotiated a settlement for Flynn with Mines' insurer, DeSmet Farm Mutual Insurance Company (DeSmet). In a letter dated December 7, 1990, the attorney advised Flynn that he received a check from DeSmet in the amount she authorized for settlement:
the recovery was negotiated and approved by you on the basis that we would not be suing Jim Lockhart or his insurance company for any damages, and that Mr. Mine's insurance carrier would not be seeking contribution from Jim Lockhart or his insurance carrier....
You had further been advised that in the event that you chose to proceed against Jim Lockhart or his insurance carrier, that you would have to retain another attorney, as our office had represented Jim Lockhart in his claim against Robert Mines, and for our office to represent you against Jim Lockhart would be a conflict of interest for us. We had advised you that we would help you find other counsel if you chose to proceed against Mr. Lockhart.
Being aware of the previously stated admonitions, you advised us to proceed to settle as above-stated.
On December 10, 1990 Flynn signed a release absolving Mines and DeSmet of all claims arising from the accident in exchange for $33,000. The release contained the following clause barring her right of action against joint tortfeasors:
There are hereby discharged and released not only the persons or corporations specifically *745 named herein as discharged and released, but also in like manner and to the same extent all other persons and corporations whatsoever such as are classed as joint tortfeasors under [SDCL 15-8-11 through 15-8-22], it being intended hereby to completely bar any right of action against any of such joint tortfeasors whether or not named herein[.]
Flynn signed immediately below the following language in the release:
This Release contains the ENTIRE AGREEMENT between the parties hereto, and the terms of this Release are contractual and not a mere recital.
I further state that I have carefully read the foregoing Release, know the contents thereof, and sign the same as my own free act.
CAUTION: This is a Release. READ IT before signing. [Original emphasis.]
Seven months later, represented by a new attorney who had not been involved in the previous negotiations, Flynn brought suit against Lockhart for her injuries in the buggy accident.
In his motion for summary judgment Lockhart asserted that the release discharged him from all claims Flynn may have had against him as a result of the accident. Although she acknowledges knowingly signing the release, Flynn maintains that her former attorney did not warn her that an action against Lockhart would be forever barred, even if she hired a new attorney to prosecute the suit. She denies ever intending to surrender her claims against Lockhart and avers that Lockhart should be estopped from interposing the release as a defense. She also sued her former attorney in a separate action not at issue here. The trial court granted Lockhart's motion for summary judgment. Flynn appeals.
ANALYSIS
In reviewing a grant of summary judgment, we determine if the moving party demonstrated the absence of any genuine issue of material fact and established entitlement to a judgment on the merits as a matter of law. Paradigm Hotel v. Sioux Falls Hotel, 511 N.W.2d 567 (S.D.1994); Werner v. Norwest Bank, 499 N.W.2d 138, 140 (S.D.1993); Wilson v. Great Northern. Ry. Co., 83 S.D. 207, 157 N.W.2d 19, 21 (1968). The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. Id.; Garrett v. BankWest, Inc., 459 N.W.2d 833 (S.D.1990); Klatt v. Continental Ins. Co., 409 N.W.2d 366 (S.D.1987).
Flynn enumerates multiple reasons why the release she signed should not bar her suit against Lockhart: (1) Lockhart failed to sustain his burden of proof; (2) her attorney misled her; (3) she did not intend to release Lockhart; and (4) the release should be set aside based on mutual mistake. Notably, she neither contests the validity of the release as it applies to Mines and DeSmet nor contends that any party other than her attorney misled her.
Lockhart clearly fits within the category of a joint tortfeasor. Joint tortfeasors are defined in SDCL 15-8-11:
two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.
Thus, unless it is invalid or can be set aside, the release unquestionably bars Flynn's claims against Lockhart. Cleland v. U.S., 874 F.2d 517 (8th Cir.1989).
1. Lockhart's Burden in Proving Release
Flynn ascribes a list of burdens to Lockhart which she alleges he failed to carry: consideration, absence of confusion, absence of mistake, absence of ambiguity, absence of misrepresentation, and absence of fraud. Flynn submits no authority to support her argument that Lockhart has the burden to prove the absence of these things. We disregard legal arguments unsupported by citation to authority. Corbly v. Matheson, 335 N.W.2d 347 (S.D.1983).
Lockhart's burden was to plead and prove the existence of a valid release. SDCL 15-6-8(c). Lockhart need not prove separate consideration to avail himself of the release; *746 Mines and DeSmet provided the required consideration. Compelling policy reasons support releases under the Uniform Contribution Among Joint Tortfeasors Act (SDCL 15-8-11 to 15-8-22):
The defendant who originally procures the release gains nothing if the plaintiff can sue other joint or concurrent tortfeasors. In such a case, the original defendant is left open to claims for contribution and/or indemnity and may wind up having to litigate the case anyway.
Douglas v. United States Tobacco Co., 670 F.2d 791, 794 (8th Cir.1982).
2. Attorney Misrepresentation
Even though Flynn freely signed the release, she claims her attorney failed to explain all its consequences, noting that she never would have signed it had she known that Lockhart would be discharged. In Johnson v. Rapid City Softball Ass'n, 514 N.W.2d 693, 697 (S.D.1994), this Court stated, "A release is not fairly made and is invalid if the nature of the instrument was misrepresented or there was other fraudulent or overreaching conduct." Yet to invalidate a release such wrongful conduct must occur between opposing parties, not between attorneys and their clients. "As a general principle, one who accepts a written contract is conclusively presumed to know its contents and to assent to them, in the absence of fraud, misrepresentation, or other wrongful act by another contracting party." 17A AM.JUR.2D CONTRACTS § 224 (1991) (emphasis added). See Johnson v. Allis Chalmers Corp., 162 Wis.2d 261, 470 N.W.2d 859, 868 (1991). To allow parties, who freely sign releases of liability, to later disavow the aftermath because they claim their own attorneys misled them, would undermine the orderly resolution of personal injury claims. Cf. Link v. Wabash Railroad Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). Her attorney's alleged misrepresentation cannot negate the import of Flynn's release.
3. Flynn's Intent in Signing the Release
Flynn alleges she unintentionally released Lockhart from liability claiming that her attorney led her to believe that the release would not preclude a lawsuit against Lockhart, provided she retained different counsel. She was unaware that the term "joint tortfeasor" applied to Lockhart. The release is unambiguous. Krambeck v. Sunshine Ins. Co., 505 N.W.2d 131, 133 (S.D.1993); Enchanted World Doll Museum v. Buskohl, 398 N.W.2d 149, 151 (S.D.1986). So whatever her attorney may have led her to believe about the release, its terms and not her belief, control. Flynn, therefore, cannot offer her attorney's alleged remarks to her about the release to vary its terms. SDCL 53-8-5; Carr v. Benike, Inc., 365 N.W.2d 4 (S.D.1985); Ramsdell Constr. v. Aetna Cas. Ins. Co., 921 F.2d 741 (8th Cir.1990).
Flynn cites authority for the precept that if an injured party has not received full satisfaction, a release of one tortfeasor discharges no other tortfeasors. Luxenburg v. Can-Tex Industries, 257 N.W.2d 804, 807 (Minn.1977). South Dakota codified this rule in SDCL 15-8-17, but it will not apply when a party signs a general release which specifically exonerates all joint tortfeasors. Cf. Bixler by Bixler v. J.C. Penney Co., Inc., 376 N.W.2d 209 (Minn.1985). The unambiguous language of the release Flynn signed left no suggestion that it was intended only as a partial release.
4. Mutual Mistake
Flynn asserts that she signed the release under a mutual mistake of fact about the full nature and extent of her injuries. She states that she did not know "that the development of hives and rashes arising out of her accident would be permanent" and "that she still had wood and stone imbedded in her skin that would cause her additional pain and suffering." South Dakota has long adhered to the rule that a general release, under certain circumstances, may be voided on the ground of mutual mistake. Nilsson v. Krueger, 69 S.D. 312, 9 N.W.2d 783, 786 (1943); Petersen v. Kemper, 70 S.D. 427, 18 N.W.2d 294 (1945).
Lockhart responds that Flynn's request to set aside the release fails because (1) she has not sought to rescind it; and (2) the release she signed covered "all known and unknown personal injuries and consequences" resulting from the accident. This Court has specifically held, however, that these are not conclusive impediments to voiding a release *747 on grounds of mutual mistake. Boman v. Johnson, 83 S.D. 265, 158 N.W.2d 528 (1968).
Boman permitted an injured party to set aside a release without rescinding because of a "grossly inadequate" settlement made at a time when the seriousness of the injuries were unknown. Id. 158 N.W.2d at 530. Unlike Boman, though, Flynn seeks only to set aside the release as it pertains to one tortfeasor and not the other. Consequently, she professes a quite illogical position: when she signed the release she was mistaken about the extent of her injuries solely with respect to Lockhart. She was injured in one incident, caused, she alleges, by both Mines and Lockhart. Therefore, her knowledge about her injuries would be the same regardless of with whom she settled. Moreover, Flynn cites no authority for setting aside on mutual mistake a joint tortfeasor release regarding one tortfeasor, but leaving it intact for another. Potential claims for indemnity and contribution make such an arrangement impossible, and unfair, considering that not being parties to this action, Mines and DeSmet could not forestall reopening their exposure to liability.
Affirmed.
MILLER, C.J., SABERS and AMUNDSON, JJ., and WUEST, Retired Justice, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598439/ | 207 Mich. App. 364 (1994)
526 N.W.2d 5
UNIVERSAL GYM EQUIPMENT, INC.
v.
VIC TANNY INTERNATIONAL, INC
Docket No. 157313.
Michigan Court of Appeals.
Submitted May 18, 1994, at Detroit.
Decided November 7, 1994, at 9:10 A.M.
Barbier & Barbier, P.C. (by Ralph W. Barbier, Jr.), for the plaintiff.
Petersmarck, Callahan, Bauer & Maxwell, P.C. (by Richard W. West), for the defendants.
*366 Before: MICHAEL J. KELLY, P.J., and CORRIGAN and C.D. CORWIN,[*] JJ.
MICHAEL J. KELLY, P.J.
Plaintiff appeals as of right a circuit court order granting defendants' motion for summary disposition under MCR 2.116(C)(7) and (8) and dismissing plaintiff's complaint for contribution and indemnification following settlement of an underlying suit against plaintiff by a third party. We affirm in part, reverse in part, and remand.
I
On March 13, 1990, Catherine Ostroski filed suit against plaintiff Universal Gym Equipment, Inc., after she was injured at a Vic Tanny health club while using an exercise machine manufactured by Universal. Ostroski alleged that Universal was at fault. Because of a release provision in her health club membership contract, Ostroski did not name Vic Tanny as a defendant. However, Vic Tanny was aware of the proceedings and was requested to participate in settlement negotiations. On November 4, 1991, Ostroski reached a settlement agreement with Universal for $225,000.
On July 1, 1991, Universal initiated separate proceedings in a complaint against Vic Tanny alleging that Vic Tanny was liable for failure to maintain safe premises and had an obligation to indemnify against or to contribute toward any settlement between Universal and Ostroski. Universal filed an amended complaint after settlement with Ostroski. On July 6, 1992, Vic Tanny filed a motion for summary disposition, which the circuit court granted on September 15, 1992, on the basis that Vic Tanny could not be liable for contribution *367 or indemnification where it had a valid defense under the release provision.
II
Universal first argues that the circuit court erred in granting summary disposition of its contribution claim because the release provision in Ostroski's membership contract was unenforceable as against public policy. Alternatively, Universal contends that any defense provided by the release clause in an action between Vic Tanny and Ostroski was insufficient to bar recovery by Universal in a separate action for contribution against Vic Tanny.
A
With respect to the first argument, Universal now concedes that the release clause is enforceable in cases of ordinary negligence in light of this Court's recent decision in Skotak v Vic Tanny Int'l, Inc, 203 Mich App 616; 513 NW2d 428 (1994). There, the Court upheld the validity of an identical clause, recognizing that "[i]t is not contrary to this state's public policy for a party to contract against liability for damages caused by its own ordinary negligence." Id. at 617-618. The Court also found that the release provision "clearly expresses [Vic Tanny's] intention to disclaim liability for all negligence, including its own." Id. at 619.
The Skotak Court did not address the enforceability of the release clause with respect to a claim of gross negligence. Universal argues that a preinjury release provision absolving a party from liability for grossly negligent conduct violates Michigan public policy. We agree. See Klann v Hess Cartage Co, 50 Mich App 703, 706; 214 NW2d 63 *368 (1973); Island Creek Coal Co v Lake Shore, Inc, 692 F Supp 629, 633 (WD Va, 1988) (applying Michigan law). See also Sommer v Federal Signal Corp, 79 NY2d 540, 554; 583 NYS2d 957; 593 NE2d 1365 (1992). Universal claims that Vic Tanny was grossly negligent in failing to maintain the exercise equipment and to train its employees and members regarding proper use of the equipment. Although Universal's original complaint did not sound in gross negligence, it filed a motion for a second amended complaint that did include allegations of gross negligence. The trial court denied the motion, but Vic Tanny's response to the motion and the order denying the motion are missing from the record. Because motions to amend a complaint are accorded great liberality, see MCR 2.118, and because the grounds for the trial court's denial of the motion in this case remain a mystery, we reverse the order of denial and remand for a new hearing on the motion to file a second amended complaint. If the trial court grants the motion it shall allow further proceedings on the claim of gross negligence. If it denies the motion it shall specify the reasons and grounds for the denial.
B
The issue still remaining is whether Vic Tanny may invoke the release provision as a defense against Universal's contribution claim if its conduct amounted to ordinary negligence.
Because this is an issue of first impression in Michigan, plaintiff relies in part on the opinion of the New York Court of Appeals in Sommer, supra, which found a similar release clause wholly unenforceable against a third-party contribution claimant. We consider the analysis in Sommer inapposite *369 because we are constrained by the Michigan contribution statute, MCL 600.2925a et seq.; MSA 27A.2925(1) et seq., to reach a different result.
The Sommer court addressed the enforceability of an exculpatory clause in a contract between a fire alarm monitoring service and its customer in a contribution action against the monitoring service by third parties. Although the Court found the release clause violative of public policy only in cases of gross negligence, it went on to hold that the provision did not provide a defense to the contribution claim even in cases of ordinary negligence:
In contribution cases, we have drawn a distinction between the absence of liability to an injured party, and the absence of a duty. Often, the absence of direct liability to plaintiff is merely the result of a special defense, such as the Statute of Limitations or the exclusivity of workers' compensation, and not because defendant was free of fault. In such cases, we have held that codefendants may seek contribution from the joint wrongdoer, despite the wrongdoer's own defense to plaintiff's claim. This principle is fully in accord with the rationale of Dole [v Dow, 30 NY2d 143; 331 NYS2d 382; 282 NE2d 288 (1972)], which promotes equitable distribution of the loss in proportion to actual fault. [79 NY2d at 558 (Citations omitted; emphasis in original.]
See also Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970); Caldwell v Fox, 394 Mich 401, 419-420; 231 NW2d 46 (1975) (noting that Moyses "returned the doctrine of contribution among non-intentional wrongdoers to the original equitable rules").
The Sommer court further explained that the defendant's exculpatory provision in that case was "akin to a special defense that does not affect the *370 codefendants' ability to obtain contribution." 79 NY2d 558.
Although [the defendant's] direct liability to [the plaintiff in the underlying action] (by virtue of the exculpatory clause) is triggered only upon gross negligence, its duty is to avoid ordinary negligence. Upon breach of that duty, fairness requires that [the defendant] contribute to the judgment in proportion to its culpability. [Id. Emphasis in original.]
Perhaps most persuasive was the court's observation that "it would be patently unfair to abrogate the [codefendants'] right to contribution based on an exculpatory clause to which they were not a party." Id. In this case, Universal was not a party to the membership agreement between Vic Tanny and Ostroski. By asserting the release provision as a defense to the contribution claim, Vic Tanny is able to shift all claims to Universal without its prior knowledge or consent.[1]
Nonetheless, Vic Tanny contends that the language of the contribution statute, enacted after Moyses, supra, dictates a different result from that which we would reach under the rationale of Sommer. Reluctantly, we agree.
MCL 600.2925a; MSA 27A.2925(1) provides in pertinent part:
(3) A tort-feasor who enters into a settlement agreement with a claimant is not entitled to recover contribution from another tort-feasor if any of the following circumstances exist:
(a) The liability of the contributee for the injury or wrongful death is not extinguished by the settlement.
*371 (b) A reasonable effort was not made to notify the contributee of the pendency of the settlement negotiations.
(c) The contributee was not given a reasonable opportunity to participate in the settlement negotiations.
(d) The settlement was not made in good faith.
(4) In an action to recover contribution commenced by a tort-feasor who has entered into a settlement, the defendant may assert the defenses set forth in subsection (3) and any other defense he may have to his alleged liability for such injury or wrongful death. [Emphasis added.]
Vic Tanny contends that the release provision qualifies as "any other defense," thereby exonerating it from liability for contribution. We agree that the plain language of the statute cannot be read any other way. The reference to a defendant's "alleged liability for such injury or wrongful death" clearly refers to liability to the injured party. The statute allows the defendant to apply "any" defense available against such liability to the contribution claim. Where the language of a statute is clear, the Legislature must have intended the meaning plainly expressed, and the statute must be enforced as written. Gebhardt v O'Rourke, 444 Mich 535, 541-542; 510 NW2d 900 (1994). In this case, the release clause effectively provides Vic Tanny with a defense against liability to Ostroski if its conduct constituted ordinary negligence.
Accordingly, while we remand for further proceedings, we conclude that Vic Tanny may be liable for contribution only for gross negligence.
III
Universal also argues that summary disposition *372 was improper with respect to its indemnification claim. We disagree.
In Williams v Litton Systems, Inc, 433 Mich 755, 760; 449 NW2d 669 (1989), the Supreme Court held that an action for indemnification can be maintained only on the basis of an express contract or, in the case of common-law or implied contractual indemnification, by a party who is free from negligence or fault. In addition, where the complaint in the underlying action does not contain allegations of derivative or vicarious liability, a claim of implied indemnification is precluded. Employers Mutual Casualty Co v Petroleum Equipment, Inc, 190 Mich App 57, 65-66; 475 NW2d 418 (1991); Hadley v Trio Tool Co, 143 Mich App 319, 331; 372 NW2d 537 (1985).
Universal's indemnification claim is not based on an express contractual agreement. Further, Ostroski's complaint in the underlying action alleged active negligence on the part of Universal. Universal argues that, if the matter had proceeded to trial, the evidence would have shown that Vic Tanny improperly maintained its facilities and failed to apply a warning sticker. Where, as here, there are no allegations of vicarious liability and the party seeking indemnification disputes its own active negligence, it must do so against the plaintiff in the underlying action. See Gruett v Total Petroleum, Inc, 182 Mich App 301, 307; 451 NW2d 608 (1990), rev'd on other grounds 437 Mich 876 (1990). Accordingly, the circuit court properly granted Vic Tanny's motion for summary disposition of the indemnification claim.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion. We do not retain jurisdiction if the motion to file a second amended complaint is granted. We do retain jurisdiction if it is denied.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] The effect on Vic Tanny's insurability for such risks is not before us, but certainly an underwriter would weigh these risks in estimating premiums. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598484/ | 3 So.3d 892 (2008)
Betty GRIFFIN
v.
PRIME HEALTHCARE CORPORATION d/b/a Lafayette Extended Care, LLC.
2060705.
Court of Civil Appeals of Alabama.
August 15, 2008.
*893 Timothy L. Dillard and Stewart S. Wilbanks of Dillard & Associates, L.L.C., Birmingham, for appellant.
Stanley A. Martin, S. Allen Martin, Jr., and Christopher M. Bazzell, Opelika, for appellee.
THOMAS, Judge.
Betty Griffin ("the employee") was employed by Prime Healthcare Corporation d/b/a Lafayette Extended Care, LLC ("the employer"). In April or May 2003, the employee was allegedly injured in the line and scope of her employment. She sued the employer and several fictitiously named defendants in November 2004, seeking an award of workers' compensation benefits. In May 2006, the employer filed a motion for a summary judgment, arguing that the employee's injury occurred outside the scope of her employment, specifically during an incident of horseplay. The employee responded to the employer's motion. The trial court entered a summary judgment in favor of the employer on September 26, 2006; however, the trial court set that judgment aside on the employee's postjudgment motion. After a later hearing on the employer's summary-judgment motion, the trial court again entered a judgment in favor of the employer. The employee appealed that judgment.
The trial court's summary-judgment order states, in its entirety:
"This matter came before the Court for hearing on a Motion for Summary Judgment filed by the [employer] with counsel for both parties being present before the Court. After hearing and considering the argument of counsel, it is hereby Ordered as follows:
"IT IS ORDERED, ADJUDGED and DECREED that based upon the pleadings and affidavits, the Court finds that there is no genuine issue of material fact and the [employer's] Motion for Summary Judgment is due to be GRANTED. Judgment is hereby rendered in favor of [the employer] as to all counts and allegations against [the employer] by [the employee].
"The Court further determines that there is no just reason for delay of the appellate process in that this judgment completely disposes of all claims against [the employer]; therefore said judgment is final as to [the employer].[[1]]
"The Clerk of the Court is to mail a copy of this Order to counsel of record and any party appearing pro se."
This court has long required summary-judgment orders in workers' compensation cases to comply with Ala.Code 1975, § 25-5-88, which requires written findings of fact and conclusions of law in workers' compensation judgments. Nelson v. Dollar Gen. Corp., 900 So.2d 1248, 1248 (Ala. Civ.App.2004); Sheffield v. Choctaw Transp., Inc., 891 So.2d 344, 345 (Ala.Civ. App.2004); Casteel ex rel. Johnson v. Wal-Mart Stores, Inc., 828 So.2d 331, 332 (Ala. Civ.App.2002); Carr v. Added Dimensions *894 No. 72 Brookwood, Inc., 772 So.2d 473, 475 (Ala.Civ.App.2000); and Farris v. St. Vincent's Hosp., 624 So.2d 183, 185 (Ala.Civ. App.1993). The summary-judgment order in the present case does not contain the required findings or conclusions. Therefore, we reverse the judgment and remand the cause for the entry of a judgment in compliance with § 25-5-88.
REVERSED AND REMANDED WITH INSTRUCTIONS.
THOMPSON, P.J., and PITTMAN, BRYAN, and MOORE, JJ., concur.
NOTES
[1] Because no defendants were ever substituted for the fictitiously named defendants, the existence of those unserved and unnamed defendants did not preclude the finality of the judgment, and the Rule 54(b), Ala. R. Civ. P., certification entered by the trial court was unnecessary. See Rule 4(f), Ala. R. Civ. P. ("When there are multiple defendants and the summons ... and the complaint have been served on one or more, but not all, of the defendants, the plaintiff may proceed to judgment as to the defendant or defendants on whom process has been served and, if the judgment as to the defendant or defendants who have been served is final in all other respects, it shall be a final judgment."); and Rule 54(b), Ala. R. Civ. P.; see also Owens v. National Sec. of Alabama, Inc., 454 So.2d 1387, 1388 n. 2 (Ala.1984); and Thompson v. Williams, 752 So.2d 525, 526 n. 1 (Ala.Civ. App.1999). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601818/ | 361 F.Supp. 627 (1973)
WURZBURGER, MORROW & KEOUGH, INC., Plaintiff,
v.
The KEYSTONE COMPANY OF BOSTON et al., Defendants.
No. 73 Civ. 972.
United States District Court, S. D. New York.
June 22, 1973.
*628 Silverman & Harnes, New York City, for plaintiff and Greenbaum, Wolf & Ernst, New York City.
Chadbourne, Parke, Whiteside & Wolff, New York City, for defendant Sanders & Co. by Paul G. Pennoyer, Jr., New York City, of counsel, and Ropes & Gray, Boston, Mass., by George C. Caner, Paul B. Galvani, Boston, Mass.
Skadden, Arps, Slate, Meagher & Flom, New York City, for defendant Crosby Corp. and Gaston, Snow, Motley & Holt, Boston, Mass., by Ansel B. Chaplin, Peter M. Saparoff, Boston, Mass.
Sullivan & Cromwell, New York City, for defendant Keystone Co. by James H. Carter, Jr., New York City.
Willkie, Farr & Gallagher, New York City, for defendant Putnam Fund by David L. Foster, New York City, and Bingham, Dana & Gould, Boston, Mass., by Thomas H. Walsh, Jr., Gordon B. Greer, Boston, Mass.
MEMORANDUM
POLLACK, District Judge.
Four of the defendants herein have moved the Court to transfer this case to the District of Massachusetts. 28 U.S. C. § 1404(a). The fifth defendant, National Securities & Research Corporation, neither joins nor opposes the motion; it does concede, however, that it is amenable to suit in the proposed District.
28 U.S.C. § 1404(a) provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
The burden is on movants to show the requested forum would be more convenient not merely equally convenient for the parties and witnesses and would be in the interest of justice. U. S. Industries v. Procter & Gamble Co., 348 F.Supp. 1265, 1268 (S.D.N.Y.1972).
This is an antitrust action brought under the Sherman Act, 15 U. S.C. § 1, alleging that defendants, which are principal underwriters of mutual funds, have unlawfully conspired to withhold from broker-dealers sales commissions below certain levels which are earned through operation of dividend reinvestment plans. The complaint also charges defendants with conspiracy to impede the growth of secondary markets in mutual funds. Plaintiff, a broker-dealer, purports to sue representatively on behalf of a class of all broker-dealers who sold shares in funds sponsored by defendants and who were denied commissions as a result of the unlawful activities alleged herein. However, no steps have been taken, pursuant to local rules of this Court, to obtain a ruling on the feasibility of the proposed class. U. S.Dist.Ct.R., S.D.N.Y., General Rule 11A. Accordingly, in considering the *629 motion to transfer, the suit can be presently viewed only as an individual action against the named defendants. See Beaver Associates v. Cannon, 59 F.R.D. 508 (S.D.N.Y.1973); Jeffery v. Malcolm, 353 F.Supp. 395 (S.D.N.Y.1973); cf. Eisen v. Carlisle & Jacquelin, 479 F. 2d 1005 (2d Cir. 1973).
Defendants contend that a New York forum would prove disruptive to their businesses. Movants have their principal executive offices in Boston, where all the funds they sponsor are located. To defend this action, defendants claim ranking company officials would be forced to travel to New York and voluminous documents would have to be transported here; the effect would be to severely impede normal activities. Defendants argue that plaintiff, on the other hand, would not be inconvenienced by a Boston trial.
While the Court finds that Massachusetts would be a proper and convenient forum for this suit, it is not persuaded that Massachusetts is a more convenient forum for the suit if its present posture is maintained. The action is an individual suit challenging certain sales commissions. The evidentiary proof necessary to sustain or to refute the allegations herein of an individual plaintiff should not require the extensive disruption which defendants predict. Most of the sales agreements underlying the complaint are duplicative, and the number of separate documents to be necessarily transported should not prove prohibitive. While some executives may be forced to travel from Boston to New York for trial, that burden is not sufficiently substantial to warrant transfer of this case; pre-trial proceedings, which plaintiff's counsel has consented to conduct in Boston, should minimize this burden. New York, where each defendant has some sort of regional office and where much of the securities industry is centered, is not preponderantly an inappropriate forum to try out the issues herein. The calendar of this Court will permit a trial date to be set for early in the fall of 1973.
The motion to transfer is presently denied with leave to renew if the complexion of the case should change to one other than an individual plaintiff's suit. The parties are directed to proceed, as provided by Fed.R.Civ.P. 23(c) and local Rule 11A of this Court, for a determination as to whether the action is to be maintained as a class action.
So ordered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598446/ | 995 F.Supp. 1001 (1998)
Thelma HALL, Plaintiff,
v.
MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION
and
Ron Hopkins, Defendants.
No. 4:96 CV 01042 SNL.
United States District Court, E.D. Missouri, Eastern Division.
March 6, 1998.
*1002 Lois Spritzer, Van Amberg and Chackes, St. Louis, MO, for Plaintiff.
Paula R. Lambrecht, Melinda K. Grace-Beasley, Highway & Transp. Com'n, State of Mo., Jefferson City, MO, for Defendants.
*1003 MEMORANDUM AND ORDER
LIMBAUGH, District Judge.
This matter is before the Court on the summary judgment motions filed by defendant Missouri Highway Transportation Commission ("MHTC") and defendant Ron Hopkins ("Hopkins") (collectively "Defendants") on December 1, 1997. The underlying employment discrimination action arises under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and 42 U.S.C. § 1983 ("§ 1983"). Plaintiff argues that she was disparately treated in the terms and conditions of her employment, and ultimately discharged, because of her age and gender. Plaintiff also alleges that Hopkins retaliated against her for complaining of discrimination against older women in her district. Defendants deny these allegations.
Background
MHTC is a subordinate body of the executive branch of the government of the State of Missouri. It consists of six appointed members and has the authority to construct, reconstruct, and maintain all roadways and bridges in the state highway system.
The Missouri Department of Transportation ("MoDOT") is an organization operating under the exclusive control of MHTC. To aid in its operations, MoDOT has divided the state into ten geographical areas designated as districts, each containing an office responsible for administration of work within that area. Plaintiff was employed in district # 6, consisting of the City of St. Louis, and St. Louis, St. Charles, Jefferson and Franklin counties.
Plaintiff began her employment with MoDOT as a typist on July 1, 1969. She was promoted to secretary in August, 1970, and to senior secretary one year later. Plaintiff remained a senior secretary until her termination on March 17, 1995.
Plaintiff has been under Hopkins' direct supervision since October, 1987. Although Hopkins initially selected Plaintiff to remain on his staff, their relationship has since been less than ideal. The record is replete with evidence of the combative nature of their relationship.
Plaintiff was generally regarded as a competent employee. Her most recent performance appraisal comments:
Works extremely carefully. Attention to detail is particularly strong.
...
A hard worker who doesn't like leaving work undone. Output is above level that would be considered acceptable.
Plaintiff's other performance appraisals contain similar remarks.
Over the past several years, however, these same performance appraisals also reference Plaintiff's ill-tempered nature, insubordination, and general disregard for her coworkers and supervisors. Her most recent performance appraisal reports:
She is also quick to criticize and shows little tolerance of errors made by others. She has trouble controlling her emotions and frequently raises her voice when expressing her dissatisfaction.
Likewise, her 1993 performance appraisal notes:
Continues to have problem exercising self-control when frustrated or under pressure. However, she has clearly made an effort to improve in this area and the number of incidents have decreased during the past year.
Finally, Plaintiff's 1992 performance appraisal states:
Her disposition is generally pleasant and cooperative, but she continues to have problems controlling her emotions. She can suddenly become despondent and argumentative. There have been instances in which she has become loud and abusive attracting the attention of co-workers and visitors to the district office. She has been cautioned by the district management staff and myself and is aware that future outbursts will not be tolerated. She has received an oral reprimand and is aware that any future disruptive behavior will lead to progressively severe disciplinary action.
Plaintiff contends that she frequently complained of discrimination against older women in her department. She maintains that older secretaries with seniority were passed over for promotions while younger secretaries *1004 were promoted within six months of hire. She argues that Hopkins showed a preference for younger women in 1993, when he hired a young college graduate to fill the newly created human resources specialist position.[1] She further argues that MHTC discriminatorily classified the senior secretaries, primarily women over the age of forty, at a lower grade than the younger human resources specialists. Plaintiff insists that both groups of employees shared many of the same job responsibilities. Plaintiff has also alleged many instances of personalized disparate treatment.
Defendants argue that Plaintiff was a disgruntled employee who complained incessantly, and only for her own benefit. They note the triviality of many of Plaintiff's suggested instances of disparate treatment. They further contend that there were legitimate job distinctions between the human resource specialists and senior secretaries. Finally, Defendants assert that Plaintiff was frequently disruptive and unprofessional in her manner. They insist that she would burst into Hopkins' office unannounced and demand an audience for her complaints. If Hopkins refused, Defendants claim that Plaintiff would become abusive and hostile.
On March 17, 1995, Plaintiff presented Hopkins with a coding mistake made by the human resources specialist, Melissa Hubbs. Hopkins asked Plaintiff to correct the error. Plaintiff allegedly suggested that Hubbs correct the error so that she would learn and not continue to make the same mistakes. Additionally, Plaintiff maintains that she told Hopkins that she had more pressing work and would correct the error when she had time. Although the exact nature of the ensuing confrontation is disputed, it is clear that Hopkins went to his supervisors who in turn asked Plaintiff to go home. Plaintiff was later discharged for her insubordination.
MHTC argues that it is entitled to summary judgment on Plaintiff's Title VII claims because she cannot establish a prima facie case of disparate treatment, discriminatory discharge, or retaliation, and because it has presented legitimate, nondiscriminatory reasons for all of the alleged adverse employment actions. MHTC further argues that Plaintiff's ADEA claims should be dismissed because it is entitled to Eleventh Amendment immunity.
Hopkins argues that he is entitled to summary judgment on Plaintiff's § 1983 claims because her speech was not a matter of public concern and his interest, and that of MHTC, in promoting the efficiency of public service outweighed any interest of Plaintiff. He further argues that there were legitimate, non-retaliatory reasons for all of his actions. Finally, he argues that he is entitled to qualified immunity.
Discussion
Courts have repeatedly recognized that summary judgment is a harsh remedy that should be granted only when the moving party has established its right to judgment with such clarity as not to give rise to controversy. New England Mutual Life Insurance Co. v. Null, 554 F.2d 896, 901 (8th Cir.1977). Summary judgment motions, however, "can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those that really do raise genuine issues of material fact." Mt. Pleasant v. Associated Electric Cooperative Inc., 838 F.2d 268, 273 (8th Cir.1988).
Pursuant to Fed.R.Civ.P. 56(c), a district court may grant a motion for summary judgment if all of the information before the court demonstrates that "there is no genuine issue as to material fact and the moving party is entitled to judgment as a matter of law." Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962). The burden is on the moving party. Mt. Pleasant, 838 F.2d at 273. After the moving party discharges this burden, the nonmoving party must do more than show that there is some doubt as to the facts. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the nonmoving party bears the burden of *1005 setting forth specific facts showing that there is sufficient evidence to allow a jury to return a verdict in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In passing on a motion for summary judgment, the court must review the facts in a light most favorable to the party opposing the motion and give that party the benefit of any inferences that logically can be drawn from those facts. Buller v. Buechler, 706 F.2d 844, 846 (8th Cir.1983). The court is required to resolve all conflicts of evidence in favor of the nonmoving party. Robert Johnson Grain Co. v. Chemical Interchange Co., 541 F.2d 207, 210 (8th Cir.1976).
Title VII
As an initial matter, the Court concludes that Plaintiff has exhausted her administrative remedies with respect to her claims of disparate treatment and retaliation. The affidavit filed along with Plaintiff's charge of discrimination clearly alleges facts sufficient to put the Equal Employment Opportunity Commission on notice to investigate these additional claims. See Gipson v. KAS Snacktime, Co., 83 F.3d 225, 229 (8th Cir. 1996); Tart v. Hill Behan Lumber Co., 31 F.3d 668, 671 (8th Cir.1994); cf. Williams v. Little Rock Municipal Water Works, 21 F.3d 218, 222-23 (8th Cir.1994). Moreover, these claims are timely and relate back to the date on which Plaintiff filed her original Complaint. F.R.C.P. 15(c); see also Berthiaume v. Enterprise Rent-A-Car, 164 F.R.D. 121 (D.Mass.1995). Finally, the Court agrees that Plaintiff can proceed under Title VII on a theory of sex-plus-age discrimination. See Phillips v. Martin Marietta Corp., 400 U.S. 542, 543-44, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971); Knott v. Missouri Pacific Railroad Co., 527 F.2d 1249, 1250-51 (8th Cir.1975); Arnett v. Aspin, 846 F.Supp. 1234, 1237-41 (E.D.Pa.1994).
A plaintiff alleging sex-plus-age discrimination may proceed to trial in one of two ways. When a plaintiff produces direct evidence, such as statements by decisionmakers clearly showing that sex and age were motivating factors in the challenged employment decisions; or at least significant circumstantial evidence showing a specific link between the alleged discriminatory animus and the challenged employment decisions, the burden-shifting standards established by Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), apply. Stacks v. Southwestern Bell Yellow Pages, 996 F.2d 200, 201-02 (8th Cir.1993). In the absence of such evidence, it is the guidelines set forth in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), that are controlling. Ryther v. KARE 11, 108 F.3d 832, 836 (8th Cir.1997) (en banc), cert. denied, ___ U.S. ___, 117 S.Ct. 2510, 138 L.Ed.2d 1013 (1997); Rothmeier v. Investment Advisers, 85 F.3d 1328, 1332 (8th Cir.1996); Hutson v. McDonnell Douglas Corp., 63 F.3d 771, 776 (8th Cir. 1995).[2]
Plaintiff argues that the Price Waterhouse standard should apply because she has presented direct evidence of discrimination. She claims that on more than one occasion Hopkins referred to three different female employees as "old women" and/or "crazy old women." Plaintiff has no evidence, however, linking these remarks to the decisional process surrounding any of the specific instances of discrimination at issue in this lawsuit. See Aucutt v. Six Flags Over Mid-America, Inc., 85 F.3d 1311, 1315-16 (8th Cir.1996); Radabaugh v. Zip Feed Mills, Inc., 997 F.2d 444, 449 (8th Cir.1993); Beshears v. Asbill, 930 F.2d 1348, 1354 (8th Cir.1991). Absent such evidence, the Court concludes that these comments were merely stray remarks.
The remainder of Plaintiff's putative direct evidence consists solely of verbal re-characterizations of her circumstantial evidence, *1006 i.e., that she was allegedly subjected to more onerous working conditions than younger female employees or that Hopkins spoke to the older women in the department in a derogatory tone. Accordingly, because Plaintiff has not presented any direct evidence of sex-plus-age discrimination or significant circumstantial evidence showing a specific link between the alleged discriminatory animus and the adverse employment actions at issue, the Court will analyze her claims under the McDonnell Douglas standard.
Under McDonnell Douglas, supra, a plaintiff must first establish a prima facie case of unlawful discrimination. Roxas v. Presentation College, 90 F.3d 310, 315 (8th Cir.1996); Rothmeier, 85 F.3d at 1332; Stacks, 996 F.2d at 202. A prima facie case of sex-plus-age discrimination requires the Plaintiff to show that she was a member of the protected class (women over forty); that she was subjected to an adverse employment action; that she was qualified for a particular position or job, or was performing adequately in her job; and that the adverse employment action occurred under circumstances which would allow the court to infer unlawful discrimination. Arnett, 846 F.Supp. at 1241; see also McLaughlin v. Esselte Pendaflex Corp., 50 F.3d 507, 510-11 (8th Cir.1995); Davenport v. Riverview Gardens School, 30 F.3d 940, 944 (8th Cir.1994).
If the plaintiff successfully establishes a prima facie case, a legal presumption of unlawful discrimination arises and the burden shifts to the defendant employer to articulate a legitimate, nondiscriminatory reason for the challenged employment action. Ryther, 108 F.3d at 836. If the employer meets this burden of production, "the legal presumption of unlawful discrimination `drops out of the picture.'" Id., quoting St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Still, the elements of the prima facie case remain. Ryther, 108 F.3d at 837. Moreover, when accompanied by evidence of pretext and disbelief of the defendant's proffered explanation, in some instances, they may permit a finding for the plaintiff. Id.; see also Hicks, 509 U.S. at 511. Nevertheless, "evidence of pretext will not by itself be enough to make a submissible case if it is, standing alone, inconsistent with a reasonable inference of [sex-plus-age] discrimination." Ryther, 108 F.3d at 837. In other words, "[i]ntentional discrimination vel non is like any other ultimate question of fact: either the evidence is sufficient to support a finding that the fact has been proven, or it is not." Rothmeier, 85 F.3d at 1335. At all times, the plaintiff employee retains the ultimate burden of proving that she was the victim of intentional discrimination. Hicks, 509 U.S. at 507; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Rothmeier, 85 F.3d at 1332.
In addition to her own testimony, Plaintiff has presented affidavits from two of her former co-workers. Both of these former employees indicate that Hopkins was unresponsive and hostile to their complaints of disparate treatment of older women in the district. Moreover, both affiants dispute Defendants' evidence of Plaintiff's ill-tempered nature. Plaintiff has also produced a series of notes taken by Melissa Hubbs over a month before Plaintiff's discharge which indicate that Hopkins had spoken with his supervisor about his intent to confront Plaintiff in an effort to get her transferred or dismissed. These notes could support an inference of pretext as to MHTC's proffered reasons for its actions. Based upon this evidence and the conflicting versions of the events leading up to and on March 17, 1995, the Court concludes that the Plaintiff has created a genuine issue of material fact sufficient to preclude summary judgment on her claims of disparate treatment and discriminatory discharge. Plaintiff has also produced evidence sufficient to preclude summary judgment on her claim of retaliation arising under Title VII.[3]
ADEA
MHTC is an arm of the State of Missouri, and entitled to Eleventh Amendment immunity. See Poettker Construction Co. v. Highway & Transportation Commission of Missouri, 817 F.Supp. 75, 76 *1007 (E.D.Mo.1993) (MHTC is part of the executive branch of the government of the State of Missouri and its funds are part of the State's general treasury); see also Hadley v. North Arkansas Community Technical College, 76 F.3d 1437, 1439 (8th Cir.1996) ("[c]ourts typically look at the degree of local autonomy and control and most importantly whether the funds to pay any award will be derived from the state treasury") (quoting Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir. 1985)); Sherman v. Curators of University of Missouri, 16 F.3d 860, 863 (8th Cir.1994) (same). Therefore, before it can be sued in federal court, Plaintiff must show that MHTC has waived its Eleventh Amendment immunity or that its Eleventh Amendment immunity has been abrogated by an act of Congress. Barnes v. State of Missouri, 960 F.2d 63, 64-65 (8th Cir.1992). It is undisputed, however, that MHTC has not waived its Eleventh Amendment immunity.
In determining whether Congress has abrogated state sovereign immunity, courts are to ask two questions: "first, whether Congress has unequivocally expresse[d] its intent to abrogate the immunity, and second, whether Congress has acted pursuant to a valid exercise of power." Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996) (internal quotations and citations omitted).
Although courts have disagreed as to whether Congress unequivocally expressed its intent to abrogate the States' Eleventh Amendment immunity in the 1974 Amendments to the ADEA,[4]see Hurd v. Pittsburg State University, 821 F.Supp. 1410, 1413 (D.Kan.1993), aff'd, 29 F.3d 564 (10th Cir. 1994); Davidson v. Board of Governors of State Colleges & Universities, 920 F.2d 441, 443 (7th Cir.1990); compare Humenansky v. Board of Regents of the University of Minnesota, 958 F.Supp. 439, 441-42 (D.Minn. 1997), for the purposes of this analysis, the Court will assume that it did.
In Seminole Tribe, supra, the Supreme Court overruled the plurality opinion in Pennsylvania v. Union Gas Co., 491 U.S. 1, 109 S.Ct. 2273, 105 L.Ed.2d 1 (1989), that the Interstate Commerce Clause, U.S. Const. art. I, § 8, cl. 3, granted Congress the power to abrogate state sovereign immunity. The Court stated:
In overruling Union Gas today, we reconfirm that the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area, like the regulation of Indian commerce, that is under the exclusive control of the Federal Government. Even when the Constitution vests in Congress complete law-making authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction.
Seminole Tribe, 517 U.S. at 71-73, 116 S.Ct. at 1131-32.
As the Commerce Clause is the only source of authority for the ADEA heretofore recognized by the Supreme Court, see Gregory v. Ashcroft, 501 U.S. 452, 467-68, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991) ("[t]he extension of the ADEA to employment by state and local governments was a valid exercise of Congress' powers under the Commerce Clause"); EEOC v. Wyoming, 460 U.S. 226, 243, 103 S.Ct. 1054, 75 L.Ed.2d 18 (1983) (same), MHTC argues that the 1974 Amendments could not have validly abrogated its Eleventh Amendment immunity. Accordingly, MHTC argues that this Court has no jurisdiction to consider Plaintiff's ADEA claim.
Plaintiff argues that several circuits have found that the ADEA was also passed pursuant to § 5 of the Fourteenth Amendment. See Hurd v. Pittsburg State University, 109 F.3d 1540, 1546 (10th Cir.1997) ("Congress acted pursuant to its powers under the Fourteenth Amendment when it applied the ADEA to the states"); Davidson, 920 F.2d at 443 (same). It is beyond dispute that § 5 of *1008 the Fourteenth Amendment grants Congress the power to abrogate state sovereign immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976) ("Congress may, in determining what is `appropriate legislation' for the purpose of enforcing the provisions of the Fourteenth Amendment, provide for private suits against States or state officials which are constitutionally impermissible in other contexts.").
Whether the congressional authority for the 1974 Amendments to the ADEA derived from § 5 of the Fourteenth Amendment as well as from the Commerce Clause is unclear at best. Unlike classifications based on race, the Supreme Court has held that the Equal Protection Clause of the Fourteenth Amendment permits states to make employment decisions based on age, provided the state's decision satisfies the rational-relation test applied to economic legislation. See e.g., Gregory, 501 U.S. at 470-73; Vance v. Bradley, 440 U.S. 93, 99 S.Ct. 939, 59 L.Ed.2d 171 (1979); Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976).
Indeed, in Wyoming, supra, Chief Justice Burger, joined by Justices Powell, Rehnquist, and O'Connor, argued in dissent that the 1974 Amendments to the ADEA could not have been passed pursuant to § 5 of the Fourteenth Amendment.[5] The Chief Justice stated, "it cannot be said that in applying the Age Act to the states Congress has acted to enforce equal protection guarantees as they have been defined by this Court." Wyoming, 460 U.S. at 261 (Burger, C.J., dissenting). He further stated, "[t]here is no hint in the body of the Constitution ratified in 1789 or in the relevant amendments that every classification based on age is outlawed." Id. at 263.
More recently, in Boerne v. Flores, ___ U.S. ___, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997), the Supreme Court found the Religious Freedom Restoration Act of 1993 ("RFRA"), 42 U.S.C. § 2000bb et seq., to be beyond Congress' "remedial" power under § 5 of the Fourteenth Amendment. The majority explained that Congress' power under § 5 "extends only to enforcing the provisions of the Fourteenth Amendment." Id. at ___, 117 S.Ct. at 2164 (internal quotations omitted).
Although Congress has substantial discretion to determine "whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment," its discretion is not unlimited. Boerne, ___ U.S. at ___, 117 S.Ct. at 2172. "The design of the Amendment and the text of § 5 are inconsistent with the suggestion that Congress has the power to decree the substance of the Fourteenth Amendment's restrictions on the States." Id. at ___, 117 S.Ct. at 2164. As the Supreme Court noted with respect to the Free Exercise Clause of the First Amendment: "Congress does not enforce a constitutional right by changing what the right is." Id. Otherwise, "no longer would the Constitution be `superior paramount law, unchangeable by ordinary means.' It would be `on a level with ordinary legislative acts, and, like other acts, ... alterable when the legislature shall please to alter it.'" Id. at ___, 117 S.Ct. at 2168 (quoting Marbury v. Madison, 5 U.S. 137, 177, 1 Cranch 137, 177, 2 L.Ed. 60 (1803)).
The Court finds these arguments persuasive and concludes that the 1974 Amendments to the ADEA could not have been passed pursuant to § 5 of the Fourteenth Amendment.[6] Like the RFRA, the ADEA's "[s]weeping coverage ensures its intrusion at every level of government." Boerne, ___ U.S. at ___, 117 S.Ct. at 2170. Recognizing such a broad intrusion into a traditional *1009 realm of state decisionmaking is inconsistent with the Supreme Court's well-established equal protection jurisprudence. Accordingly, MHTC is entitled to Eleventh Amendment immunity on Plaintiff's ADEA claims.
§ 1983
To establish a claim of retaliation in violation of the First Amendment, Plaintiff must show that her speech addressed matters of public concern and that "[her interest], as a citizen, in commenting on matters of public concern outweighs the interest of the state, as an employer, in promoting the efficiency of the public services it performs." Tyler v. City of Mountain Home, Arkansas, 72 F.3d 568, 570 (8th Cir.1995) (citing Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)); see also Kincade v. City of Blue Springs, 64 F.3d 389, 395 (8th Cir.1995). Both questions are issues of law for the court to decide. Tyler, 72 F.3d at 570.
"Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record." Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Contrary to Hopkins assertions, Plaintiff's complaints were not merely personal grievances about her job assignments and rate of pay. Instead, the record suggests that Plaintiff complained of an overall pattern of discrimination against older women in her district. Although many of these complaints arose in personal disputes, they clearly touch upon matters of public concern. See e.g., Chappel v. Montgomery County Fire Protection, 131 F.3d 564, 574 (6th Cir. 1997) ("the argument that an individual's personal motives for speaking may dispositively determine whether that individual's speech addresses a matter of public concern is plainly illogical and contrary to the broader purposes of the First Amendment"); Tao v. Freeh, 27 F.3d 635, 639-40 (D.C.Cir.1994) ("[w]hile an individual personnel dispute does not generally constitute a matter of public concern, an employee's speech aimed at resolving a personnel dispute may touch upon an issue of public concern"); see also Connick, 461 U.S. at 148 n. 8 (racial discrimination is "a matter inherently of public concern").
Likewise, the Court concludes that the Pickering balancing test must weigh in favor of Plaintiff's First Amendment rights. There is simply no argument to be made that an employee's complaints of sex and age discrimination undermine "the effective functioning of the public employer's enterprise." Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987).
Nevertheless, Hopkins argues that he is still entitled to summary judgment on Plaintiff's § 1983 claim because Plaintiff cannot show that she suffered any adverse employment action. He explains that he was not responsible for Plaintiff's termination and that her other complaints are too de minimis to be justiciable under § 1983. Alternatively, Hopkins contends that Plaintiff cannot show that her protected speech was a motivating factor for any alleged retaliatory conduct.
In Rutan v. Republican Party, 497 U.S. 62, 75, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990), the Supreme Court held that an employee who suffered an adverse employment action other than dismissal could maintain a First Amendment tort suit. See also Smith v. Fruin, 28 F.3d 646, 649 n. 3 (7th Cir.1994) ("even minor forms of retaliation can support a First Amendment claim, for they may have just as much of a chilling effect on speech as more drastic measures"); Tao, 27 F.3d at 639 ("[e]mployer action taken against an employee in response to her exercise of free speech need not be as significant as the denial of a promotion to raise a constitutional claim"). The Court therefore concludes that the pattern of harassment alleged in this case is sufficient to state a First Amendment claim under § 1983. Additionally, the Court concludes that Plaintiff has created a genuine issue of material fact as to whether Hopkins actions were motivated by her speech.
Finally, the Court concludes that Hopkins defense of qualified immunity must be denied. Plaintiff's rights under the First Amendment were clearly established at the time of the events giving rise to this lawsuit. See e.g., Whisman v. Rinehart, 119 F.3d 1303, 1309 (8th Cir.1997).
Accordingly,
*1010 IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by defendant Missouri Highway Transportation Commission on December 1, 1997, is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that defendant Missouri Highway Transportation Commission is entitled to Eleventh Amendment immunity on Plaintiff's ADEA claims and that Count II of Plaintiff's Third Amended Complaint be and is DISMISSED for lack of subject matter jurisdiction.
IT IS FINALLY ORDERED that the Motion for Summary Judgment filed by defendant Ron Hopkins on December 1, 1997, is DENIED.
NOTES
[1] Plaintiff claims that Hopkins only interviewed women in their twenties for the human resources specialist position. She also claims that she was told she was not qualified for the position despite her years of experience because she did not have a college degree. Plaintiff argues that this is violative of the department policy that five years of employment is equal to a college degree.
[2] Cases interpreting the ADEA can also be useful in Title VII cases, and vice versa, because the relevant definitions are nearly identical and the underlying purpose is similar. Devine v. Stone, Leyton & Gershman, P.C., 100 F.3d 78, 80 (8th Cir.1996), cert. denied, ___ U.S. ___, 117 S.Ct. 1694, 137 L.Ed.2d 821 (1997); Lenhardt v. Basic Institute of Technology, Inc., 55 F.3d 377, 380 (8th Cir.1995). Indeed, the standards and provisions governing the proper order and nature of proof for employment discrimination cases under Title VII apply with equal force to cases arising under the ADEA. Berg v. Bruce, 112 F.3d 322, 326-27 (8th Cir.1997).
[3] Plaintiff's retaliation claim under Title VII is similarly analyzed under the McDonnell Douglas framework. Kim v. Nash Finch Co., 123 F.3d 1046, 1059-60 (8th Cir.1997).
[4] The ADEA, originally passed in 1967, did not provide a cause of action against the Federal Government or the States and their political subdivisions. In 1974, Congress amended the statute's coverage provisions to include these entities.
[5] The majority offered no opinion on the issue. Wyoming, 460 U.S. at 243 ("[w]e need not decide whether [the ADEA] could also be upheld as an exercise of Congress' powers under § 5 of the Fourteenth Amendment").
[6] In so doing, the Court respectfully disagrees with the analysis employed and results reached by the Tenth, Seventh, and First Circuits. See Hurd v. Pittsburg State University, 109 F.3d 1540, 1544-46 (10th Cir.1997); Davidson v. Board of Governors of State Colleges & Universities, 920 F.2d 441, 443 (7th Cir.1990); Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 700 (1st Cir. 1983). The Court also notes that this reasoning is consistent with the general view that the ADEA is tied to the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 et seq., which was clearly passed pursuant to Congress' commerce authority. See Raper v. Iowa, 115 F.3d 623, 623-24 (8th Cir. 1997). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598459/ | 287 So.2d 133 (1973)
Chester T. WELDON, Appellant,
v.
The STATE of Florida, Appellee.
No. 73-472.
District Court of Appeal of Florida, Third District.
December 21, 1973.
Rehearing Denied January 21, 1974.
*134 Phillip A. Hubbart, Public Defender, and Mark King Leban, Asst. Public Defender, and Kurt Marmar, Legal Intern, for appellant.
Robert L. Shevin, Atty. Gen., and Joel D. Rosenblatt, Asst. Atty. Gen., for appellee.
Before PEARSON, HENDRY and HAVERFIELD, JJ.
PER CURIAM.
The appellant was tried upon an information charging him with the felony of uttering a worthless check. After trial before the court without jury, the court reduced the charge to a misdemeanor and found the appellant guilty. The court withheld the entry of adjudication of guilt and placed the defendant on probation for a period of two and one half years.
On this appeal, the defendant has presented three points for our review. The first urges that the trial court erred in denying defendant's motion for judgment of acquittal because the evidence was legally insufficient to prove intent. In light of the record, we find that this point does not establish error. It should be remembered that when a defendant moves for a directed verdict of acquittal, he admits all facts in evidence and every conclusion favorable to the State fairly and reasonably inferable therefrom. See Holland v. State, 129 Fla. 363, 176 So. 169 (1937); Devlin v. State, Fla.App. 1965, 175 So.2d 82. Whether the defendant issued the check involved herein with knowledge that there were insufficient funds and with the requisite intent to defraud may be determined from the circumstances.
Appellant's second point urges error upon the ground of the alleged unconstitutionality of Fla. Stat. § 832.05(6), F.S.A., which provides that "... the drawing, making, uttering or delivering of a check, draft or written order, payment of which is refused by the drawee, shall be prima facie evidence of knowledge of insufficient funds in or credit with such drawee". We note that this issue was not raised or argued in the trial court. Nevertheless, we have examined appellant's contention in the light of the argument advanced in his brief and find that the argument is not sufficient as a basis upon which to declare the section invalid. See Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970).
Appellant's third point urges that the sentence is excessive because the court found the appellant guilty of a misdemeanor in the second degree for which the maximum sentence is sixty days in prison. Fla. Stat. § 948.04, F.S.A., provides that a trial court may place a defendant on probation for two years beyond the maximum term provided for the offense by statute; therefore, two years plus sixty days is the maximum period for probation on this offense. Since this argument concerning the excessiveness of the sentence is meritorious, *135 the sentence shall be amended by reducing the term of probation to two years and sixty days.
Accordingly, the judgment is affirmed and the sentence is amended as above set out. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598500/ | 3 So.3d 961 (2007)
EX PARTE HAL WILLIAM HUTCHINSON
No. 1060340 (CR-05-1936).
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/1601759/ | 1 So.3d 331 (2009)
Daniel BEAM, Appellant,
v.
STATE of Florida, Appellee.
No. 5D07-1674.
District Court of Appeal of Florida, Fifth District.
January 23, 2009.
Charles P. Vaughn, Inverness, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
SAWAYA, J.
The issue we address is whether a defendant may be convicted of the crime of incest as proscribed by section 826.04, Florida Statutes, when the victim was 18 years of age and was adopted by the defendant. This issue is raised by Daniel Beam, who appeals the judgment and sentence imposed following the jury verdict finding him guilty as charged of incest. We note that Beam also appeals his conviction and sentence for the crime of sexual battery upon a person over the age of twelve by use of threats of retaliation as charged in Count X of the information. We affirm the judgment and sentence as to that conviction without further discussion.[1]
*332 Because we must resolve a legal issue, it is not necessary to discuss in detail the evidence presented during the trial. Suffice it to say that the evidence clearly established that the victim was adopted when she was four years old by her aunt and uncle. Beam is both the victim's adoptive father and her uncle by marriage to her maternal aunt. The State attempted to prove that Beam began sexually molesting the victim when she was about ten years old and that the abuse, which consisted primarily of fondling and oral sex, escalated over the victim's teenage years. Shortly after the victim turned 18 years of age, Beam had sexual intercourse with her, which led to his conviction for incest as charged in Count XI. The victim completed an abuse report that was promptly relayed to the police, and Beam was subsequently arrested.
At trial, following the close of the State's case, Beam moved for judgment of acquittal. That motion was denied, and the jury returned its verdict finding Beam guilty of incest in violation of section 826.04. Beam argues, as he did in his motion for judgment of acquittal, that he cannot be convicted of incest as a matter of law because the victim was over 18 years of age and was not related to him by consanguinity.
Our analysis begins with an iteration of the undisputed fact that the victim is Beam's adopted daughter and his niece by his marriage to her biological mother's sister. In other words, the fact that the victim is not related to Beam by consanguinity was not disputed at trial. The fact that the victim was over the age of 18 at the time of the offense was also undisputed. Although Beam has consistently proclaimed his innocence, he has also consistently argued that even if he did have intercourse with the victim, he cannot be convicted of incest because the victim was 18 and not a blood relative.
With those critical facts established and Beam's argument clearly stated, our analysis turns to interpreting the provisions of section 826.04, Florida Statutes (2006), which defines the crime of incest as follows:
Whoever knowingly marries or has sexual intercourse with a person to whom he or she is related by lineal consanguinity, or a brother, sister, uncle, aunt, nephew, or niece, commits incest, which constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. "Sexual intercourse" is the penetration of the female sex organ by the male sex organ, however slight; emission of semen is not required.
Because statutory interpretation is a legal matter, the standard of review is de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) ("The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.").
At the outset, it can be readily determined from the plain language of the statute that the first part of Beam's argument, that he cannot be convicted of incest because the victim was 18 years of age, is without merit. No age or consent requirements are contained in the statute. See McCaskill v. State, 55 Fla. 117, 45 So. 843, 845 (1908) (explaining that the age, consent, or lack of consent of a party to incest does not negate the crime).
As to the second part of Beam's argumentthat he cannot be convicted of incest *333 because he was not related to the victim by consanguinitywe believe that section 826.04 requires that both parties to the intercourse be related by consanguinity, whether lineal or collateral. The term "consanguinity" means related by blood; its antonym is "affinity," which means related by marriage. See Rothery v. State, 757 So.2d 1256, 1259 (Fla. 5th DCA 2000) ("Family relationships are of two types: those of consanguinity (blood) and affinity (marriage)."). "`[L]ineal consanguinity is that [blood relationship] which subsists between persons of whom one is descended in a direct line from the other, as between son, father, grandfather, and so upwards in the direct ascending line; or between son, grandson, great-grandson, and so downwards in the direct descending line.'" In re Estate of Angeleri, 575 So.2d 794, 794 n. 1 (Fla. 4th DCA 1991) (quoting Black's Law Dictionary 275 (5th ed. 1979)). Collateral consanguinity is that relationship "`which subsists between persons who have the same ancestors, but who do not descend (or ascend) one from the other [such as uncle and niece].'" Id. (quoting Black's).
Precedent from the courts supports the conclusion we reach. In Huckaby v. State, 343 So.2d 29 (Fla.1977), the court, after holding that rape and incest were separate and independent crimes, addressed the issue whether incest was a lesser included offense of rape. The court noted that under the general rule applicable at that time, the jury should be instructed on all lesser offenses that were covered by the accusatory pleading and supported by the evidence. The court specifically held that Huckaby's case did not fall within the purview of this rule because the indictment "[did] not allege the critical element of the crime of incestrequisite consanguinity between the defendant and his victims." Id. at 32. Hence, the court clearly held that consanguinity was a critical element of the crime of incest.
Earlier, the supreme court in Capps v. State, 87 Fla. 388, 100 So. 172 (1924), recognized that "the gist of the offense of incest in this State is sexual intercourse between blood relations and that such intercourse between persons related by affinity is not condemned in this State." Id. at 173. There, the court also addressed the sufficiency of an indictment that did not specifically include the term "consanguinity" in charging incest. However, unlike the accusatory pleading in Huckaby, the indictment in Capps alleged that the offending parties were related as uncle and niece. Concluding that the indictment in Capps was not defective, the court explained:
The relation of parent and child or uncle and niece is a relation by consanguinity; one lineal the other collateral. So a man's niece is related to him in that degree of consanguinity within which marriage with her is prohibited by [statute]. The word niece or uncle defines a relationship by consanguinity within a certain degree according to the civil, common or canon law, as certainly as the word father or daughter defines a relationship by consanguinity within a certain degree.
Id. The court therefore concluded that the indictment was sufficient and not impermissibly vague, noting that "the words uncle and niece are generally understood to mean blood relationship." Id.
More recently, the court in Hull v. State, 686 So.2d 676 (Fla. 3d DCA 1996), review denied, 695 So.2d 701 (Fla.1997), observed: "The relationship of uncle-in-law and niece-in-law is clearly not alone sufficient . . . to implicate the incest statute, section 826.04, Florida Statutes (1995) (requiring relationship of `uncle' and `niece')." Id. at 677 n. 2. Applying similar *334 reasoning, the court in Carnes v. State, 725 So.2d 417 (Fla. 2d DCA 1999), concluded:
[T]he term "sister" in section 826.094 includes a half-sister. The obvious purpose of the incest statute is to address the evil of sexual intercourse between persons who are related to each other within specific degrees. A person's half-sister is as close a relative as an aunt or niece, both of which fall under the protection of the incest statute.
Id. at 418. Moreover, in Slaughter v. State, 538 So.2d 509, 512 (Fla. 1st DCA 1989), the court explained that the incest statute addresses "the violation of generally accepted societal standards involving marriage and sexual intercourse between persons related within the specified degrees. Society's interests in prohibiting incest include the prevention of pregnancies which may involve a high risk of abnormal or defective offspring."
In Hendry v. State, 571 So.2d 94 (Fla. 2d DCA 1990), the only Florida case addressing incest and adoption, the court held that the adoption statute, section 63.172, cannot erase the biological fact of lineal consanguinity and, therefore, a man can be convicted of incest for having sex with his biological daughter even though the daughter had been adopted by a third party prior to the intercourse.
We note that the Florida courts have historically defined the crime of incest with reference to marriage statutes, which prohibited marriage within certain degrees of consanguinity. As early as 1908, the Florida Supreme Court explained that "[i]ncest is sexual intercourse between persons so nearly related to each other that marriage between them would be unlawful." McCaskill, 45 So. at 843. The statutes in effect at that time, quoted by the court in McCaskill, were similar to the provisions currently in effect:
The statutes of this state provide that: "Persons within the degrees of consanguinity within which marriages are prohibited or declared by law to be incestuous and void who intermarry or commit adultery or fornication with each other, shall be punished by imprisonment in the state prison not exceeding twenty years, or in the county jail not exceeding one year." "A man may not marry any woman to whom he is related by lineal consanguinity, nor his sister, nor his aunt, nor his niece. A woman may not marry any man to whom she is related by lineal consanguinity, nor her brother, nor her uncle, nor her nephew." Sections 2601 and 2602 Rev. Stats. of 1892, sections 3524 and 3525 Gen. Stats, of 1906.
Id. at 844. We further note that the laws enacted in other states have defined the crime of incest with reference to the statute defining the degrees of consanguinity within which marriage was prohibited. See, e.g., S.D. Codified Laws § 22-22A-2 (2008) (defining incest as being between persons related "within degrees of consanguinity within which marriages are, by the laws of this state, declared void. . . ."). Therefore, section 741.21, Florida's current statute defining and prohibiting incestuous marriage, is relevant to our interpretation of section 826.04. Section 741.21, Florida Statutes (2006), provides: "A man may not marry any woman to whom he is related by lineal consanguinity, nor his sister, nor his aunt, nor his niece. A woman may not marry any man to whom she is related by lineal consanguinity, nor her brother, nor her uncle, nor her nephew." From the plain language of sections 741.21 and 826.04, it is clear that the legal definition of incest is limited to persons who are related either by lineal consanguinity or collateral consanguinity. It does not extend to persons who are related by affinity or adoption, but not biologically by blood.
We are not alone in our conclusion. Numerous decisions rendered by courts in *335 other states hold that incest does not encompass conduct between persons related only by adoption. See, e.g., People v. Kaiser, 119 Cal. 456, 51 P. 702, 703 (1897) ("The word `daughter' means, and is generally understood to mean, `an immediate female descendant,' and not an adopted daughter, a step-daughter, or a daughter in law."); State v. Lee, 196 Miss. 311, 17 So.2d 277 (1944) (defendant could not be convicted of incest with an adopted daughter); State v. Rogers, 260 N.C. 406, 133 S.E.2d 1, 3 (1963) (recognizing that the statutory crime of incest is not applicable to a sexual relationship between a man and his adopted daughter); State v. Youst, 74 Ohio App. 381, 59 N.E.2d 167 (1943) (statutory crime of incest is not applicable to a sexual relationship between a man and his adopted daughter); State v. Bale, 512 N.W.2d 164, 166 (S.D.1994) (holding that sexual penetration between an adoptive parent and child is not incest; explaining that "[t]he legislature could have easily prohibited sexual relations between relatives by affinity and by adoption, but did not do so.").[2]
We conclude that Beam cannot be convicted of incest with the victim by virtue of his being her "uncle-in-law" because relations by affinity are not included within the purview of incest as proscribed in section 826.04. The fact that Beam adopted the victim does not alter the biological fact that she was not related to him by consanguinity. Based on the foregoing, the judgment and sentence as to Count XI must be vacated. The judgment and sentence as to Count X is affirmed.
AFFIRMED in part; REVERSED in part; REMANDED.
PALMER, C.J. and TORPY, J., concur.
NOTES
[1] Beam was charged with several crimes against the victim in a multi-count information. The jury acquitted Beam on Counts I through IX. Count X alleged that Beam committed sexual battery upon a person over the age of 12 by use of threats of retaliation, and Count XI alleged that Beam committed incest. The jury found Beam guilty of the crimes alleged in those two counts, and Beam was sentenced to 20 years' imprisonment followed by five years' probation on Count X, concurrent with five years' imprisonment followed by five years' probation on Count XI.
[2] The State's reliance on the Connecticut Supreme Court's decision in State v. George B., 258 Conn. 779, 785 A.2d 573 (2001), is misplaced. The State urges that the court's holding in George B. that incest encompasses adopted as well as blood relatives is persuasive because the Connecticut adoption statute is similar to section 63.172, Florida Statutes, which provides in relevant part:
(1) A judgment of adoption, whether entered by a court of this state, another state, or of any other place, has the following effect:
. . . .
(c) Except for rights of inheritance, it creates the relationship between the adopted person and the petitioner and all relatives of the petitioner that would have existed if the adopted person were a blood descendant of the petitioner born within wedlock. This relationship shall be created for all purposes, including applicability of statutes, documents, and instruments, whether executed before or after entry of the adoption judgment, that do not expressly exclude an adopted person from their operation or effect.
§ 63.172(1)(c), Fla. Stat. (2006). While the State is correct that the two adoption statutes are similar, the State overlooks the fact that Florida's incest statute is significantly different from the Connecticut statute on the same subject. Critically, in Connecticut, incest is not limited strictly to blood relations, but extends to certain specified step-relations; for example, a man may not marry or have intercourse with his stepmother or stepdaughter, and a woman may not marry or have intercourse with her stepfather or stepson. See Conn. Gen.Stat. §§ 46b-21, 53a-72a (2008). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601794/ | 1 So.3d 326 (2009)
STATE of Florida, Appellant,
v.
William F. McCARTNEY, III, Appellee.
No. 4D07-5071.
District Court of Appeal of Florida, Fourth District.
January 21, 2009.
Bill McCollum, Attorney General, Tallahassee and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender and Timothy D. Kenison, Assistant Public Defender, West Palm Beach, for appellee.
PER CURIAM.
Defendant was charged with first-degree murder as a result of a death caused by an overdose of methadone which was sold to the victim by defendant. The trial court granted defendant's motion to dismiss, because methadone is not a drug enumerated under the statute which was the basis of the charge, and the state appeals. We affirm.
The charge was first-degree felony murder under 782.04(1)(a)3, Florida Statutes, which provides:
(1)(a) The unlawful killing of a human being:
* * *
*327 3. Which resulted from the unlawful distribution of any substance controlled under s. 893.03(1), cocaine as described in s. 893.03(2)(a)4., or opium or any synthetic or natural salt, compound, derivative, or preparation of opium by a person 18 years of age or older, when such drug is proven to be the proximate cause of the death of the user, is murder in the first degree and constitutes a capital felony, punishable as provided in s. 775.082.
Defendant moved to dismiss arguing that methadone was not a Schedule I drug set out in section 893.03(1). The state acknowledged that methadone is not a Schedule I drug, but argued that it is a "synthetic of opium" under section 782.04(1)(a)3.
The trial court conducted an evidentiary hearing in which defendant presented the testimony of Dr. Rich Bateh, a clinical laboratory consultant in chemistry and toxicology. He was of the opinion that methadone is not an opium, a synthetic salt, compound or salt, compound derivative or preparation of opium. Nor is methadone a natural salt, compound, derivative or preparation of opium. Dr. Bateh classified methadone as an opioid, which means that it acts on the human body in a manner similar to opium or opium derivatives.
Dr. Gunther Hochhaus, a professor of pharmaceutics at University of Florida, testified on behalf of the state. He agreed that methadone is an opioid, which has a chemical structure entirely different from opiates such as morphine or heroin. He acknowledged that the College of Pharmacy at the University of Florida had produced a letter stating that methadone was a synthetic opium or a derivative of opium, but he concluded that the letter was scientifically incorrect. In his opinion there was no such thing as a synthetic of opium, because it is not feasible to synthesize opium.
In spite of the testimony of its own expert, the state argues that methadone is synthetic opium. We cannot agree. Although it is unnecessary to our conclusion, we would note that the legislature included methadone in the same statute, but rather than include it as a Schedule I substance under which appellee was charged, it included it as a Schedule II substance under section 893.03(2)(b)14.
Affirmed.
GROSS, C.J., POLEN and STEVENSON, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598447/ | 526 N.W.2d 406 (1995)
REINSURANCE ASSOCIATION OF MINNESOTA, Respondent,
v.
Ralph Edward HANKS, Appellant,
Brenda Bauman, individually and as mother and natural guardian of Crystal Hanks, Appellant.
No. C3-94-990.
Court of Appeals of Minnesota.
January 24, 1995.
Review Granted March 29, 1995.
*407 Steven R. Schwegman, Molly J. Wingate, Quinlivan, Sherwood, Spellacy & Tarvestad, P.A., St. Cloud, for respondent.
John P. Clifford, Meshbesher & Spence, Ltd., Minneapolis, for Ralph Edward Hanks.
Perry A. Berg, Patton, Hoversten & Berg, P.A., Waseca, for Brenda Bauman.
Considered and decided by KLAPHAKE, P.J., and LANSING and AMUNDSON, JJ.
OPINION
LANSING, Judge.
This is a declaratory judgment action to determine whether a child is excluded from her non-custodial parent's liability coverage under a farm multi-peril policy. We reverse the judgment excluding the child from coverage because the policy language applied to the facts of this case results in an ambiguity that is resolved against the insurer.
FACTS
Crystal Hanks was injured while mowing the lawn at her father's farm during scheduled visitation. She has lived with her mother, Brenda Bauman, since her parents divorced in 1984. Following the accident, Bauman, both individually and as Crystal Hanks's mother, filed a negligence suit against Hanks. Hanks sought liability coverage under his farm multi-peril policy under-written by the Reinsurance Association of Minnesota (insurer) and tendered the defense to the insurer. The insurer accepted the defense under a reservation of rights and sought a declaratory judgment on whether the policy covered the suit.
The insurer moved for summary judgment, arguing that the policy excluded Crystal Hanks from coverage. Brenda Bauman made a cross motion for summary judgment arguing that Crystal Hanks was included within the definition of an insured. The district court denied both motions for summary judgment and the parties proceeded to trial.
The district court submitted two fact issues to the jury: whether Crystal Hanks was a resident relative of her father and whether she was in the care of her father when injured. The jury returned a special verdict finding that Crystal Hanks was not a resident relative of Hanks but that she was in his care at the time of the accident. The district court entered judgment declaring Crystal Hanks to be excluded from coverage under her father's liability coverage.
ISSUE
Did the district court err by interpreting the policy to exclude Crystal Hanks?
*408 ANALYSIS
The interpretation of insurance contract language is a question of law which we review de novo. Grossman v. American Family Mut. Ins. Co., 461 N.W.2d 489, 493 (Minn.App.1990) (citing Iowa Kemper Ins. Co. v. Stone, 269 N.W.2d 885, 887 (Minn. 1978)). Bauman argues that the policy language listing exclusions to personal liability coverage is ambiguous and thus should not be construed to bar Crystal Hanks's suit against her father for personal injuries. The insurer, relying on this court's interpretation of an identical exclusion in Marschall v. Reinsurance Ass'n of Minnesota, 447 N.W.2d 460, 462 (Minn.App.1989), asserts that the language is not ambiguous and that Marschall is dispositive.
We reject the insurer's argument that Marschall is dispositive. Although Marschall interpreted the identical provision, it did so on different facts. The policy provision at issue denies liability coverage for bodily injury to
you and, if residents of your household, your relatives, and any other person under the age of 21 in your care or in the care of your resident relatives.
The Marschall court found that the commas before "if" and after "relatives" created a second category of excluded claimants that is "unaffected by words limiting the third category." Id. Because Marschall involved a resident child of the named insured, that child was unambiguously excluded as a resident relative.
But the facts of this case involve a nonresident family member. The question on these facts is whether a relative who is not a resident fits into the categories of excluded claimants. Reading the language as it is punctuated in this section, the comma after "relatives" prevents the residency requirement from applying to the final category of other people under the age of 21 in the insured's care. This reading would appear to defeat the anti-collusion policy goal of household exclusions. See Martin J. McMahon, Annotation, Validity, Under Insurance Statutes, of Coverage for Injury to or Death of Insured's Family or Household Members, 52 A.L.R.4th 18, 24 (1987). Moreover, the punctuation introduces an ambiguity about whether the term "other" contrasts to relative or resident. This leads to the further ambiguity of whether nonresident relatives may constitute an exception to the exclusion. Without the comma, the exclusion achieves the purpose of household exclusions and clearly creates two categories of excluded household members, namely relatives and others.
The ambiguity about whether a nonresident relative is excluded by this policy is heightened when the punctuation of this provision is compared to the punctuation in the definition of "insured." This clause contains identical language but dissimilar punctuation to define the insured as
you and, if residents of your household, your relatives and any other person under the age of 21 in your care or in the care of your resident relatives.
A plain reading of `any relative and any dependent person in your care' refers to two distinct groups that are entitled to coverage, given residency in the household. Allstate Ins. Co. v. Tomaszewski, 447 N.W.2d 849, 850 (Mich.App.1989).
Although the complex language of the two policy provisions are identical, the contradictory use of the comma appears to reciprocally exclude coverage for nonresident relatives in both provisions. Insurance policies should be interpreted as a whole, see Henning Nelson Constr. Co. v. Fireman's Fund Am. Life Ins. Co., 383 N.W.2d 645, 652 (Minn.1986), with a phrase in one part of a policy presumed to have the same meaning in another part absent language to the contrary. 2 Mark S. Rhodes, Couch on Insurance, § 15:13 (2d ed. rev. ed. 1984). The policy provisions create an internal inconsistency which disadvantages the policy holder and provides an undue advantage to the contract drafter. The policy, as it is written, requires courts to violate rules of interpreting exclusion language narrowly by forcing them to read the 29 words in the inclusion clause narrowly and the same 29 words in the exclusion clause broadly. See Continental Cas. Co. v. Reed, 306 F.Supp. 1072, 1076 (D.Minn. 1969) (policy words of inclusion should be *409 viewed broadly while words of exclusion should be considered narrowly).
The structure of the exclusion and the contradiction between the exclusion and the definition of "insured" result in an ambiguity that we construe against the insurer. Because the insurer chooses the language of the insurance policy, the court construes policy, exclusions strictly against the insurer and in favor of the insured. Safeco Ins. Co. v. Lindberg, 380 N.W.2d 219, 222 (Minn.App. 1986), aff'd 394 N.W.2d 146 (Minn.1986). We thus read the exclusion narrowly and consistently with the underlying policy goal of household exclusions, finding that Crystal Hanks is not excluded from her father's liability coverage.
DECISION
The district court erred when it construed the exclusion provision broadly and ruled that bodily injury to a person under 21 who was not a member of the household was excluded from liability coverage.
Reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859787/ | IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-94-373-CR
WILLIE JEAN FIELDS,
APPELLANT
vs.
THE STATE OF TEXAS,
APPELLEE
FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY
NO. 93-40741-2, HONORABLE ROBERT F. B. MORSE, JUDGE PRESIDING
PER CURIAM
A jury found appellant guilty of unlawfully carrying a weapon. Tex. Penal Code
Ann. § 46.02(a) (West 1994). The court assessed punishment at incarceration for 180 days and
a $3000 fine, probated.
Appellant was represented by appointed counsel at trial and represents himself on
appeal. The transcript contains no request of a free statement of facts and the record reflects that
appellant declined appointed counsel on appeal. Neither a statement of facts from the trial nor a
brief has been filed, and appellant has not responded to this Court's notices. Tex. R. App. P.
53(m), 74(l). We conclude that appellant does not wish to prosecute this appeal and has failed to
make the necessary arrangements for filing a brief.
We have examined the record and find no matter that should be addressed in the
interest of justice. The judgment of conviction is affirmed.
Before Powers, Aboussie and B. A. Smith
Affirmed
Filed: January 18, 1995
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1922173/ | 983 So. 2d 593 (2008)
PERRY
v.
STATE.
No. 4D07-948.
District Court of Appeal of Florida, Fourth District.
July 1, 2008.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859955/ | <HTML>
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<P><SPAN STYLE="font-size: 14pt"><STRONG><CENTER>TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN</STRONG></SPAN></CENTER>
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<P><STRONG><CENTER></CENTER>
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<P><STRONG><CENTER>NO. 03-96-00162-CV</CENTER>
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<P><STRONG><CENTER></CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Simon Property Group Texas, L.P., Appellant</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>v.</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER>Travis Central Appraisal District, Appellee</CENTER>
</STRONG></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><STRONG><CENTER></CENTER>
</STRONG></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT</CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times" STYLE="font-size: 11pt"><STRONG><CENTER>NO. 94-09011, HONORABLE ORLINDA NARANJO, JUDGE PRESIDING</STRONG></SPAN><SPAN STYLE="font-family: CG Times"><STRONG></CENTER>
</STRONG></SPAN></P>
<P><SPAN STYLE="font-family: CG Times"><STRONG><CENTER></CENTER>
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<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"><STRONG>PER CURIAM</STRONG></SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times"> The parties have filed an agreed motion to reverse and remand for entry of an amended
final judgment. The parties' agreed motion is granted. Tex. R. App. P. 59(a)(1)(A). </SPAN></P>
<P><SPAN STYLE="font-family: CG Times"> The judgment of the trial court dated November 22, 1995 is reversed and the cause
remanded for entry of judgment in conformity with the parties' settlement agreement.</SPAN></P>
<BR WP="BR1"><BR WP="BR2">
<P><SPAN STYLE="font-family: CG Times">Before Justices Powers, Aboussie and Jones</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Reversed and Remanded on Agreed Motion</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Filed: October 2, 1996</SPAN></P>
<P><SPAN STYLE="font-family: CG Times">Do Not Publish</SPAN></P>
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</HTML> | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1601893/ | 361 F. Supp. 60 (1973)
Alverta Hill FRYE et al., Plaintiffs,
v.
William LUKEHARD et al., Defendants.
Civ. A. No. 73-C-9-C.
United States District Court, W. D. Virginia, Charlottesville Division.
June 11, 1973.
*61 Ronald R. Tweel, Charlottesville-Albemarle Legal Aid Society, Charlottesville, Va., for plaintiffs.
Andrew P. Miller, Atty. Gen., Richmond, Va., for defendants.
OPINION and JUDGMENT
DALTON, Chief Judge.
This case is being brought as a class action, pursuant to Rule 23(a) and 23(b) (2) of the Federal Rules of Civil Procedure,[1] jurisdiction arising under 42 U.S.C. § 1983 with plaintiffs seeking declaratory and injunctive relief under 28 U.S.C. §§ 2201-2202 against defendants who are connected with the Virginia Welfare System.
This court previously ruled in Lawson v. Brown, 349 F. Supp. 203 (W.D.Va. 1972), that the Virginia statute and regulation in question (§ 63.1-105(a) of the Virginia Code and Regulation 204.1(A) of the Manual of Policy and Procedures for Local Welfare Departments),[2] conflicts with Title IV of the Social Security Act (42 U.S.C. §§ 601-606)[3] and therefore the federal law pre-empts the Virginia statute under the Supremacy *62 Clause of the Constitution. This court did not consider the unconstitutionality of the state statute and regulation, as that would require convening of a three-judge court, but ruled on the preemption issue alone. Other courts have held that a three-judge court is not necessary to rule on the pre-emption issue solely. Garneau v. Raytheon Co., 323 F. Supp. 391 (D.C.Mass.1971); Bartlett & Co., Grain v. State Corp. Commission of Kansas, 223 F. Supp. 975 (D.C.Kan. 1963); Penagaricano v. Allen Corp., 267 F.2d 550 (1st Cir. Puerto Rico 1959).
In Lawson v. Brown, supra, this court ruled that parents eligible for financial assistance under the Virginia Aid to Dependent Children program (hereinafter referred to as ADC) should not have the aid discontinued or their applications rejected by the Virginia Department of Welfare because they have sixteen and seventeen year-old dependent children in their homes who do not regularly attend school. The federal program, Aid to Families With Dependent Children (AFDC), defines a dependent child as one who is under eighteen without the additional requirement that such person regularly attend school. [42 U.S.C. § 606(a)(2)]. Therefore the portion of the Virginia statute and regulation (see footnote 2) which requires children to regularly attend school before needy parents may be eligible for aid to dependent children sets a stricter standard than the federal act and is therefore invalid. This court found proper authority for such a ruling in Townsend v. Swank, 404 U.S. 282, 92 S. Ct. 502, 30 L. Ed. 2d 448 (1971), which held that states are not free to arbitrarily exclude people under the state act who are covered under the federal act. The Supreme Court stated:
. . . in the absence of congressional authorization for the exclusion clearly evidenced from the Social Security Act or its legislative history, a state eligibility standard that excludes persons eligible for assistance, under the federal AFDC standards violates the Social Security Act and is therefore invalid under the Supremacy Clause. We recognize that the regulations of the Department of Health, Education and Welfare seem to imply that States may to some extent vary eligibility requirements from the federal standards. However, the principal which accords substantial weight to interpretation of a statute by the department entrusted with its administration is inapplicable insofar as those regulations are inconsistent with the requirement of § 402(a)(10) [(42 U.S.C. § 602(a)(10))] that aid be furnished to "all eligible individuals." (Emphasis in the original). Townsend v. Swank, 404 U.S. 282, 92 S. Ct. 502, 505, 30 L. Ed. 2d 448, 453 (1971).
After this court granted relief to the plaintiffs in Lawson v. Brown, supra, a bill (# 1515) was proposed in the January 1973 session of the General Assembly to correct § 63.1-105 of the Virginia Code, but the proposed amendment was not passed. Therefore the State of Virginia continues to adhere to the policy expressed in § 63.1-105 and Regulation 204.1(A), contrary to the federal law expressed in 42 U.S.C. §§ 602(a) and 606(a)(2). The issues which this court will consider are whether to make this case a class action, and, whether to issue the appropriate injunction to the state welfare department.
Plaintiffs Alverta Hill Frye and Melvin Wendall Frye, proceeding in forma pauperis, are respectively a mother and her seventeen year-old son who are residents of Stanardsville, Virginia. The mother has been denied assistance under the Virginia ADC because her child is over sixteen and under eighteen years of age and is not presently attending school. Plaintiffs allege that the ADC grant which Mrs. Frye had been receiving previously was terminated on June 1, 1972 by the Greene County Welfare Department. Since this complaint was filed, other parties have filed a motion to intervene as plaintiffs, alleging similar facts and circumstances. Mildred J. Cardwell, her infant daughter Cynthia Anne Cardwell, and Dolly May *63 Shiflett and her infant son Robby Lee Shiflett filed a motion to intervene on May 8, 1973, and allege that they are members of the class on whose behalf this cause of action is instituted and are parents of children who have been denied aid to dependent children because their children are sixteen and seventeen years of age and not regularly attending school. This court grants Mrs. Cardwell, her daughter Cynthia, and Mrs. Shiflett and her son Robby permission to intervene in forma pauperis in the present action.
Plaintiffs seek to proceed as a class and ask this court to 1) declare Virginia Code § 63.1-105 and Regulation 204.1(A) void; 2) enjoin the defendants from accepting any further federal funds so long as they deny assistance to persons eligible under 42 U.S.C. § 606; 3) enjoin the enforcement of § 63.1-105 and Regulation 204.1(A); 4) enjoin defendants from disbursing ADC benefits already denied plaintiffs; 5) grant plaintiffs their costs and additional relief. Plaintiffs claim that they have been denied equal protection of the laws under the Fourteenth Amendment to the Constitution and that Title IV of the Social Security Act is supreme.
Defendant William Lukehard is the Director of the Virginia Department of Welfare and Institutions. Defendants Wheeler, Trice, Ashe, Gray, Mays, Penn, Allen, Cohen and Hough are all members of the Board of Welfare and Institutions. Defendant James Keenan is the Director of the Greene County Department of Welfare. All defendants, save Keenan, filed an answer and motion to dismiss the complaint. Defendants deny that this is a class action and state that they are required by law to enforce the provisions of § 63.1-105 of the Code of Virginia. They deny that they apply the law in a discriminatory manner and state that the law is not in violation of the Virginia Constitution or the U. S. Constitution. Defendants seek to dismiss the action and state that plaintiffs, if entitled to relief, are not entitled to retroactive payments because such relief would be against the Commonwealth and is prohibited by the Eleventh Amendment to the United States Constitution. Defendant Wheeler states that he is no longer a member of the Virginia Board of Welfare and Institutions, and therefore this court dismisses him from this suit.
The court will now consider the issue of whether this case should proceed as a class action. In Lawson v. Brown, supra, this court denied the class action because of the difficulty in determining the class and the notice requirement. However, upon reconsideration, in order to prevent the continual filing of similar suits by other needy parents with sixteen and seventeen year-old dependent children, and in order to provide the proper federal and state benefits as provided by law, this court now grants plaintiffs' motion for leave to proceed as a class action. The members of the class are all sixteen and seventeen year-old children not regularly attending school and the supporting parents of these children to whom ADC relief has been denied. The prerequisites to a class action under Rule 23 have been met by plaintiffs. The members of the class are so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, the plaintiffs' claims are typical of the claims of every member of the class, and the plaintiffs will fairly and adequately protect the interests of the class. Furthermore, plaintiffs file under Rule 23(b)(2) which does not require that notice be given to the members of the class.
For the same reasons stated in Lawson v. Brown, supra, outlined in the beginning of this opinion, the court orders that relief be given to the plaintiffs. While it is beyond the authority of a single federal judge to declare a state law unconstitutional, this court declares that § 63.1-105(a) of the Code of Virginia and Regulation 204.1 of the Manual of Policy and Procedures for Local Welfare Departments are pre-empted by 42 U.S.C. §§ 602(a) and 606(a)(2), *64 which allows financial aid to sixteen and seventeen year-old children, whether or not they regularly attend school. Therefore, the court enjoins defendants from enforcing § 63.1-105(a) and Regulation 204.1 insofar as they conflict with Title IV of the Social Security Act, 42 U.S.C. §§ 601-604.
Defendants argue against retroactive payments since such relief is prohibited by the Eleventh Amendment to the Constitution. The Eleventh Amendment reads as follows:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The Supreme Court extended this immunity to suits against a state by citizens of the same state in Hans v. Louisiana, 134 U.S. 1, 10 S. Ct. 504, 33 L. Ed. 842 (1890). However, under the doctrine of Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), the Eleventh Amendment or sovereign immunity is no bar to a federal court's ordering state welfare officials to bring their conduct into conformity with federal law. Jordan v. Weaver, 472 F.2d 985, 990 (7th Cir. 1973). In Ex Parte Young, 209 U.S. 123, 160, 28 S. Ct. 441, 454, 52 L. Ed. 714 the Supreme Court surmounted the Eleventh Amendment objection by resorting to the fiction that when a state official seeks to enforce a state law which conflicts with paramount federal law, "he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct." The State official can therefore be said to be "stripped of his official or representative character" when ordered to pay out benefits he withheld in violation of federal law, as he was acting unconstitutionally when he withheld the benefits. By resorting to this fiction, the Supreme Court in Ex Parte Young was able to avoid the restrictions of the Eleventh Amendment, since the suit was no longer considered to be against the state. Therefore, this court sees no reason why the Virginia Welfare Department should not pay damages, in the form of restitution, to the plaintiffs equal in amount to the retroactive benefits unconstitutionally denied the plaintiffs.
Accordingly, this court orders that the defendants pay all ADC benefits constitutionally due the plaintiffs in the class, effective from the date that an individual applied for the aid and was denied it because the dependent child was not regularly attending school, provided that the individual met all other eligibility conditions at the time of his or her application. The court, in addition, enjoins the defendants from enforcing § 63.1-105(a) of the Virginia Code and Regulation 204.1 of the Manual of Policy and Procedures for Local Welfare Departments insofar as they conflict with Title IV of the Social Security Act, 42 U.S.C. §§ 601-604 (specifically 42 U.S.C. §§ 602(a) and 606(a) (2)).
The foregoing is adjudged and ordered, and each party shall pay its own costs.
NOTES
[1] Rule 23(a) Prerequisites to a Class Action.
"One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Rule 23(b) Class Actions Maintainable. "An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition:
(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole; . . ."
[2] § 63.1-105(a), Code of Virginia, 1950, as amended:
"A person shall be eligible for aid to dependent children if he: (a) has not attained the age of sixteen years, or, if regularly attending school has not attained the age of twenty-one years. . ." Regulation 204.1, Manual of Policy and Procedures for Local Welfare Departments:
"A child is eligible for Aid to Dependent Children (ADC), if he: (A) is under sixteen years of age; or, if sixteen to twenty-one years of age, is regularly attending school; or is a physically or mentally incapacitated child sixteen or seventeen years of age for whom no suitable educational opportunities are available. . ."
[3] Title IV of the Social Security Act (42 U.S.C. §§ 601-606 (applicable sections only)
§ 602(a): A State plan for aid and services to needy families with children must. . . . (10) provide, effective July 1, 1951, that all individuals wishing to make application for aid to families with dependent children shall have an opportunity to do so, and that aid to families with dependent children shall be furnished with reasonable promptness to all eligible individuals; . . ." (emphasis supplied)
§ 606(a) (2) defines a dependent child as one ". . . who is (A) under the age of eighteen, or (B) under the age of twenty-one and (as determined by the State in accordance with standards prescribed by the Secretary) a student regularly attending a school, college, or university, or regularly attending a course of vocational or technical training designed to fit him for gainful employment . . ." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2089178/ | 22 Mich. App. 170 (1970)
177 N.W.2d 457
VANDER LAAN
v.
MIEDEMA
Docket No. 6,731.
Michigan Court of Appeals.
Decided February 25, 1970.
Leave to appeal granted September 22, 1970.
Mohney, Noris, Goodrich, Titta & Carpenter, for plaintiffs.
Cholette, Perkins & Buchanan (Edward D. Wells, of counsel), for defendants.
Before: V.J. BRENNAN, P.J., and R.B. BURNS and T.M. BURNS, JJ.
Leave to appeal granted September 22, 1970. 384 Mich. 753.
V.J. BRENNAN, P.J.
This is an action to recover damages for injuries sustained by plaintiff Dorothy Vander Laan on June 24, 1965, when a truck driven by defendant Karsten and owned by defendant Miedema struck her automobile in the rear. The jury returned a verdict of no cause of action, and the trial court denied plaintiffs' motions for a new trial and a judgment notwithstanding the verdict. The plaintiffs appeal.
*173 From the evidence most favorable to the defendants,[1] it appears that Dorothy Vander Laan was driving along Aberdeen street in Grand Rapids when a truck in front of her slowed to five or so mph to shift gears before attempting an incline in the road. She followed suit, slowing to five mph a car-length or two behind. Just as she slowed, a truck two or three car-lengths behind her, the one driven by defendant Karsten, went over a dip or bump in the road. Jolted, Karsten turned his head to the side for one second to look through the outside rearview mirror and see whether he had lost his load of lumber. Finding the plaintiff's automobile moving at five mph and only 15 to 20 feet away when he turned back, he applied the brakes and swerved, but not in time to avoid a collision. Karsten testified that before the jolt he had been moving at 25 or so mph and that he did not see the plaintiff slow until after he looked ahead again, when, according to him, her brake lights first flashed. The investigating officer ticketed Karsten for violating the assured-clear-distance statute.[2]
After the close of proofs, the trial judge recited the assured-clear-distance statute and informed the jury that a motorist is prima facie guilty of negligence by statute[3] if he strikes the rear end of an automobile moving in the same direction. He then added, at the defendants' request and over the plaintiffs' objection:
"However, if you find that the defendant was confronted with a sudden emergency, not of his own making, and if you find that he used ordinary care and was still unable to avoid the violation because *174 of such emergency, then, of course, his violation is excused. If you find that the defendant violated this statute and that the violation was not excused, then you must decide whether such negligence was a proximate cause of the occurrence * * *.
"If you find that the defendant violated this statute before or at the time of the occurrence, then the law presumes that he was negligent. However, if you find that the defendant was confronted with a sudden emergency not of his own making, and if you find that he used ordinary care and was still unable to avoid the occurrence because of such emergency, then the presumption is overcome. In deciding whether the presumption is overcome, you must weigh the presumption with all the evidence of the claim of sudden emergency, and if after so weighed you are unable to decide that the presumption has been overcome, then you must find that the defendant was negligent. And if you find that the defendant was negligent, you must then decide whether such negligence was a proximate cause of of the occurrence."
The plaintiffs contend that the instruction should not have been given because 1) "sudden emergency" is an affirmative defense that is waived unless pleaded, GCR 1963, 111.3 and GCR 1963, 111.7, and defendants did not plead it, and 2) the instruction is not supported by the evidence. In opposition the defendants disagree that "sudden emergency" is an affirmative defense, contend that the instruction is supported by the evidence, and point to the jolt and Karsten's looking through the rearview mirror as the emergency.
The doctrine of sudden emergency is a "logical extension of the `reasonably prudent person' rule," and as such is not an affirmative defense. Baker v. Alt (1965), 374 Mich. 492, 496. As it was said in Baker, at p 496, the "test to be applied is what that hypothetical, reasonably prudent person would have *175 done under all the circumstances of the accident, whatever they were." Expression of the doctrine in its classic form is found in Walker v. Rebeuhr (1931), 255 Mich. 204, 206 and Paton v. Stealy (1935), 272 Mich. 57, 62:
"One who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence." (Quoted from Huddy on Automobiles [8th ed], p 359.)
See, also, Myler v. Bentley (1924), 226 Mich. 384, 386; Craddock v. Torrence Oil Company (1948), 322 Mich. 510; Loucks v. Fox (1933), 261 Mich. 338; and the jury instruction approved in Rossien v. Berry (1943), 305 Mich. 693, 703. In later cases, some of which are cited below, the doctrine has been applied to avoid the harshness sometimes created by the assured-clear-distance and rear-end collision statutes. Under either application of the doctrine, the party invoking it is entitled to a proper instruction if there is any evidence indicating that an emergency within the meaning of the doctrine existed. McKinney v. Anderson (1964), 373 Mich. 414, 420. If, on the other hand, such evidence is absent, it is error to instruct the jury that the party invoking the doctrine is not liable if they find that he acted reasonably during an emergency. See Baker v. Alt, supra, p 497. Implicit in these propositions is the authority of both the trial and appellate court to determine whether the condition said to constitute an emergency is indeed an emergency within the meaning of the doctrine. And, again, if the court determines that it is not, no instruction *176 should be given. Before turning to this question as it is presented here, we note that the instant case does not involve the doctrine in its classic form that is, beset by a dilemma not of his own making, the motorist reasonably chooses under duress an alternative less fortunate than another but rather the doctrine as it is used to define conditions that excuse a motorist from liability under the assured-clear-distance and rear-end collision statutes, thereby avoiding the harshness their application would otherwise create.
Violation of the assured-clear-distance statute is negligence per se, while violation of the rear-end collision statute is prima facie negligence. McKinney v. Anderson, supra, p 419. Whatever the practical differences attaching from this difference in labels, neither of these closely related statutes creates a liability that is indefeasible. As it has been said before, the motorist who collides with the rear of another automobile is not an insurer. Sun Oil Co. v. Seamon (1957), 349 Mich. 387, 412. If an extraordinary condition is presented, and the motorist exercised the care of a reasonable man under the condition, he is excused from liability. Patzer v. Bowerman-Halifax Funeral Home (1963), 370 Mich. 350; Hackley Union National Bank & Trust Company v. Warren Radio Company (1966), 5 Mich. App. 64. Thus, in Hendershot v. Kelly (1968), 11 Mich. App. 173, this Court approved the denial of a rear-end collision victim's motion for a directed verdict as to the defendant's liability under these statutes where the evidence showed that a third automobile, positioned between plaintiff's and defendants' in the same lane, suddenly swerved to the left, revealing to the defendant motorist plaintiff's automobile parked in the middle of the lane. The *177 defendant had no inkling that plaintiff's automobile was parked, or that it was even there.[4]
However, not every difficulty that a motorist might face is a condition that will excuse him from liability if he has acted reasonably. The condition must be extraordinary. If it is ordinary, and he should expect it, then the motorist has acted unreasonably and contrary to the requirements of the statutes in not anticipating the condition. In Van den Heuval v. Plews (1939), 291 Mich. 670, a case tried without a jury, the defendant truckdriver was held liable for striking plaintiff's automobile when, in an attempt to avoid a collision with an oncoming automobile about to turn left, he found that he could not slow his truck. The Supreme Court rejected his claim of emergency, saying, at p 672:
"[H]aving passed over this crossing weekly for approximately three years, he was bound to know that approaching cars might make left-hand turns in the intersection and was required by law to have his truck under such control that he could avoid a collision with objects in plain view. The proximate cause of the accident was Plews' negligence."
Unquestionably, it is reasonable for the driver of a truck suddenly jolted by a bump in the road to look momentarily through the rearview mirror to make sure he has not lost his load. The jury thought so in the present case, if their verdict is any indication. Thus Karsten acted reasonably under the conditions, and should be excused from liability if the condition he faced is one that would excuse him *178 from liability under the statutes. But the looking through a rearview mirror for one second, for whatever reason, is not a condition that excuses. The assured-clear-distance statute requires that a motorist remain "an assured clear distance behind." This means, we think, a distance that allows a motorist travelling a street free of heavy traffic to look through the rearview mirror for one second without colliding with the rear of an automobile that suddenly stops or slows. This construction is dictated by everyday experience, since everyday experience teaches the need for frequent rearview observation, and keeping a safe distance is but a concomitant of that need. Or, in the words used above, looking through the rearview mirror is simply not an unexpected or extraordinary condition that a motorist might face. Since it is not such a condition, we hold that the defendant Karsten was not presented with a "sudden emergency" that would excuse violation of the assured-clear-distance and rear-end collision statutes. The instruction should not have been given.
Since Karsten admits colliding with plaintiff's automobile, and the reason offered for his failure to stop in time is not one that would excuse him from liability, trial on remand shall be limited to the issue of damages. Conroy v. Harrison (1962), 368 Mich. 310.
Reversed and remanded.
All concurred.
NOTES
[1] McKinney v. Anderson (1964), 373 Mich. 414, 419; Patzer v. Bowerman-Halifax Funeral Home (1963), 370 Mich. 350, 354; Budman v. Skore (1961), 363 Mich. 458, 462.
[2] MCLA § 257.627 (Stat Ann 1968 Rev § 9.2327).
[3] MCLA § 257.402 (Stat Ann 1968 Rev § 9.2102).
[4] Similarly, in Humphrey v. Swan (1968), 14 Mich. App. 683, we said that the jury could have found a sudden emergency to exist where, according to the defendant, the plaintiff started up from a traffic light, accelerating to three or so mph, and then for no reason apparent to the defendant suddenly stopped. The plaintiff denied starting up at all and therefore did not give a reason for a sudden and allegedly unwarranted stop. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598873/ | 995 F.Supp. 983 (1998)
James W. PARKHILL, an individual, on behalf of himself and all others similarly situated, Plaintiff,
v.
MINNESOTA MUTUAL LIFE INSURANCE COMPANY, Defendant.
No. Civ. 97-515 (DSD/JMM).
United States District Court, D. Minnesota.
March 2, 1998.
*984 *985 Jack L. Chestnut, Karl L. Cambronne, Jeffrey D. Bores, Becky L. Erickson, Chestnut & Brooks, Minneapolis, MN, Barry A. Weprin, Melvyn I. Weiss, Brad N. Friedman, Milberg Weiss Bershad Hynes & Lerach, New York City, San Diego, CA, Andrew S. Friedman, Bonnett, Fairbourn, Friedman & Balint, Phoenis, AZ, Stephen L. Hubbard, Robert W. Biederman, Cantilo, Maisel & Hubbard, Dallas, TX, Ronald R. Parry, Arnzen, Parry & Wentz, Covington, KY, for Plaintiff Parkhill.
*986 Charles H. Johnson, Garrett D. Blanchfield, Jr., Heidi M. Drewes, Johnson & Associates., St Paul, MN, for Plaintiff Semanko.
Mark Reinhardt, Gavin S. Wilkinson, Jonathan S. Drage, Reinhardt & Anderson, St. Paul, MN, for Plaintiff Zeleny.
Wayne S. Moskowitz, Gary J. Haugen, Maslon Edelman Borman & Brand, Minneapolis, MN, Garold M. Felland, The Minnesota Mutual Life Insurance Co., St. Paul, MN, James F. Jorden, Waldemar J. Pflepsen, Jr., Jorden Burt Berenson & Johnson, Washington, DC, for defendant.
ORDER
DOTY, District Judge.
This matter is before the court on the motion of defendant Minnesota Mutual Life Insurance Company to dismiss, or in the alternative, for summary judgment. Based on a review of the file, record, and proceedings herein, the court grants in part and denies in part defendant's motion.
BACKGROUND
Plaintiff James W. Parkhill is a citizen and resident of the State of Florida.[1] Defendant Minnesota Mutual is a Minnesota corporation with its principal place of business in Minnesota. Defendant sells many types of whole or other permanent life insurance policies to individuals, groups, and businesses. Affidavit of Richard Lee (Docket No. 35) at ¶ 3. Plaintiff in this action seeks compensatory and equitable relief for defendant's alleged fraudulent conduct and deceptive sales scheme in the marketing and sale of "vanishing premium" policies.[2] Complaint ¶ 2. In essence, plaintiff alleges that defendant "used standardized sales presentations and `vanishing premium' policy illustrations through which consumers were persuaded that in a given number of years their need to make out-of-pocket premium payments would cease." Pl.'s Mem. of Law in Opp'n to Def.'s Mot. to Dismiss or, in the Alternative, for Summ. J. (Docket No. 30) at 1 (hereafter "Plaintiff's Memorandum"). Plaintiff alleges that defendant knew its representations were not true and that premium obligations would not "vanish" when promised. Id. at 1-2.
This is one of many actions brought nationwide against major insurance companies to recover damages allegedly sustained when the companies' promises of "vanishing" premiums failed to materialize. Unlike some other cases, plaintiff here does not allege that the illustrations shown and representations made to him indicated that payments will "vanish" after a certain number of payments. Instead, plaintiff claims that defendant represented that after an initial out-of-pocket payment no future payments would have to be made out-of-pocket. In essence, plaintiff charges that defendant promised out-of-pocket payments would "vanish."
Plaintiff first purchased insurance from defendant in 1949, buying a whole life policy with a face value of $2,500. Affidavit of James W. Parkhill (Docket No. 31) at ¶ 4. Plaintiff purchased a second whole life policy with a face value of $5,008 in 1970. Id. at ¶ 5. Plaintiff alleges that in 1986 Terry Russo, a Minnesota Mutual agent, told him that he could purchase a $30,000 Minnesota Mutual policy by using the values in his existing policies. Russo allegedly told plaintiff that he would have to make one out-of-pocket premium payment of $645.50, and thereafter all future premiums would be paid from the dividends and built-up values of his two preexisting Minnesota Mutual policies and dividends *987 accumulating in the new $30,000 policy. Id. at ¶ 7-8. Plaintiff signed an application for the policy on January 24, 1986. See Application for Insurance, Exhibit 3 to Parkhill Affidavit. Plaintiff gave Russo a check for $645.50. See Id. at Exhibit 4. Plaintiff thereafter received Policy No. 1-673-0610,[3] a five-year term "Adjustable Life" policy, which, according to defendant, is designed to allow a policyholder to request changes in premium and face amount as appropriate to the policyholder's circumstances and objectives. Lee Affidavit at ¶ 5.
Plaintiff alleges that in September 1986, he received a premium notice from defendant for $646.54. When plaintiff and his wife spoke to Russo, he allegedly told them to make a notation on the notice that defendant would pay the premium by surrendering $646.50 on the Policy. Russo allegedly told plaintiff to ignore the notice. Parkhill Affidavit at ¶ 13.
In 1988, allegedly based on Russo's representations, plaintiff upgraded his coverage to a $40,000 whole-life plan by surrendering two life insurance policies plaintiff held with another life insurance company.[4] Plaintiff alleges that Russo again told him that he would never have to make any out-of-pocket premium payments. Id. at ¶ 16-17. Plaintiff asserts that he would not have purchased the $30,000 policy nor increased his coverage to $40,000 if Russo had not represented that there would be no additional out-of-pocket expenses after the initial premium payment. Id. ¶ 20.
Plaintiff made no out-of-pocket premium payments from 1988 through 1994, based on the alleged representation of a Minnesota Mutual agent[5] to ignore all premium notices. On July 19, 1994, plaintiff changed the ownership of Policy No. 1-673-0610 from his wife to the James P. Parkhill and Mary Frances Parkhill Trust. Although plaintiff himself has never been the owner of the policy, he was at all times the individual responsible for making premium payments.
In February 1994, plaintiff alleges that he was informed for the first time that unless he started making out-of-pocket premium payments his Minnesota Mutual policy would lapse. He contends that he began making annual out-of-pocket payments of $1,200 to keep his policy in effect. Id. at ¶ 25. Defendant complained to the Florida Department of Insurance. In June 1995, however, plaintiff wrote to a Mr. Cummings of the Department of Insurance and thanked him for his efforts. The letter indicates that "I believe my insurance [situation] is solved. The lack of information was the main thing. Now I understand how the policy works." See Exhibit 13 to Parkhill Affidavit. According to plaintiff, "[i]n this letter I was only expressing that I now understood what had happened to me. The letter was not written to mean that I was satisfied with my situation." Parkhill Affidavit at ¶ 24.
Plaintiff filed this action in Hennepin County District Court on February 4, 1997, alleging, in general, that defendant's uniform sales presentations promised policies that could be purchased with a single, lump-sum payment or with a stated number of out-of-pocket annual premium payments, after which no additional out-of-pocket payments would be required. Plaintiff asserts that due to defendant's misrepresentations, he and other class members were fraudulently induced to submit applications for insurance and tender premium payments to defendant. *988 Complaint ¶ 13-14. Plaintiff pleads thirteen causes of action: (1) fraud; (2) fraudulent inducement; (3) breach of contract; (4) breach of fiduciary duty/constructive fraud; (5) tortious breach of duty to deal with insured in good faith; (6) negligence; (7) negligent misrepresentation; (8) unjust enrichment and imposition of a constructive trust; (9) deceptive trade practices in violation of Minn.Stat. § 325D.43-325D.48; (10) false advertising in violation of Minn.Stat. § 325F.67; (11) consumer fraud in violation of Minn.Stat. § 325F.68-325F.70; (12) declaratory relief; and (13) reformation. Defendant removed this case to federal court on March 6, 1997, and now brings this motion to dismiss, or in the alternative, for summary judgment.
DISCUSSION[6]
Defendant entitles its motion as a "Motion to Dismiss, or in the Alternative, Motion for Summary Judgment." Fed.R.Civ.P. 12(b) indicates that
If, on a motion asserting the defense numbered [12(b)(6)] to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56.
Defendant has submitted the affidavits of Waldemar J. Pflepsen, Jr., and Richard Lee and attached documentation in support of its motion. In response, plaintiff has submitted his own affidavit, "in the event the Court deems Minnesota Mutual's motion to be a motion for summary judgment." Plaintiff's Memorandum at 2. In its memorandum, recognizing the possibility that the court would construe defendant's motion as one for summary judgment, plaintiff provides the standards to be utilized by the court in deciding both a motion to dismiss under Fed. R.Civ.P. 12(b)(6) and a motion for summary judgment under Fed.R.Civ.P. 56. Because the court has considered the factual material contained in the affidavits of both parties, and because plaintiff has had the opportunity to respond to the affidavits submitted by defendant, the court will treat defendant's motion as one for summary judgment under Fed.R.Civ.P. 56. See George v. City of St. Louis, 26 F.3d 55, 57 (8th Cir.1994) (court properly treated defendant's motion to dismiss as one for summary judgment where defendant's motion was worded in the alternative and plaintiffs themselves submitted to the court matters outside the pleadings).
a. Standard for Summary Judgment
The court should grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). This standard mirrors the standard for judgment as a matter of law under Federal Rule of Civil Procedure 50(a), which requires the trial court to enter judgment as a matter of law if there can be but one reasonable conclusion as to the verdict. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is material only when its resolution affects the outcome of the case. Id. 477 U.S. at 248. A dispute is genuine if the evidence is such that it could cause a reasonable jury to return a verdict for either party. Id. at 252. There is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id. at 249.
On a motion for summary judgment, the court views the evidence in favor of the nonmoving party and gives that party the benefit of all justifiable inferences that can be drawn in its favor. Id. at 250. The nonmoving party, however, cannot rest upon mere denials or allegations in the pleadings. Nor may the nonmoving party simply argue facts supporting its claim will be developed later or at trial. Rather the nonmoving party must set *989 forth specific facts, by affidavit or otherwise, sufficient to raise a genuine issue of fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If reasonable minds could differ as to the import of the evidence, judgment as a matter of law should not be granted. See Anderson, 477 U.S. at 250-51. If a plaintiff fails to support an essential element of a claim, however, summary judgment must issue because a complete failure of proof regarding an essential element renders all other facts immaterial. Celotex, 477 U.S. at 322-23.
b. Common law Claims
1. Choice of Law
Although defendant is a Minnesota corporation with its principal place of business in this state, plaintiff is a Florida resident and the policy at issue was purchased in Florida. Defendant therefore argues that Florida law applies to plaintiff's common law tort and contract claims. Def.'s Mem. in Supp. of its Mot. to Dismiss, or in the Alternative, Mot. for Summ. J. (Docket No. 34) at 8 n. 5 (hereafter "Defendant's Memorandum"). Plaintiff points out that defendant has not demonstrated any difference between Minnesota and Florida law that would materially alter the outcome of this case, and contends that the court need not make a choice-of-law determination and may look to the law of both interested jurisdictions. Plaintiff's Memorandum at 6 n. 4. The court in Force was faced with the same situation, and determined that it would "generally apply Florida substantive law to the Plaintiff's common law claims, but is constrained to do so only when that law differs materially from the substantive law of Minnesota.... To the extent that Minnesota law is consistent with Florida law, the Court may apply either body of substantive law." Force, ___ F.Supp. at ___ - ___. See also Phillips v. Marist Soc. of Washington Province, 80 F.3d 274, 276 (8th Cir.1996) (finding that when the relevant laws of two different jurisdictions do not differ, the court need not engage in a choice-of-law analysis). The court agrees with the approach taken in Force, and will follow it.
2. Count III (Breach of Contract)
In Count III, plaintiff alleges that after defendant entered into an agreement[7] with plaintiff in which it promised that a single out-of-pocket premium payment at the time of purchase of the policy would generate sufficient value to fund the cost of the policy, defendant breached this agreement by demanding additional out-of-pocket payments. See Complaint ¶ 74-79. Defendant proffers two defenses. First, defendant contends that the parol evidence rule and the express language of plaintiff's policy precludes a claim for breach of contract. In addition, defendant argues that plaintiff has waived his right to bring a breach of contract claim. Plaintiff responds that the parol evidence rule does not apply in this case because: (1) defendant's representations do not contradict the policy; (2) the policy is not fully integrated; (3) the policy provisions that defendant relies on are ambiguous; and (4) the parol evidence rule does not operate in the presence of fraud. Not surprisingly, plaintiff also contends that he has not waived his right to seek contract damages.
The plaintiff's policy contains the following integration clause:
Your policy, or any reissue of it, contains the entire contract between you and us. This includes the initial application and all subsequent applications to reissue your policy.... No change or waiver of any of the provisions of this policy will be valid unless made in writing by us and signed by our president, a vice president, our secretary or an assistant secretary. No agent or other person has the authority to change or waive any provisions of your policy.
Exhibit 7 to Lee Affidavit at 0064.
As generally stated, the parol evidence rule provides that "the terms of a valid written contract or instrument cannot be varied by a verbal agreement or other extrinsic evidence where such agreement was made before or at the time of the instrument in question. The rule inhibits the use of parol *990 evidence to contradict, vary, defeat, or modify a complete and unambiguous written instrument, or to charge, add to, or subtract from it, or affect its construction." J.M. Montgomery Roofing Co. v. Fred Howland, Inc., 98 So.2d 484, 485-86 (Fla.1957) (quotations and citation omitted). See also Gutierrez v. Red River Distributing, Inc., 523 N.W.2d 907, 908 (Minn.1994) ("The parol evidence rule makes inadmissible evidence concerning discussions prior to or contemporaneous with the execution of a written instrument when that evidence contradicts or varies the terms of the written instrument.") (quotations and citation omitted).
As an initial matter, the court finds that defendant's oral representations to plaintiff concerning the "vanish point" do not contradict the language of the policy. The policy calls for annual premium payments, a fact plaintiff does not contest. Instead, plaintiff claims that defendant represented that after an initial out-of-pocket payment all remaining premium payments were to be paid from dividends and the value of his two prior policies. Parkhill Affidavit at ¶ 8. The court agrees with plaintiff that "Minnesota Mutual's representation that Mr. Parkhill would have to make only one premium payment out of pocket neither varies nor contradicts the writing, but is entirely consistent with the Policy itself." Plaintiff's Memorandum at 18-19. While the policy dictates that it "contains the entire contract between you and us," that policy does not indicate the source of premium payments.
From the foregoing, it is perhaps axiomatic that the court also finds the policy in question ambiguous as to the source of premium payments. If the language of a contract creates an ambiguity, parol evidence is admissible to explain or clarify the intention of the parties. Gutierrez, 523 N.W.2d at 908 ("`[W]here a written contract is ambiguous or incomplete, evidence of oral agreements tending to establish the intent of the parties is admissible.'") (quoting Material Movers, Inc. v. Hill, 316 N.W.2d 13, 17 (Minn.1982)); Royal Continental Hotels, Inc. v. Broward Vending, Inc., 404 So.2d 782, 783-84 (Fla. Dist.Ct.App.1981), rev. denied, Nov. 3, 1981; Royal Am. Realty, Inc. v. Bank of Palm Beach & Trust Co., 215 So.2d 336, 338 (Fla. Dist.Ct.App.1968). The Minnesota Mutual policy at issue here does not address how premiums are to be paid. There is thus an ambiguity in the contract, and parol evidence is admissible to explain the parties' intent.[8]
Defendant's argument that plaintiff has waived his right to bring a breach of contract claim also fails. Defendant argues that because any alleged breach occurred in 1986 when the policy requiring periodic premiums was issued, and plaintiff paid premiums that became due in ensuing years, he has waived his breach of contract claim. This argument ignores the fact that the premium payments made by plaintiff were not out-of-pocket, but instead were paid by dividends and the value of existing policies. Plaintiff therefore had no reason to believe that any breach had occurred. Plaintiff's claim did not arise until 1994, when he was required for the first time to make an additional out-of-pocket payment to sustain his policy.[9]
Evidence of defendant's oral representations and illustrations is not barred by the parol evidence rule, and plaintiff has not waived his right to bring a breach of contract claim. Not only is such a claim therefore cognizable, but summary judgment is not warranted given the fact-specific nature of what defendant allegedly promised.
*991 3. Count IV (Breach of Fiduciary Duty)
Count IV alleges that defendant held a special relationship with plaintiff because defendant's agent held himself out to plaintiff as an expert and confidant, defendant is a mutual company, owned by its policyholders, including plaintiff, and plaintiff had a prior relationship with defendant which defendant abused. Complaint ¶ 81. Plaintiff alleges that defendant owed plaintiff fiduciary duties, "including a duty of good faith and fair dealing, a duty of full disclosure, and a duty of care arising out of its relationship with plaintiff." Complaint ¶ 82. Defendant contends that no fiduciary relationship exists between an insurer or insurance agent and a prospective insured before an insurance contract is formed, and that "[i]t is well-settled that the relationship between insurance companies and their policyholders is arm's length in nature not fiduciary." Defendant's Memorandum at 16. Instead, argues defendant, the provisions of a life insurance contract govern the rights and duties of the parties, and these provisions impose no extra-contractual duties on the insurer and do not create a fiduciary relationship. Id.
Defendant suggests that a per se rule exists precluding the existence of a fiduciary relationship between an insurer and its insureds. The court has failed to find caselaw, however, to support such a rule. Indeed, in both Florida and Minnesota the existence of a fiduciary relationship is a question of fact dependent on the circumstances of each individual case. See Toombs v. Daniels, 361 N.W.2d 801, 809 (Minn.1985) ("The existence of a fiduciary relationship is a question of fact."); Murphy v. Country House, Inc., 307 Minn. 344, 240 N.W.2d 507, 512 (1976) (same); Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla.Dist.Ct.App.1994), rev. denied, 654 So.2d 918 (1995) ("Fiduciary relationships implied in law are premised upon the specific factual situation surrounding the transaction and the relationship of the parties. ... Courts have found a fiduciary relation implied in law when `confidence is reposed by one party and a trust accepted by the other.'") (citing Dale v. Jennings, 90 Fla. 234, 107 So. 175, 179 (1925)). Although an old case, Dale best refutes defendant's argument:
Courts of equity have carefully refrained from defining the particular instances of fiduciary relations in such a manner that other and perhaps new cases might be excluded. It is settled by an overwhelming weight of authority that the principle extends to every possible case in which a fiduciary relation as a fact exists, in which confidence is reposed on one side and there is resulting superiority and influence on the other, and the relation and duties involved in it need not be legal, but may be moral, social, domestic, or merely personal.
Dale, 107 So. at 179. Indeed, the changing nature of the insurance industry gives new vigor to this fact-specific analysis. As have other courts, this court finds noteworthy Judge Sand's observations in Dornberger v. Metropolitan Life Ins. Co., 961 F.Supp. 506 (S.D.N.Y.1997). There, the court, applying New York law, rejected the argument that no fiduciary relationship exists as a matter of law between an insurer and its insured. Dornberger, 961 F.Supp. at 546-47. The court concluded that New York courts would permit a jury to assess the relationship between an insurer and insured to determine if it is one of trust and confidence.[10]Id.
Defendant includes in its brief an appendix presenting cases from twenty-three states purportedly holding that no fiduciary relationship exists between an insurer and an insured in the sale of an insurance policy.[11]*992 Notably absent from the list, however, is caselaw from either Minnesota or Florida. While defendant urges the court to extend the "uniform approach in other jurisdictions" to this case, it is not this court's role to fashion such a per se rule. Instead, like the court in Force, the court will apply the basic law that the existence of a fiduciary relationship is a question of fact.
Plaintiff has made allegations that present such a question of fact whether a fiduciary relationship existed in this case. For instance, when Russo sold plaintiff the policy at issue, plaintiff was already a policyholder of Minnesota Mutual. In fact, plaintiff owned two policies, purchased in 1949 and 1970, and a 37 year pre-existing relationship existed between plaintiff and defendant. Because defendant is a mutual life insurance company, it is owned by its policyholders. Thus, defendant may owe its policyholders a heightened duty of trust and confidence. Finally, the relative positions of plaintiff and Russo when Russo presented the policy at issue to plaintiff is to be considered. For these reasons, summary judgment on Count IV must be denied.[12]
4. Count V (Tortious Breach of Duty to Deal with Insured in Good Faith)
Defendant argues that Count V of the Complaint, entitled "Tortious Breach Of Duty To Deal With Insured In Good Faith," should be barred by Florida's economic loss rule. In the Complaint, plaintiff alleges that
[i]n connection with the Policies of insurance issued to plaintiff and to members of the Class, a duty of good faith and fair dealing existed, and continues to exist, such that Minnesota Mutual was under a duty to do nothing to impair or frustrate the rights of plaintiff and members of the Class to receive the benefits they had been promised.
Complaint ¶ 87. Plaintiff alleges defendant breached this duty of good faith and fair dealing
[b]y misrepresenting the benefits to be received by plaintiff and Class members under the Policies of insurance which Minnesota Mutual issued to plaintiff and class members, and by failing to disclose material facts adversely affecting those benefits[.]
Complaint ¶ 88. Defendant contends that plaintiff is seeking to recover the benefit of his alleged bargain with defendant, and this claim is therefore barred by the economic loss rule. Plaintiff agrees that the claim sounds in contract, contends that the claim is therefore not barred by the economic loss rule, and offers to amend his Complaint to reflect the contractual nature of the claim.
Florida's economic loss rule proscribes, absent personal injury or property damage, tort claims for economic damages flowing from a breach of contract. HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238, 1239 (Fla.1996) ("Where a contract exists, a tort action will lie for either intentional or negligent acts considered to be independent from acts that breached the contract."); Casa Clara Condominium Ass'n, Inc. v. Charley Toppino and Sons, Inc., 620 So.2d 1244, 1247 (Fla.1993) ("We again `hold contract principles more appropriate than tort principles for recovering economic loss without an accompanying physical injury or property damage.'") (citing Florida Power & Light Co. v. Westinghouse Elec. Corp., 510 So.2d 899, 902 (Fla.1987); AFM Corp. v. Southern Bell Tel. & Tel. Co., 515 So.2d 180, 181-82 (Fla.1987)) ("[W]ithout some conduct resulting in personal injury or property damage, *993 there can be no independent tort flowing from a contractual breach which would justify a tort claim solely for economic losses."). Stated differently, the economic loss rule provides that when an intentional or negligent act constitutes a breach of contract, no tort claim for that act exists unless a personal injury or property damage occurred.
While Count V is entitled "Tortious Breach Of Duty To Deal With Insured In Good Faith," as plaintiff points out both Florida and Minnesota law classify a claim for breach of the duty of good faith and fair dealing as contractual in nature. Plaintiff's Memorandum at 33; North American Van Lines, Inc. v. Lexington Ins. Co., 678 So.2d 1325, 1330 (Fla.Dist.Ct.App.1996) ("In Florida, a bad faith claim is an action ex contractu."); Radloff v. First American Nat. Bank of St. Cloud, N.A., 470 N.W.2d 154, 158 (Minn.Ct. App.1991), rev. denied, July 24, 1991 (reiterating that there is no tort cause of action in Minnesota on a theory of breach of duty of good faith or fair dealing). As such, the economic loss rule is inapplicable to this claim.[13] Even if this claim did sound in tort rather than contract, the economic loss rule would not apply, as plaintiff has alleged facts showing that a breach of fiduciary duty may have occurred prior to the time the insurance contract was entered into by the parties.
Although the court is loath to allow amendment of the Complaint, in this case the allegations contained therein fairly put defendant on notice of the nature of plaintiff's claim. Amendment will therefore be allowed. In addition, summary judgment is not appropriate on this claim, as material questions of fact exist whether defendant did indeed breach this implied contractual duty.[14]
5. Counts I (Fraud), II (Fraudulent Inducement), VI (Negligence) and VII (Negligent Misrepresentation)
Defendant raised the economic loss rule as a bar only to Count V of the Complaint. The court, however, notes the rule's potential applicability to Count I (fraud), Count II (fraudulent inducement), Count VI (negligence), and Count VII (negligent misrepresentation). Each of these claims appears tortious in nature; therefore, the court will examine the preclusive effect of the economic loss rule on each.
A. Count I (Fraud)
Count I of the complaint is entitled "Fraud," and alleges that defendant misrepresented that one or several premiums in the initial years of the policy would carry the cost of the policy for the life of the policyholder, that defendant did not disclose material facts when under a duty to do so, and that defendant actively concealed material information from plaintiff. See Complaint ¶¶ 58-63. The gravamen of plaintiff's allegations is that defendant promised a "vanishing premium," and when this became infeasible due to changes in market conditions, defendant concealed this information from plaintiff.
The court finds that plaintiff's allegation of fraud is a tort claim for economic damages flowing from the same operative facts that constitute a claim for breach of contract. Plaintiff claims that he bargained for an insurance policy that involved no out-of-pocket costs after an initial payment. While plaintiff alleges plaintiff's misrepresentations and omissions constitute fraud, they also could constitute activity in breach of contract. Because plaintiff does not allege any property damage or personal injury, his claim is barred by Florida's economic loss rule.[15]
*994 B. Count II (Fraudulent Inducement)
Count II of the Complaint is entitled "Fraudulent Inducement," and alleges that
Minnesota Mutual fraudulently induced plaintiff and Class members to purchase Minnesota Mutual Policies by misrepresenting the "vanishing premium" and replacement products it sold. The sales techniques, presentations and Policy illustrations used by Minnesota Mutual to sell its Policies to plaintiff intentionally omitted and concealed material facts and misrepresented the essential nature and material risks of the Policies being purchased[.]
Complaint ¶ 67. Florida's economic loss rule "has not eliminated causes of action based upon torts independent of the contractual breach even though there exists a breach of contract action." HTP, 685 So.2d at 1239. The court in HTP noted that "[f]raudulent inducement is an independent tort in that it requires proof of facts separate and distinct from the breach of contract. It normally `occurs prior to the contract and the standard of truthful representation placed upon the defendant is not derived from the contract.'" Id. (citing Woodson v. Martin, 663 So.2d 1327, 1331 (Fla.Dist.Ct.App.1995)).
A recent case of the Florida Court of Appeals, analyzed by Judge Kyle in Force, clarifies the status of fraudulent inducement claims brought in conjunction with claims for breach of contract. In Hotels of Key Largo, Inc. v. RHI Hotels, Inc., 694 So.2d 74 (Fla. Dist.Ct.App.1997), rev. denied, 700 So.2d 685 (1997), the court affirmed the lower court's dismissal of a fraudulent inducement claim because of the economic loss rule. There, the court declined to adopt the position that one can always avoid the operation of the economic loss doctrine by merely pleading fraud in the inducement. Id. at 77. The court noted that "[a] critical distinction must be made where the alleged fraudulent misrepresentations are inseparably embodied in the parties' subsequent agreement." Id. The court concluded that
[i]t makes sense that a truly independent cause of action for fraudulent misrepresentation, where the ability of one party to negotiate fair terms is undermined by the other's fraudulent behavior, is not barred by the economic loss rule. However, where the only alleged misrepresentation concerns the heart of the parties' agreement, simply applying the label of `fraudulent inducement' to a cause of action will not suffice to subvert the sound policy rationales underlying the economic loss doctrine.
Id. Based upon its reading of the cases, the court agrees with Judge Kyle's finding in Force that "Florida courts have not adopted a per se rule regarding whether the economic loss rule applies to claims of fraudulent inducement; rather, such a determination depends on the specifics of each case." Force, ___ F.Supp. at ___.
The court in Force was dealing with a motion to dismiss under Fed.R.Civ.P. 12(b)(6). The court found that
dismissal of the Plaintiffs' fraudulent inducement claim at this stage of the proceedings would be inappropriate. Whether their claim for fraudulent inducement is `interwoven and indistinct from the heart of the contractual agreement,' Key Largo, 694 So.2d at 78, and therefore barred, is a matter that does not lend itself to resolution on a Rule 12(b)(6) motion to dismiss. Specifically, [defendant] has not shown that, under any set of facts consistent with the pleadings, the plaintiffs would be unable to show that their ability `to negotiate fair terms and make an informed decision [has been] undermined by [defendant's] fraudulent behavior.' HTP, 685 So.2d at 1240, quoted in Key Largo, 694 So.2d at 77.
Force at ___ - ___. Here, the alleged misrepresentations and omissions made by defendant "concern the heart of the parties' agreement." Hotels of Key Largo, 694 So.2d at 77. As has already been discussed, plaintiff alleges defendant misrepresented the number of out-of-pocket premium payments that would be required to maintain the policy. As plaintiff himself admits, "I would not have purchased the $30,000.00 policy or increased the coverage to $40,000.00 but for the representation that there would be no additional out-of-pocket expense required after the initial payment." Parkhill Affidavit at ¶ 20. The court finds that the representations made by defendant are at the heart of the dispute over the parties' agreement. *995 Plaintiff's fraudulent inducement claim is therefore barred.
C. Count VI (Negligence)
Count VI, entitled "Negligence," alleges that defendant owed plaintiff the duty to act with reasonable care in retaining, training, and supervising its agents and that defendant breached this duty by failing to supervise the agents' conduct in selling vanishing premium policies. Plaintiff contends defendant failed to ensure that its agents fully disclosed all material facts and did not misrepresent or omit material facts. See Complaint ¶¶ 92-94. This claim is barred by the economic loss rule. Quite simply, any misrepresentations or omissions made by defendant's agents serve as the basis for plaintiff's breach of contract claim.
D. Count VII (Negligent Misrepresentation)
Finally, Count VII is entitled "Negligent Misrepresentation," and alleges essentially the same misconduct as the fraud allegations contained in Count I. Plaintiff claims defendant falsely misrepresented, through uniform sales presentations and illustrations, that the single prepayment of premiums at the time of purchase of the policy, or the payment of premiums during the initial years of the policy, would be sufficient to carry the entire cost of the policy.[16] Complaint ¶ 97. Plaintiff claims such statements were negligently made by defendant in the course of its business, and defendant failed to exercise reasonable care in obtaining or communicating more accurate information. Complaint ¶ 98. Plaintiff's allegations of fraud and negligent misrepresentation are virtually indistinguishable. For the same reasons his fraud claim is barred by the economic loss rule, so too is plaintiff's negligent misrepresentation claim.
c. Statutory Claims
In addition to his common law claims, plaintiff brings claims for three statutory violations. Plaintiff alleges that defendant has violated the Minnesota Uniform Deceptive Trade Practices Act, Minn.Stat. §§ 325D.43-325D.48, the Minnesota False Statement in Advertising Act, Minn.Stat. § 325F.67, and the Minnesota Consumer Fraud Act, Minn.Stat. §§ 325F.68-325F.70. The court will consider each allegation in turn.
1. Deceptive Trade Practices
Plaintiff alleges in Count IX of the Complaint that defendant violated Minn.Stat. §§ 325D.43-325D.48, the Minnesota Uniform Deceptive Trade Practices Act (hereafter "Trade Act"). Defendant contends that to assert a claim under the Trade Act, a plaintiff must prove a "likelihood of confusion" from the defendant's "passing off" of its goods and services as those of another. Defendant's Memorandum at 19. Defendant argues that in this case plaintiff has not made the requisite Trade Act allegations of "passing off" or "confusion" because "the clear and unambiguous language of plaintiff's Complaint illustrates that he was fully aware all along that the Policy was issued to him by Minnesota Mutual." Id. at 20.
The Trade Act provides that
A person engages in a deceptive trade practice when, in the course of business, vocation, or occupation, the person:
(1) passes off goods or services as those of another;
(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(3) causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with, or certification by, another;
...
(5) represents that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or qualities that they do not have or that a person has a sponsorship, approval, status, affiliation, or connection that the person does not have;
...
(9) advertises goods or services with intent not to sell them as advertised[.]
*996 Minn.Stat. § 325D.44, subd. 1(1)-(3), (5), (9). Defendant cites three cases for the proposition that to assert a claim under the Trade Act plaintiff must prove a "likelihood of confusion" from the defendant's "passing off" of its goods and services as those of another. See Defendant's Memorandum at 19; CSM Investors, Inc. v. Everest Development, Ltd., 840 F.Supp. 1304, 1314 (D.Minn.1994); Scott v. Mego Intern., Inc., 519 F.Supp. 1118, 1137 (D.Minn.1981); Krueger v. State Farm Fire and Cas. Co., 510 N.W.2d 204, 211 (Minn.Ct. App.1993). It is clear from the statutory language that to state a claim under § 325D.44 subd. 1(1), (2), or (3), "passing off" or "confusion" is required. In each of the cases cited by defendant, one of these three sections was at issue. In Scott and CSM Investors, the plaintiffs alleged confusion of product, while in Krueger, the plaintiff alleged that an insurance company had attempted to confuse him regarding which division of its company had insured him.
Here, however, plaintiff makes allegations cognizable under § 325D.44, subd. 1(5) and (9). The plain language of these sections does not have a "passing off" or "confusion" requirement. As noted in Force:
There is nothing in the language of Minn. Stat. § 325D.44, subs. 1(5) or 1(9) that requires a plaintiff to show a likelihood of confusion about the source of goods in question. In fact, the structure of the statute suggests just the opposite: that no such showing is required. The statute specifically lists thirteen separate ways in which a plaintiff can establish a violation, and only three of the thirteen contain an explicit requirement that the defendant cause or create a likelihood of confusion about the product.
Force, ___ F.Supp. at ___.
Defendant further argues that plaintiff's Trade Act claim must be dismissed because defendant's conduct complies with government regulations. Minn.Stat. § 325D.46, subd. 1(1) provides that the Trade Act does not apply to "conduct in compliance with the orders or rules of, or a statute administered by, a federal state, or local governmental agency[.]" Because both Minnesota and Florida comprehensively regulate insurers, defendant argues that the failure of either state to bring claims against it for non-compliance with regulatory statutes shows compliance with the law and nonapplicability of the Trade Act.
Plaintiff, however, has alleged conduct in the complaint which, if proven, constitutes violations of several Minnesota and Florida statutes. For example, the complaint alleges that defendant used illustrations as a vehicle for conveying misleading information. See Complaint at ¶ 3, 13, 14, 16, 20, 22, and 24-35. This conduct could violate Minn.Stat. § 72A.12 subd. 2, which provides that "[n]o life insurance company doing business in this state ... shall issue or circulate, or cause to permit to be issued or circulated, any ... illustration ... misrepresenting the terms of any policy issued by it or the benefits or advantages promised thereby...." Simply because neither Minnesota nor Florida have taken action against defendant does not mean that defendant's actions are in compliance with all applicable laws.
Finally, defendant argues that even if plaintiff's Trade Act claim is legally sufficient, plaintiff is not entitled to the money damages he seeks because the Trade Act is excluded from Minn.Stat. § 8.31, subd. 1, Minnesota's "private attorney general" statute. This argument is irrelevant to whether summary judgement should be granted, however, given the other remedies provided in the Trade Act itself:
Subdivision 1. A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it under the principles of equity and on terms that the court considers reasonable. Proof of monetary damage, loss of profits, or intent to deceive is not required.
...
Subdivision 3. The relief provided in this section is in addition to remedies otherwise available against the same conduct under the common law or other statutes of this state.
Minn.Stat. § 325D.45. Defendant's motion must therefore be denied as to Count IX of the Complaint.
2. False Advertising
In Count X of the Complaint, plaintiff alleges that the promotional efforts undertaken *997 by defendant contained knowingly untrue, deceptive, and misleading statements concerning its products in violation of Minn. Stat. § 325F.67. Complaint ¶ 111. Minnesota's False Statement in Advertising Act (hereafter "Advertising Act") provides that it is a misdemeanor for a business to make any false or misleading advertisement in conjunction with the sale of merchandise or anything else offered for sale. Minn.Stat. § 325F.76. A specific requirement of the Advertising Act is that the advertisement be "made, published, disseminated, circulated, or placed before the public in this state." Id. Defendant contends that the Advertising Act does not apply in this case because it is limited to false statements made, published, disseminated, circulated, or placed before the public in this state, and here plaintiff is alleging that a Minnesota Mutual agent contacted and made false representations to him in Florida.
Plaintiff responds that defendant is a Minnesota corporation, maintains its principal place of business in Minnesota, and the statements about which he complains "were systematically designed, orchestrated, promulgated and disseminated as part of a uniform scheme originating in Minnesota Mutual's home office in Minnesota." Plaintiff's Response at 38. Plaintiff argues that Minnesota, as defendant's principal place of business, has a significant interest in ensuring that defendant's business conforms with the law, and that subjecting defendant to the Advertising Act "is hardly unprecedented, unfair, unjust, or an improper or unforeseeable imposition." Id.
The court finds that plaintiff's allegations do not come within the express requirements of the statute. The Advertising Act requires that a false or misleading statement be made in this state, and plaintiff's allegations relate only to statements made to him in Florida.[17] While plaintiff attempts to broaden the scope of the Advertising Act to encompass defendant's statements, the plain language of the statute requires that any statements be made in Minnesota. The court will not judicially expand the Advertising Act's coverage so as to include plaintiff's claim.
3. Consumer Fraud
In Count XI of the complaint, plaintiff alleges that defendant's acts, practices, misrepresentations and omissions constitute fraud, false pretense, false promise, misrepresentation, deceptive sales practices, and dissemination of misleading information. Complaint ¶ 117-18. Defendant's statements and actions, alleges plaintiff, are in violation of Minnesota's Consumer Fraud Act (hereafter "Fraud Act"), Minn.Stat. § 325F.68-325.70. The Fraud Act provides that
The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided herein.
Minn.Stat. § 325F.69, Subd. 1. By its express terms, the Fraud Act applies only to the sale of merchandise, defined as "any objects, wares, goods, commodities, intangibles, real estate, loans, or services." Id. at § 325F.68, Subd. 2. Defendant argues that because insurance does not fall within the definition of merchandise, the Fraud Act is inapplicable in this case. Plaintiff, on the other hand, argues that insurance should be considered merchandise.
In construing the Fraud Act, Minnesota courts have not yet expressly determined whether insurance is to be considered "merchandise." Each side therefore cites cases in support of its argument that insurance should or should not be included within the Fraud Act's provisions. Defendant cites Boubelik v. Liberty State Bank, 553 N.W.2d 393, 403 (Minn.1996), where loan contracts were found not to be "merchandise" under the Fraud Act,[18] and Wilder v. Aetna Life & Cas. Ins. Co., 140 Vt. 16, 433 A.2d 309, 310 *998 (1981), where insurance was held not to be a "good" or "service" within the scope of Vermont's consumer fraud statute, in support of its argument that insurance is not "merchandise."[19] Plaintiff cites Jenson v. Touche Ross & Co., 335 N.W.2d 720, 728 (Minn.1983), where an investment contract was found to be "merchandise," in support of its argument that insurance should be included. Plaintiff argues that while the court in Boubelik found that "[o]ne does not sell money in the usual business sense," one does sell insurance; therefore, insurance is more like an investment contract, found to be a "commodity" for purposes of the Fraud Act. See Boubelik, 553 N.W.2d at 403; Jenson, 335 N.W.2d at 728; Plaintiff's Memorandum at 39.
The court has examined the cases cited by both parties, and agrees with the reasoning and decision of the court in Force:
While instructive, Boubelik does not control the instant case. Unlike money, one does sell insurance in the usual business sense. The Minnesota Supreme Court has held that, because "merchandise" is defined as including both "commodities" and "intangibles," the Act applies to the sale of investment contracts. Jenson v. Touche Ross & Co., 335 N.W.2d 720, 728 (Minn. 1983). The court finds Jenson to be more persuasive than Boubelik on this issue and, in accord with the majority of other jurisdictions that have considered this issue with regard to similarly situated statutes, holds that the Consumer Fraud Act does apply to the sale of insurance.
Force, ___ F.Supp. at ___ - ___. In so holding, the court notes that "[c]onsumer protection statutes are remedial in nature and are to be liberally construed in favor of protecting consumers." Boubelik, 553 N.W.2d at 393 (citing State by Humphrey v. Alpine Air Products, Inc., 490 N.W.2d 888, 892 (Minn.Ct.App.1992), aff'd, 500 N.W.2d 788 (Minn.1993)).
Defendant further argues that the Fraud Act does not apply to the sale of insurance because defendant's conduct is governed by specific insurance statutes under which no private right of action exists. Specifically, defendant contends that no private right of action exists under Minn.Stat. Ch. 72A, the Unfair Claims Practices Act (hereafter "Unfair Practices Act"), which regulates trade practices in the insurance industry. Defendant relies on Morris v. American Family Mut. Ins. Co., 386 N.W.2d 233 (Minn.1986), where the Minnesota Supreme Court held that neither the Unfair Practices Act itself nor the Minnesota "private attorney general" statute, Minn.Stat. § 8.31, Subd. 3a, afford a private party a cause of action against an insurer for violations of the Unfair Practices Act. See Defendant's Memorandum at 22-23.
Defendant is correct in asserting that no private cause of action exists for violations of the Unfair Practices Act. As plaintiff points out, however, his claim is not brought pursuant to the Unfair Practices Act, but instead under the Fraud Act. See Plaintiff's Memorandum at 40. The question thus becomes whether the claim preclusion recognized in Morris extends to claims brought under statutes other than the Unfair Practices Act. In Force, Judge Kyle faced a similar, if not identical, issue.[20] There, the defendant cited Morris "for the proposition that the Minnesota Legislature intended to comprehensively regulate the insurance industry through the Insurance Act and to preclude other causes of action against insurers." Force, ___ F.Supp. at ___. Judge Kyle found that Morris
is not as broad as [defendant] asserts, and holds only that no private cause of action exists against an insurer under the Minnesota Unfair Claims Practices Act.... Accordingly, the court rejects [defendant's] argument that the Minnesota Legislature intended, in passing the Insurance Act, to proscribe claims against insurers brought under the ... Consumer Fraud Act. *999 Id. The court agrees, and finds that plaintiff's claims under the Fraud Act are not precluded by Minn.Stat.Ch. 72A. The general protections afforded by the Fraud Act are applicable to insurance companies regulated by the Unfair Claims Practices Act.
Because the court finds the definition of "merchandise" contained in the Fraud Act to encompass insurance, and because a private cause of action is not precluded by Minn.Stat. Ch. 72A, plaintiff has stated a claim upon which relief can be granted. Further, summary judgment for defendant on this claim is inappropriate because material questions of fact exist whether defendant violated the Fraud Act's provisions.
d. Equitable Remedies
Plaintiff has pleaded several equitable causes of action in conjunction with his common law claims. In Count VIII, plaintiff alleges unjust enrichment. In Count XII he seeks declaratory relief. In Count XIII he asked the court to reform the parties' contract. The only argument defendant makes in opposition to any of these claims is that the statute of limitations bars plaintiff's claim for unjust enrichment. As has been noted several times, however, plaintiff's cause of action accrued in 1994 when he was required to make an out-of-pocket payment to maintain his policy. This claim is therefore not time-barred.
At this stage, the court notes simply that claims for equitable and declaratory relief are barred to the same extent that the legal claims for substantive relief on which they are based are barred. The court is not now in a position to decide whether defendant's representations are part of a valid, enforceable contract such that there has been a breach of a contractual term or implied duty. Plaintiff's claims for equitable relief may therefore go forward.
CONCLUSION
Based on a review of the file, record, and proceedings herein, the court concludes that summary judgment is appropriate on five of plaintiff's claims. Therefore, IT IS HEREBY ORDERED that:
1. Plaintiff shall have ten days to amend the complaint as provided in this opinion;
2. Defendant's motion to dismiss, or in the alternative, motion for summary judgment is granted in part and denied in part;
3. Plaintiff's claims for fraud (Count I), fraudulent inducement (Count II), negligence (Count VI), negligent misrepresentation (Count VII), and violations of the Minnesota False Statements in Advertising Act (Count X) are dismissed with prejudice.
NOTES
[1] Plaintiff styles his complaint as a "Class Action Complaint," and states that he "brings this action individually and as a class action ... on behalf of all persons and entities who purchased whole or other permanent life insurance policies from defendant ... based on a nationwide fraudulent common course of conduct and deceptive sales scheme[.]" Complaint ¶ 1. Plaintiff, however, has not moved for certification of a class. The court will therefore consider only plaintiff's individual allegations and claims in ruling on defendant's motion.
[2] A "vanishing premium" policy is one where, after a certain number of premium payments, the policy itself generates sufficient income through dividends and interest to pay any additional premiums due. In other words, premiums paid in the initial years of a policy are supposed to generate sufficient value to pay all future premiums due in later years, so that future premiums, in essence, "vanish." The assumption that premiums will "vanish" depends on, among other factors, mortality experience, expenses, dividends, and associated interest rates. A change in any of these variables can affect the date by which premiums will "vanish."
[3] Plaintiff's wife, Mary Parkhill, was the actual owner of Policy No. 1-673-0610. Plaintiff was listed as the named insured under the policy, and was to pay all premiums due. See Exhibit 1 to Lee Affidavit, Question 30.
[4] The facts alleged in the complaint and those asserted by plaintiff in his affidavit are not entirely consistent. For example, the complaint alleges that Russo promised plaintiff "that for an initial payment of several thousand dollars, that Mr. Parkhill could purchase the $30,000 policy with no additional premiums required," and that plaintiff could use his Paul Revere policies "to purchase a Minnesota Mutual ... policy with a face amount of $40,000 for a one-time out-of-pocket payment of $3,791.00." Complaint at ¶ 45. The facts as alleged in plaintiff's affidavit are set forth above. Plaintiff contends that when he read the complaint he "did not recognize that there was some confusion as to the facts alleged in it." Parkhill Affidavit at ¶ 26. The court agrees with plaintiff that these factual discrepancies do not undercut the substance of plaintiff's claims. Plaintiff, however, must amend the complaint to correct any factual inaccuracies.
[5] Russo apparently left Minnesota Mutual's employ in 1990, and plaintiff's questions thereafter were directed to another agent. Complaint ¶ 47.
[6] The court notes that it has examined the recent decision of the Honorable Richard Kyle of this District in Force, et al. v. ITT Hartford Life and Annuity Insurance Co., ___ F.Supp. ___, Civ. No. 97-1619 (RHK/FLN) [1998 WL 181190] (D.Minn. Jan. 26, 1998) (hereafter "Force"). That case involved almost identical allegations brought against a different insurance company, and the parties in that case made many arguments similar to those presented here. Indeed, plaintiffs in that case were represented by the same counsel as plaintiff here. Although that case involved a motion to dismiss under Fed. R.Civ.P. 12(b)(6), the court finds Judge Kyle's opinion to be highly instructive.
[7] Plaintiff alleges the agreement between himself and defendant consists of written illustrations provided by defendant, other uniform written and oral representations made to plaintiff by defendant, and the applications, policies, riders, and other pre-printed forms drafted by defendant. Complaint ¶ 75.
[8] Given that the court agrees with plaintiff that the parol evidence at issue does not contradict the writing and that such evidence is needed to resolve an ambiguity in the contract, the court takes no position as to whether the contract is not fully integrated or whether the parol evidence rule operates in the presence of fraud.
[9] Because plaintiff alleges that the breach of contract did not occur until 1994, when he was obligated for the first time to pay an additional out-of-pocket premium, the court finds that his breach of contract claim is not time-barred by the applicable six year statute of limitations. Although defendant contends that the limitations period began to run in 1986 when plaintiff was required to pay additional premiums, this misconstrues plaintiff's argument. Plaintiff does not claim that he was promised no additional premiums would be due; instead, he alleges that he was promised that no additional out-of-pocket premiums would be due. Thus, the limitations period begins to run when defendant required an out-of-pocket payment to maintain the policy.
[10] Plaintiff points to an illuminating footnote of the Dornberger decision:
A leading treatise states that older decisions which refused to recognize a fiduciary relationship between insured and insurer may now be "out of step with current concepts." 12 John Alan Appleman & Jean Appleman, Insurance Law and Practice § 7004 (1981). The treatise notes that "[p]articularly is this approach outmoded when television advertising repeatedly refers to `the good hands' of the insurer or how it is `like a good neighbor', implying an ability to place trust and reliance upon the broad shoulders of the kindly company." Id.
Dornberger, 961 F.Supp. at 547 n. 39.
[11] Defendant's underlying concern seems to be that placing a fiduciary duty on the entire insurance industry would be burdensome and a dramatic change in the law. The court does not intend to impose any such sweeping duty. Instead, the facts of each individual case must be examined.
[12] In certain circumstances, Florida courts apply that state's economic loss rule to claims for breach of fiduciary duty. See Future Tech Intern., Inc. v. Tae Il Media, Ltd., 944 F.Supp. 1538, 1569 (S.D.Fla.1996) (finding no bar to breach of fiduciary duty claim because contract between parties was not the source of the fiduciary duty claim); McCutcheon v. Kidder, Peabody & Co., Inc., 938 F.Supp. 820, 823-24 (S.D.Fla.1996) (barring breach of fiduciary duty claim because claim arose "solely as a result of the existence of a contract between the parties"). A claim is barred by the economic loss rule only if the fiduciary duties at issue arise out of a contract. If duties exist independent of a contract, the claim will not be barred. In this case, plaintiff's claim for breach of fiduciary duty does not arise solely out of the insurance policy at issue. Indeed, plaintiff alleges breach of fiduciary duty before any policy was purchased. Therefore, this claim is not barred by the economic loss rule. As will be clear from the ensuing discussion, however, several of plaintiff's other claims are barred by the economic loss rule.
[13] Again, plaintiff's claim is not barred by the statute of limitations because any alleged breach occurred in 1994, when defendant had to make an additional out-of-pocket payment to maintain his policy.
[14] Defendant also contends that this claim is meritless because plaintiff is alleging breach of the duty of good faith and fair dealing prior to the formation of the contract and the duty to deal with an insured in good faith governs an insurer's conduct only after an insurance contract has been formed. Defendant's Memorandum at 18. Plaintiff, however, already owned two Minnesota Mutual policies at the time of the alleged breach, and he has also alleged post-formation misconduct. See, e.g., Complaint ¶ 38.
[15] Defendant argues that Count I (Fraud), Count II (Fraudulent Inducement), Count IV (Breach of Fiduciary Duty/Constructive Fraud), and Count VII (Negligent Misrepresentation) all fail because plaintiff cannot demonstrate reasonable reliance on defendant's representations and the policy was ratified by plaintiff's later actions. The court need not consider defendant's arguments on these claims because they are all barred by the economic loss rule.
[16] Plaintiffs allegations in Count VII seem geared more toward a class action than the facts of his individual case.
[17] The court is aware that if a class is later certified in this case, it could include members to whom statements were made in Minnesota, thus making the Advertising Act applicable to them. At this juncture, however, only plaintiff Parkhill's claims are before the court.
[18] Boubelik was decided before the Minnesota Legislature amended the Fraud Act to expressly include loans within the definition of "merchandise."
[19] These are the same two cases relied upon by the defendant in Force.
[20] In Force, the defendant argued that Morris preempted private causes of action under the Minnesota Deceptive Trade Practices Act, False Statement in Advertising Act, and Consumer Fraud Act. In this case, defendant argued in its initial memorandum only that a private cause of action under the Consumer Fraud Act is preempted. In its reply, defendant extends its argument to all three statutes. The court's analysis and holding with regard to the Fraud Act is equally applicable to the other statutes, and the court rejects defendant's preemption argument as to all three statutes. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598923/ | 729 So.2d 1019 (1999)
STATE of Louisiana
v.
Aristide LANDRY and Raymond Scardino.
No. 98-KK-0188.
Supreme Court of Louisiana.
January 20, 1999.
*1020 Richard Phillip Ieyoub, Atty. Gen., Harry F. Connick, Dist. Atty., David Kirk Groome, Jr., Metairie, John Jerry Glas, New Orleans, for Applicant.
Perman Glenn, III, Donald Anthony Sauviac, Jr., David Craig, Clive Adrian Stafford Smith, New Orleans, for Respondent.
PER CURIAM:[*]
Resolving a credibility choice between state and defense witnesses with regard to the circumstances under which both defendants accompanied police officers from their residence to the Homicide Division of the New Orleans Police Department, where they gave videotaped statements at issue here concerning the death of Lester Hansen, the trial court found that the police had arrested the defendants in their home without arrest warrants in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The court further ruled that "[e]verything that happened thereafter was fruits of the poisonous tree, and thus should be suppressed." The court of appeal found "no error in the trial court's ruling." State v. Scardino, 97-2582 (La.App. 4th Cir.12/18/97). We granted the state's application not to review the exercise of the trial court's factfinding discretion but to consider its ruling in light of New York v. Harris, 495 U.S. 14, 21, 110 S.Ct. 1640, 1644-45, 109 L.Ed.2d 13 (1990), which held that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." See also State v. Galliano, 96-1736, pp. 13-14 (La.App. 1st Cir.6/20/97), 696 So.2d 1043, 1051. The trial court apparently concluded that the inquiry into the probable cause basis for arresting the defendants had been foreclosed not only by the Payton violation but also by the opinion of the lead investigating officer, Detective Dwight Deal, expressed in response to a direct question from the court during the suppression hearing, that he did not have probable cause to arrest the defendants at the time he went to their residence because the officer "didn't have everything that I wanted to have to satisfy myself." Detective Deal therefore did not apply to a magistrate for arrest warrants because he "wanted to build this and make it a stronger case."
We have made clear that "the determination of reasonable grounds for an investigatory stop, or probable cause for an arrest, does not rest on the officer's subjective beliefs or attitudes but turns on a completely objective evaluation of all of [the] circumstances known to the officer at the time of his challenged action." State v. Kalie, 96-2650, p. 1 (La.9/19/97), 699 So.2d 879, 880 (emphasis in original) (citing Whren v. United States, 517 U.S. 806, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996) and State v. Wilkens, 364 So.2d 934, 937 (La.1978)). Detective Deal's opinion about the status of his investigation, or his desire to obtain more information before applying to the magistrate for arrest warrants, therefore did not preclude the trial court from inquiring into the probable cause basis for Deal's actions, once it found that the detective had, in fact, arrested the defendants in their home. See Hoffa v. United States, 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374 (1966) ("The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too *1021 soon.... Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction."); cf., State v. Rodrigue, 437 So.2d 830, 833, n. 5 (La.1983) ("[T]hat a better showing of probable cause could have been made, if the officers seeking the warrant had waited for the development of available information does not detract from the showing of probable cause that was made.").
In its application, the state has provided this Court with information which it contends supplied the probable cause basis for taking the defendants into custody before they gave their videotaped statements. Deal testified at the hearing that he had interviewed Benjamin Scardino, the brother of Raymond Scardino and cousin of Aristide Landry, approximately 12 hours before he led a team of officers to the defendants' home. In that statement, Benjamin Scardino told the detective that shortly after Hansen's murder the defendants confided to him that they had gone to Hansen's home in Lake Catherine, Louisiana, on the day of the crime with Ricky Alford and eventually helped Alford tie the victim up and beat him, apparently in an effort to make Hansen confess to abusing Alford's children sexually. Alford then took a large knife, slit the victim's throat so viciously that Hansen's head hung only by the flesh at the back of his neck, and stabbed him in the back with enough force to sever Hansen's ribs and penetrate one of his lungs. The defendants and Alford wrapped the victim's body in a sail from his sailboat, put the body in a car they had borrowed earlier that day, and disposed of the body, weighted by a large brick tied to its feet, in some water, possibly a canal, "near the Interstate."
According to the state, details of the stabbing provided in Benjamin Scardino's account matched the results of the autopsy on Hansen after his nearly decapitated body, wrapped in a sail and bound hand and foot and weighted, was recovered from Bayou Sauvage half a mile from U.S. 90 in Lake Catherine. Those details, the state argues, vouched for the reliability of his information, as did the way in which Benjamin Scardino acquired the information. See Spinelli v. United States, 393 U.S. 410, 425, 89 S.Ct. 584, 593, 21 L.Ed.2d 637 (1969) (White, J., concurring) ("[I]f, for example, the informer's hearsay comes from one of the actors in the crime in the nature of admission against interest, the affidavit giving this information should be held sufficient."). The state also argues that Benjamin Scardino's familial relationship with the defendants further vouched for the reliability of his information. See 2 W.R. Lafave, Search and Seizure, § 3.3(c), pp. 136-37 (West 1996) ("[T]here may be circumstances in which the informant's implication of someone whom he could be expected to protect will sufficiently show the reliability of his information.").
It appears, however, that the state failed to introduce any of this information pertinent to the question of probable cause at the suppression hearing. The trial judge therefore could not have ruled on the question even if it had been so inclined. In fact, the court sustained the state's objections when defense counsel sought to question Detective Deal about Benjamin Scardino's statement, thereby foreclosing any inquiry into the factual basis for Deal's suspicions that the defendants had been involved in Hansen's murder. Under these circumstances, in which the trial court misapplied derivative taint analysis to a Payton violation possessing no causal relationship to the subsequent stationhouse statements, Harris, 495 U.S. at 19, 110 S.Ct. at 1644, a remand to the district court for retrial of the motion to suppress as to the issue of probable cause is appropriate. See State v. Jackson, 424 So.2d 997, 1000 (La.1983) (remanding for retrial of the motion to suppress to provide the state with an opportunity to carry its burden "of establishing the admissibility of the defendant's confession by either showing that probable cause existed to arrest the defendant or that the causal connection between an unlawful arrest and a subsequent confession had been broken for Fourth Amendment purposes."); State v. Simmons, 328 So.2d 149 (La.1976) (remand for retrial of motion to suppress as opposed to reversal of the defendant's conviction is appropriate when the state has failed *1022 to carry its burden of rebutting the defendant's specific allegations of coercion leading to his confession); State v. Haynie, 395 So.2d 669 (La.1981) (applying Simmons in a pretrial context); see also United States v. Little, 18 F.3d 1499, 1503 (10th Cir.1994) (even when the result on a motion to suppress is favorable to the defendant, "[i]f the district court's factual findings are based on an erroneous interpretation of law, a remand is appropriate unless the record is such that only one resolution of the factual issue is possible.") (internal quotation marks and citations omitted), appeal after remand, 60 F.3d 708 (10th Cir.1995). The state may thereby have the opportunity to show, if it can, that Detective Deal had probable cause for taking the defendants into lawful custody before they gave their statements. In making that determination, the court may consider all of the information known collectively to the law enforcement personnel involved in the investigation. See United States v. Klein, 93 F.3d 698, 701 (10th Cir.1996) ("Probable cause can rest upon the collective knowledge of the police, rather than solely on that of the officer who actually makes the arrest.") (citation and internal quotation marks omitted); United States v. Butler, 74 F.3d 916, 921 (9th Cir.1996) ("Probable cause can also be demonstrated through the collective knowledge of police officers involved in an investigation, even if some of the information known to other officers is not communicated to the arresting officer."); see also Rodrigue, 437 So.2d at 833, n. 5. If the trial court finds that probable cause existed, it must then consider the defendants' claims that the police physically abused them in the Homicide Division and thereby rendered their subsequent statements involuntary. See Harris, 495 U.S. at 20, 110 S.Ct. at 1644 ("Statements taken during legal custody would of course be inadmissible, for example, if they were the product of coercion, if Miranda warnings were not given, or if there was a violation of the rule of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)").
JUDGMENT VACATED; CASE REMANDED.
LEMMON, J., dissents and assigns reasons.
LEMMON, J., Dissenting.
The trial court made a factual finding that defendants had been arrested in their home without a warrant in violation of Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), and suppressed videotaped statements, subsequently made by defendants at the police station, as the product of an illegal arrest. We granted certiorari to review that ruling because of a statement attached to the state's application in which defendant Scardinos's brother appeared to provide a probable cause basis for the warrantless arrest.[1] We thus intended to review the trial court's suppression ruling in light of New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990), which held that the exclusionary rule does not bar the state's use of a statement made by the defendant outside of his home, even though the statement was taken after an arrest in the home in violation of Payton, when the police had probable cause to make the warrantless arrest of defendant in his home.
After granting the state's application and reviewing the record, we determined that the state at the suppression hearing failed to introduce Benjamin Scardino's statement or other critical information bearing on probable cause to arrest defendants in their home. Without a showing of probable cause, the state could not have relied on the Harris holding as a basis for using defendants' statements made at the police station after the warrantless arrest in their home.[2] Thus the *1023 trial court's suppression ruling appears to be correct on the record evidence introduced at the suppression hearing. The critical issue, therefore, is whether we should remand the case for a reopened hearing on the motion to suppress and thereby provide the state with a second opportunity to introduce probable cause evidence that was available to and in the possession of the state at the time of the first hearing. I disagree with the majority's remanding the case under these circumstances.
This court has previously ordered reopened hearings on motions to suppress under limited circumstances. In State v. Jackson, 424 So.2d 997 (La.1983), the trial judge denied a motion to suppress both a purse seized during the defendant's arrest and statements made by the defendant after his arrest. During the hearing that led to this ruling, the judge sustained the state's objection to defense counsel's cross-examination of witnesses pertaining to probable cause for the defendant's arrest. At trial, the state introduced the confession and the purse, and the defendant was convicted.
On appeal, this court, after ruling that the trial judge erred in restricting defense counsel's cross-examination pertaining to probable cause to arrest, was unable in light of the trial error to determine whether the state carried its burden of establishing the admissibility of the confession. Rather than reversing the conviction, however, this court remanded "the motion for a reopened hearing to admit the omitted or improperly excluded evidence." Id. at 1000. This court noted that the error may be eliminated by a reopened hearing on the motion to suppress at which the trial court, after considering the excluded cross-examination, may determine that the motion to suppress still must be denied, and a new trial on the merits possibly may be avoided. Id. See also State v. Edwards, 375 So.2d 1365 (La.1979) (possibly avoiding new trial after conviction by remanding for a reopened suppression hearing when the trial court at first suppression hearing erroneously denied defendant's motion to suppress by granting state's objections when the defendant attempted to explore issue of lack of probable cause).
Unlike the Jackson and Edwards cases, the trial court in the present case granted the motion to suppress, and the state is the party complaining to this court of the trial court's ruling. However, the state's complaint (unlike defense counsel's complaint in the Jackson and Edwards cases) is not that the trial court improperly excluded evidence offered by the complaining party or limited in any manner the complaining party's examination or cross-examination of any witnesses.[3] Nor does the state assert in this court that it has newly discovered evidence of probable cause that was not known or reasonably knowable at the time of the suppression hearing. In fact, the state, as noted earlier, had in its possession significant evidence of probable cause that it simply failed to offer in evidence.
I agree with the rationale of Jackson and Edwards cases, which was designed to avoid a new trial on the merits when a reopened suppression hearing might show that correction of a trial error in improperly admitting or excluding evidence at the original hearing would not change the original suppression ruling. That rationale, however, has no application in the present case. The decision unfavorable to the state at the motion to suppress did not result from erroneous evidentiary rulings by the trial court, but rather resulted from the state's unexplained failure to argue the New York v. Harris exception to the Payton violation and the state's further failure to introduce available evidence on probable cause which would support a New York v. Harris argument in this court. The state has further failed to advance any convincing argument that it should be given a second chance to remedy the prior failings. Under the circumstances, it is inappropriate for this court not only to supply a legal argument overlooked by the state, but also to provide the state a second opportunity to *1024 meet its burden of proof when the necessary evidence was in its possession at the time of the original hearing.[4]
NOTES
[*] Kimball, J., not on panel. See La.S.Ct. Rule IV, Part II, § 3.
[1] The statement by Benjamin Scardino was given twelve hours before defendants' arrest in their home. In the statement, Benjamin Scardino related information, confided to him by defendants, that they helped Ricky Alford tie the victim up and beat him; that Alford nearly decapitated the victim with a large knife and forcefully stabbed him; and that defendants and Alford wrapped the body in a sail from Alford's sailboat and transported the weighted body to a roadside canal, where it was dumped. The details given by Benjamin Scardino matched those in the autopsy report and in the police report of the recovery of the body.
[2] The state did not urge Harris in the trial court (or in its application to this court) as a basis for denial of the motion to suppress. Indeed, the state at the hearing objected to defense counsel's attempt to question the detective about Benjamin Scardino's statement.
[3] The state's sole complaint was that the trial court erred in finding that defendants had been arrested rather than that they freely consented to go to the police station and give statements.
[4] I concede that this court has previously granted this type of favorable treatment to the state. See State v. Scott, 355 So.2d 231 (La.1978) (possibly avoiding new trial after conviction by remanding for a reopened suppression hearing; prosecution at first suppression hearing failed to fully establish either probable cause or break in causal connection between arrest and confession); State v. Hills, 354 So.2d 186 (La.1977) (same; prosecution at first suppression hearing failed to rebut evidence of coerced confession); State v. Simmons, 328 So.2d 149 (La.1976) (same; holding that prosecution had burden at first suppression hearing of rebutting each of defendant's coercion claims). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598465/ | 3 So.3d 685 (2009)
STATE of Louisiana, Appellee
v.
Geoffrey EASON, Appellant.
No. 43,788-KA.
Court of Appeal of Louisiana, Second Circuit.
February 25, 2009.
*687 Louisiana Appellate Project by: Peggy J. Sullivan, Monroe, for Appellant.
J. Schuyler Marvin, District Attorney, John M. Lawrence, Charles A. Smith, C. Sherburne Sentell, III, Edward C. Jacobs, Assistant District Attorneys for Appellee.
Before BROWN, STEWART and PEATROSS, JJ.
STEWART, J.
Defendant, Geoffrey Eason, was charged with two counts of armed robbery with a firearm. A jury found Eason guilty as charged on both counts, and the court sentenced the defendant to serve two concurrent terms of fifty years' imprisonment at hard labor without parole. Eason now appeals, urging five assignments of error. We affirm the defendant's convictions, but vacate his sentences and remand for resentencing due to an error patent.
FACTS
On the evening of January 31, 2006, Dr. Wayne McMahen and his teenage daughter, M.M.[1], returned to their home in Springhill, Louisiana, after attending a *688 ballgame. M.M. went to her room, while Dr. McMahen sat in the den watching the news. Dr. McMahen heard the family dog barking in the kitchen, so he went into the kitchen to let the dog out into the yard. As he opened the sliding glass door, a masked man, armed with a gun, rushed into the door. Dr. McMahen tried to slam the door shut, but the armed man put his hand into the doorframe to hold the door open.
The armed man entered the home, followed by two other masked men. The men forced Dr. McMahen to the ground and demanded money. Dr. McMahen gave the men his wallet, and the man with the gun held Dr. McMahen down while the other two men searched the house for valuables. Dr. McMahen saw that the gunman's injured hand was bleeding on the floor.
One of the other two men entered M.M.'s room and demanded money; M.M. surrendered several hundred dollars to the masked man. When that man left her room, M.M. went to her door to look down the hall, and another masked man armed with a gun slammed her door shut. When M.M. heard another door slam, she believed that the men had left, so she came out of her room only to find the three men, two of whom had guns, still in the home. M.M. returned to her room.
Dr. McMahen then told the men that his keys were in his truck. After some discussion among themselves, the men took the truck and left. Dr. McMahen immediately called his wife, who was at Dr. McMahen's office, and asked her to call police. Dr. McMahen's truck was equipped with the OnStar system, so Dr. McMahen called OnStar, which then located the truck via satellite within ten or fifteen minutes.
In the meantime, Springhill police arrived at the McMahen residence. Police Chief Ronnie Coleman found the robber's blood on the floor. He explained that he used sterile water and a sterile swab to collect the blood evidence to permit later testing. Coleman put the sample into a bag, then another officer marked the bag for identification and sealed the bag, and then Chief Coleman stored the evidence in a secure closet. Coleman admitted that he had no special training in the collection of DNA evidence.
The robbers were not located with the truck, so in the ensuing days police questioned various people in the community about their knowledge of the crime. The police developed a juvenile suspect, Alva Tealer, and questioned Tealer in the presence of his mother. After waiving his rights, Tealer admitted his involvement in the crime and named the defendant, and another man, Standrius White, as the other two participants.
Police found and questioned White and Eason, and then arrested the men for armed robbery. After their arrest, White and Eason were placed in the back of a patrol car. The patrol car was equipped with a video camera whose microphone recorded a whispered conversation between White and Eason at the time of their arrest; in part of the conversation, one of the men can be heard to say "... he slammed my hand in the door...." In addition, police took DNA swabs from the men's mouths. Laboratory analysis showed that the blood on the McMahens' floor came from the defendant, Geoffrey Eason. Because the men wore masks during the robbery, the victims were unable to identify them.
The state charged both Eason and White with armed robbery with a firearm of both victims. The case was assigned to Judge John Robinson. The defendants joined in a motion to recuse Judge Robinson and a motion to change the venue. *689 The motion to recuse was heard by Judge Bolin. Judge Robinson was called as a witness and testified that he had, for many years, lived three doors down from the McMahens and that he and Mr. McMahen had once been "pretty good" friends and frequently visited each other's homes. The judge had also been friends with Dr. McMahen's father, the former sheriff. However, the judge said that he was no longer close friends with Dr. McMahen and had seen him only rarely since moving away from Springhill in 2000.
In addition, Judge Robinson had only recently placed Eason on probation for another offense at the time Eason committed this offense. The judge said that he was disappointed to hear that Eason was involved and might have voiced that disappointment to others. Judge Robinson stated that neither his prior friendship with the victim nor his recent judicial encounter with Eason would prevent him from presiding over the case in a fair and impartial manner.
After hearing Judge Robinson's testimony, Judge Bolin concluded that Judge Robinson's relationship to the victim was "not of a substantial nature to the extent that it would affect his ability to be fair and impartial." The judge was convinced that Judge Robinson would not be biased, prejudiced or have any personal interest in the result; consequently, the judge found that Judge Robinson could conduct a fair and impartial trial and denied the defendants' motion over their stated objection.
The defendants opted to be tried together. At the outset of the trial after the jury was selected, the judge denied the motion for a change of venue. In addition to the evidence outlined above, Alva Tealer testified at the trial. Pursuant to a plea agreement in consideration of his future testimony, Tealer had already pled guilty to armed robbery and was serving a 10-year hard labor sentence. He said that on the day of the robbery, Eason told Tealer that Eason was looking for a "quick money scheme." Tealer said that Eason armed himself with a gun before Eason, White and Tealer decided to break into a home. Tealer said that they went to Dr. McMahen's home, went into the back door and forced Dr. McMahen to the floor at gunpoint. Tealer said that the robbers took the money from Dr. McMahen's wallet. He said that he was not the one who encountered M.M. Tealer said that the men then took Dr. McMahen's truck and escaped.
With regard to the DNA evidence, the crime lab technician, Pat Wojtkiewicz, testified that samples of blood from a crime scene are often recovered using a cotton swab and that these swabs are then submitted for testing. The technician computed a probability of one in 19.6 trillion that the blood sample submitted from the scene by Coleman belonged to a person other than Eason.
The defendants chose not to testify. On December 4, 2006, the jury convicted both defendants as charged with two counts of armed robbery with a firearm; the verdict was unanimous as to Eason. On March 5, 2007, the court sentenced Eason to serve fifty years' imprisonment at hard labor, for each conviction, without benefit of parole, and the court imposed those sentences concurrently. Eason filed a motion to reconsider sentence, which the trial court denied. Eason now appeals, urging five assignments of error.
LAW AND DISCUSSION
Assignment of Error Number Four: Sufficiency of the Evidence
In the fourth assignment of error, the defendant argues that the evidence was not legally sufficient to support his *690 conviction of two counts of armed robbery with a firearm. More specifically, he challenges the state's proof of his identity through the DNA evidence on the grounds that this evidence could have been improperly collected at the scene by Coleman. Eason urges that the remaining evidence was insufficient to convict him, because the victims could not identify the robbers and because Tealer's testimony was unreliable.
When issues are raised on appeal, both as to the sufficiency of the evidence and as to one or more trial errors, the reviewing court should first determine the sufficiency of the evidence. The reason for reviewing sufficiency first is that the accused may be entitled to an acquittal under Hudson v. Louisiana, 450 U.S. 40, 101 S.Ct. 970, 67 L.Ed.2d 30 (1981), if a rational trier of fact, viewing the evidence in accord with Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), in the light most favorable to the prosecution, could not reasonably conclude that all of the elements of the offense have been proved beyond a reasonable doubt. State v. Hearold, 603 So.2d 731 (La.1992); State v. Bosley, 29,253 (La.App. 2d Cir.4/2/97), 691 So.2d 347, writ denied, 97-1203 (La.10/17/97), 701 So.2d 1333.
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, supra; 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. Hill, 42,025 (La.App. 2d Cir.5/9/07), 956 So.2d 758, writ denied, XXXX-XXXX (La.12/14/07), 970 So.2d 529; 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.
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 applies to the testimony of accomplices.
An accomplice is a competent witness to testify against his co-perpetrator even if the prosecution offers him inducements to testify; these inducements only affect the witness's credibility. State v. Jetton, 32,893 (La.App. 2d Cir.04/05/00), 756 So.2d 1206, writ denied, 00-1568 (La.03/16/01), 787 So.2d 299. The credibility of an accomplice's testimony is not within the province of the court of appeal to decide. Id. Rather, credibility evaluations are within the province of the jury as trier of fact. Id. The fact finder is charged with making a credibility determination *691 and may, within the bounds of rationality, accept or reject the testimony of any witness; thus, the reviewing court may impinge on that discretion only to the extent necessary to guarantee the fundamental due process of law. State v. Casey, 99-0023 (La.01/26/00), 775 So.2d 1022, cert. denied, 531 U.S. 840, 121 S.Ct. 104, 148 L.Ed.2d 62 (2000).
In cases involving a defendant's claim that he was not the person who committed the crime, the Jackson rationale requires the state to negate any reasonable probability of misidentification in order to carry its burden of proof. State v. Hughes, XXXX-XXXX (La.11/29/06), 943 So.2d 1047; State v. Powell, 27,959 (La. App. 2d Cir.4/12/96), 677 So.2d 1008, writ denied, 96-1807 (La.2/21/97), 688 So.2d 520.
In the instant case, the defendant argued to the jury that Chief Coleman's collection of the DNA evidence might have invalidated the results of the scientific testing. To the contrary, the testimony of the crime lab technician, Pat Wojtkiewicz, did not show or even suggest any errors in the collection process. Wojtkiewicz stated that samples are often collected using cotton swabs, and this was the procedure employed by Chief Coleman in collecting the blood from the McMahens' floor. Although Wojtkiewicz said that errors in the collection process can lead to errors in the result, the evidence does not demonstrate that any error occurred in this case. Further, the laboratory evidently had no difficulty in testing the samples provided to it by Chief Coleman. The judge correctly allowed the DNA evidence into evidence, and the jury was thus entitled to rely on this evidence.
The DNA evidence is highly probative of the defendant's guilt in this case. The defendant's blood was found just inside Dr. McMahen's rear door at precisely the point where Dr. McMahen said the armed masked man bled due to having his hand slammed in the door. In addition to the DNA evidence, the jury heard the testimony of Mr. Tealer, who stated that Eason was armed with a firearm and was first through the McMahens' door during the robbery. The evidence presented was sufficient to prove beyond a reasonable doubt that Eason, armed with a firearm, committed the armed robbery with a firearm of Royce McMahen and M.M.
This assignment of error is without merit.
Assignment of Error Number One: Motion to Recuse
The defendant argues that the trial court erred in denying his motion to recuse Judge Robinson, because of the judge's friendship with the victim and prior judicial experience with the defendant. La.C.Cr.P. art. 671 provides, in pertinent part:
A. In a criminal case a judge of any court, trial or appellate, shall be recused when he:
(1) Is biased, prejudiced, or personally interested in the cause to such an extent that he would be unable to conduct a fair and impartial trial;
* * *
(6) Would be unable, for any other reason, to conduct a fair and impartial trial.
This court rejected the identical claim of the defendant co-defendant, Standrius White, in State v. White, 42,725 (La.App. 2d Cir.10/24/07), 968 So.2d 901. A trial judge is presumed to be impartial, and the burden is on the defendant to prove otherwise. State v. Dooley, 38,763 (La.App. 2d Cir.9/22/04), 882 So.2d 731, writ denied, 2004-2645 (La.2/18/05), 896 So.2d 30. In order to obtain a recusation based on bias, prejudice, and personal interest, *692 the party seeking the recusation must establish grounds of a substantial nature based on more than conclusory allegations. State v. Chatman, 37,523 (La. App. 2d Cir.9/24/03), 855 So.2d 875, writ denied, 2003-2821 (La.2/13/04), 867 So.2d 685. La. C. Cr. P. art. 671 does not require the recusal of a trial judge simply on the basis that the trial judge knew the victim's family. State v. Parker, 96-1852 (La.App. 4th Cir.6/18/97), 696 So.2d 599, writ denied, XXXX-XXXX (La.1/9/98), 705 So.2d 1097.
In State v. Gatti, 39,833 (La.App. 2d Cir.10/13/05), 914 So.2d 74, writ denied, 2005-2394 (La.4/17/06), 926 So.2d 511, the court considered whether the trial judge's recusal was required where a personal friendship existed between the judge and the victims. The court held that because there was no evidence that the judge's personal friendship with the victims would have caused the court to reach any conclusion based on bias, prejudice or personal interest, recusal was not warranted.
In White, supra, this court rejected the defendant's assignment of error on the grounds that the defendant "failed to produce evidence that the trial judge's prior relationship with the victim would result in bias or prejudice." On that same ground, the defendant's motion to recuse in the instant case is also without merit.
Additionally, the defendant asserts that the trial judge could not be fair and impartial because the judge had presided over Eason's former criminal proceeding. Jurisprudence has established that a judge who presided over a former trial involving the defendant is not, by that reason alone, required to recuse himself in the absence of a showing of bias or prejudice. See, e.g., State v. Bell, 346 So.2d 1090 (La. 1977). Judge Robinson testified that his prior judicial encounter with the defendant would not cause him to be biased or prejudiced in this case, and Judge Bolin accepted Judge Robinson's testimony as true. There is no showing of error in this regard, so this assignment of error is without merit.
Assignment of Error Number Two: Challenges for Cause
The defendant argues that the trial court erred in denying challenges for cause as to four jurors-Janice Brewton, Patricia Bearden, Robin Chreene-Rolen and Robin Fish. He states that because he exercised all of his peremptory challenges, he was forced to accept jurors that should have been excused.
The state argues that Eason actually exercised only ten of his peremptory challenges in selecting the main jury panel and one challenge as to an alternate juror. The chart of peremptory challenges in the record reflects that the defendant only used ten peremptory challenges, but the transcript shows that the defendant used all twelve of his challenges during the selection of the main panel. The chart is incorrect in attributing the peremptory challenge of jurors Vowell and Carnahan to White when it was Eason who challenged these persons.
La. Const. art. I, § 17(A) provides that a defendant has a right to challenge jurors peremptorily, with the number being fixed by law. In trials of offenses punishable by death or necessarily by imprisonment at hard labor, each defendant shall have twelve peremptory challenges, and the state twelve for each defendant. La. C. Cr. P. art. 799. In this felony case, the defendant was entitled to twelve peremptory challenges.
Prejudice is presumed when a district court erroneously denies a challenge for cause and the defendant ultimately exhausts his peremptory challenges. State v. Lindsey, XXXX-XXXX *693 (La.1/17/07), 948 So.2d 105; State v. Kang, 02-2812 (La.10/21/03), 859 So.2d 649; State v. Robertson, 92-2660 (La. 1/14/94), 630 So.2d 1278. A district court's erroneous ruling which deprives a defendant of a peremptory challenge substantially violates that defendant's rights and constitutes reversible error. Kang, supra. When a defendant uses a peremptory challenge after a challenge for cause has been denied, the defendant must show: (1) erroneous denial of the challenge for cause; and (2) use of all peremptory challenges. Kang, supra.
Because the defendant used all of his allotted peremptory challenges in the selection of the main panel of jurors, prejudice to him is presumed if the trial court erred in denying one of his challenges for cause.
La. C. Cr. P. art. 797 provides, in part:
The state or the defendant may challenge a juror for cause on the ground that:
* * *
(2) The juror is not impartial, whatever the cause of his partiality. An opinion or impression as to the guilt or innocence of the defendant shall not of itself be sufficient ground of challenge to a juror, if he declares, and the court is satisfied, that he can render an impartial verdict according to the law and the evidence;
(3) The relationship, whether by blood, marriage, employment, friendship, or enmity between the juror and the defendant, the person injured by the offense, the district attorney, or defense counsel, is such that it is reasonable to conclude that it would influence the juror in arriving at a verdict;
(4) The juror will not accept the law as given to him by the court; . . . .
The trial judge is vested with broad discretion in ruling on challenges for cause, and his ruling will only be reversed when review of the entire voir dire shows the trial judge abused his discretion. State v. Robertson, supra.
The first juror cited as objectionable was Ms. Janice Brewton. Fourteen years prior to the trial, Ms. Brewton had been employed as Dr. McMahen's veterinary assistant. She held that job for about five years and said that she knew McMahen's family "pretty well." She said that she "can't say these men are guilty because I don't know they are ... but by the same token, just because I was close to Wayne and Beverly I might harbor something inside that I-I just want to be totally honest about the whole thing." She also admitted that she had been the victim of a home burglary. However, she said that she could follow the instructions as given to her by the court and only consider the evidence presented in the courtroom. She agreed that she could serve as a fair and impartial juror. She said that she thought that she could put aside her connection with Dr. McMahen:
I'll be honest, I think I can, but as far as when it comes down to the bottom line, it's like I said, I would have to do what Judge Robinson said and I feel like I could do that.
Eason challenged Ms. Brewton for cause, citing her relationship with Dr. McMahen as evidence that she could not be fair and impartial. The prosecutor urged that Ms. Brewton said that she could put her relationship with the victim aside and be fair. The court stated:
I'll admit on Ms. Brewton when I first heard the state question her and she said she was a former employee and had a fairly close relationship with the family, I'm thinking in my mind this is, you know, obviously a challenge for cause *694 here. But the more I heard her talk and the more I heard her demeanor, she's a pretty independent thinking type lady and I think she was sufficiently rehabilitated. And I do-I think she-she said that she could be, put that aside and be fair and impartial. So I'm going to deny the challenge for cause on Ms. Brewton.
The court noted an objection for that ruling on behalf of both defendants. The defendant peremptorily challenged Ms. Brewton.
The prior employment relationship and friendship between Ms. Brewton and Dr. McMahen was properly the subject of extensive questioning because of the risk of bias or prejudice. See, e.g., State v. Brown, 496 So.2d 261 (La.1986). The record reflects that the attorneys thoroughly examined Ms. Brewton on the potential effect, if any, of her relationship with Dr. McMahen on the juror's fairness or impartiality. Ms. Brewton repeatedly said that she would be able to be fair to both sides despite her prior employment with Dr. McMahen and friendship with the McMahens, and the trial court based its decision upon its observation of the juror's demeanor as she gave her answers. Based on the record, there is no evidence that the trial court erred in accepting Ms. Brewton's answers and explanations.
The second juror at issue was Ms. Patricia Bearden. Ms. Bearden, a Springhill resident, stated:
But we've always been fairly good friends with Wayne [McMahen] and his wife. He was my son's baseball coach. Of course, we had horses and/or dogs all through the years and so Wayne has been our veterinarian and my husband grew up in the same town that Beverly did and worked for her father at one time."
Ms. Bearden admitted that her family had been friends with the McMahens for twenty years, but did not see them as frequently as they used to because their children were no longer in school together. She explained that she saw Dr. McMahen now only when she brought her animals to his office and that she did not socialize with him and his family. When asked if she could be a fair and impartial juror, she first replied, "I hope as a good citizen I could be. Yes, sir. And I would very much try to." She agreed that she could only consider the evidence presented in court and follow the law as given by the judge. She later repeated that she could be a fair and impartial juror despite her friendship with the McMahens. She said that she would not lend Dr. McMahen any more credibility because of her relationship with him.
The defendant challenged Ms. Bearden for cause, citing her relationship with the McMahens. The prosecutor responded that Ms. Bearden now only saw the McMahens in conjunction with Dr. McMahen's veterinary practice and not in a social setting. The court found that Ms. Bearden, like Ms. Brewton, was sufficiently rehabilitated and denied the challenge for cause, and again the court noted for the record an objection on behalf of the defendant to the ruling. Defendant White peremptorily challenged Ms. Bearden.
Ms. Bearden, like Ms. Brewton, had a personal friendship with Mr. McMahen, and like Ms. Brewton, Ms. Bearden repeatedly said that she could be a fair and impartial juror. Ms. Bearden informed the court and the parties that her present relationship with the McMahens was primarily professional, not personal, and that she had not seen them socially since their children were no longer in school. The trial judge was convinced that Ms. Bearden gave genuine answers and could be *695 fair, and this record does not undermine the trial judge's conclusion.
The third juror in question is Ms. Robin Fish. Ms. Fish owns Minden Home Care, a medical equipment service business. She said that the trial was being held at the busiest time of year for her business and that "if I get picked, I'll be having to work nights for sure." She agreed that jury service would cause her some stress or distraction "because I'm the only one that does our billing." When asked if her business concerns would interfere with her concentration and ability to devote time to the criminal case, she said that "it very well could." However, she indicated that she understood the applicable law, that she could judge the witnesses' credibility, and that apart from the concern about her business, she could be a fair and impartial juror.
The defendant challenged Ms. Fish for cause on the ground that her concern about her business and her work schedule would come into play in her deliberations. The prosecutor observed that Ms. Fish's answers "sounded more like a request for a hardship excuse than ... whether she was qualified and could sit as a juror." The court stated:
Oh, there'sI'm sure it's a hardship for her. It's a hardship on everybody up there. But my perception of Ms. Fish is that she'd rather be at work and she doesn't want to be inconvenienced. Well, that's why we have excuses ahead of time for and I could have explored it, you know, more beforehand. I think she's got plenty of sense. I think she could certainly sit here for a day and a half or two and give the trial the attention that it needs without any problem.
The trial court denied the challenge for cause, again noting an objection to the ruling for the defendants. The defendant used a peremptory challenge to excuse Ms. Fish.
This is the type of situation where the trial court's impression of the juror's reasons and demeanor are critically important. It is possible that a juror's concern over work or home life is so great that the juror's ability to be fair and impartial is called into question. Compare, e.g., State v. Gatti, supra.
In the instant case, the court's impression of Ms. Fish's situation was that Ms. Fish would be inconvenienced by her service, but that the inconvenience would not actually impair her ability to be fair despite her stated concerns to the contrary. The judge considered all of the juror's answers to questions and also took into consideration that the trial was likely to be of short duration, both of which were appropriate factors in deciding the likely impact of jury service upon Ms. Fish. Considering the juror's answers during voir dire as a whole and the deference shown to the trial court's findings based upon its observations of the juror, the trial court's decision is not clearly wrong.
The fourth and final juror in question was Christy Chreene-Rolen. Ms. Chreene-Rolen was a hairstylist who did not know any of the people involved in this offense. During questioning, she stated that she felt that the defendant must have done something wrong because he was present in court. She said:
Well, why would he be here if he hasn't done anything wrong? Why would he be charged with things if he hadn't done it?
However, she then agreed that the fact of arrest doesn't necessarily imply guilt and that sometimes people are falsely accused, and then she said:
*696 I'll have to hear all thelook at all the evidence to see [if the defendant is guilty].
Ms. Chreene-Rolen said that she could accept the law as given by the court and could make her determination of guilt from the evidence. She later stated that "there has to be some reason" why a police officer would arrest a person and initially said that she would require the defendant to put on any evidence to overcome her presumption. However, the prosecutor then observed that the juror appeared to be confused and questioned her further. Ms. Chreene-Rolen agreed that she understood that defendants do not have to present any evidence and that their silence could not be held against them. She further agreed that the fact of arrest does not equate to guilt, that guilt must be proven through evidence presented in court, and that she would not allow herself to be swayed by the fact of the defendants' arrest.
The defendants challenged Ms. Chreene-Rolen for cause, arguing that the juror would presume that they were guilty due to the fact of their arrest. The prosecutor responded that some of the questions were confusing and that the juror's answers reflected the confusion, an assertion that the defendants rejected. However, the court stated:
I do think she was confused. There's no doubt about that, but I don't think there's grounds to challenge her for cause. I think she was sufficiently rehabilitated and all.
The court denied the challenge for cause and, like in the other cases, noted an objection for the defendants to the ruling. Mr. White peremptorily challenged Ms. Chreene-Rolen.
The trial court made a finding that this juror was initially confused about the law. This finding is supported by the record of her answers as a whole. As was the case with one of the prospective jurors in Gatti, supra, the juror appeared to be pliable with respect to the questions about the presumption of innocence, but her later answers show, at least on the cold record, that she could understand and follow the law. The trial court was convinced that the juror had a sufficient understanding and acceptance of the law, and that finding is not clearly wrong.
Assignment of Error Number Three: Motion for Change of Venue
The defendant also argues on appeal that the trial court erred in denying his motion for change of venue. The defendant did not object to the denial of this motion, but no objection is necessary to preserve the issue for appeal when the court denies a written motion. La. C. Cr. P. art. 841(B).
The trial court is given much discretion in granting or denying a motion for change of venue. State v. Coleman, 32,906 (La.App. 2 Cir. 4/5/00), 756 So.2d 1218. The defendant carries the burden of showing that there is more than just public knowledge of the facts surrounding the offense. The defendant must show a prevalent "community wide prejudice" that makes a fair trial in that parish impossible. Id. A defendant is not entitled to a jury that is entirely ignorant of his case. State v. Connolly, 96-1680 (La.7/1/97), 700 So.2d 810.
The defendant's argument on appeal only consists of two sentences, which argue that the defendant was unable to get a fair and impartial jury. There is no indication that publicity or any prejudice in the mind of the jurors necessitated a change of venue in this case. Many of the jurors knew little of the case and the jurors who knew the victim convinced the court that they *697 would be able to put that aside and hear the case impartially.
This assignment of error is without merit.
Assignment of Error Number Five: Excessiveness of Sentence.
Finally, the defendant argues that his two fifty-year hard labor sentences, to be served concurrently and without benefit of parole, are excessive. We note that Eason's sentences suffer from the same error patent disability noted by this court in its discussion of the sentences of his codefendant, White: the trial court did not specify an additional term for Eason's use of a firearm.
White and Eason were convicted of two counts of armed robbery with a firearm, a violation of La. R.S. 14:64 and La. R.S. 14:64.3. In both White's case and Eason's case, the trial court imposed two concurrent hard labor sentences without specifying any additional terms of imprisonment under La. R.S. 14:64.3. The majority in White, supra, found the sentences to be indeterminate because of the trial court's failure to impose the additional consecutive terms. The third circuit has followed this court's decision in White in State v. McGinnis, XXXX-XXXX (La.App. 3rd Cir.4/30/08), 981 So.2d 881, 889. See also State v. Birch, 41,979 (La.App. 2d Cir.05/09/07), 956 So.2d 793, where this court found a similar sentence indeterminate and vacated and remanded for resentencing.
Therefore, following the decision in White, supra, we must vacate the defendant's sentence and remand for resentencing, so that the trial court can clarify whether the defendant's two fifty-year hard labor sentences, to be served concurrently and without benefit of parole, include any additional punishment pursuant to La. R.S. 14:64.3.
As we have determined that the defendant's sentence must be vacated, the fifth assignment of error is moot, and the discussion on this subject is pretermitted. On remand the judge will resentence the defendant, and if the defendant believes the sentence imposed upon remand is excessive, he will have the right to appeal that sentence.
CONCLUSION
For the aforementioned reasons, we affirm the defendant's convictions, but vacate his sentences and remand for resentencing.
CONVICTION AFFIRMED; SENTENCE VACATED; AND REMANDED FOR RESENTENCING.
BROWN, Chief Judge, concurs with written reasons.
BROWN, Chief Judge, concurring.
A remand for resentencing is unnecessary. This is not an indeterminate sentence. See concurrence in White, supra. I would affirm both the conviction and sentence.
NOTES
[1] The minor's initials are used in lieu of her name. La. R.S. 46:1844(W). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598472/ | 287 So.2d 914 (1973)
In re Matthew Marshall MORGAN, Jr.
v.
STATE of Alabama.
Ex parte Matthew Marshall Morgan, Jr.
SC 543.
Supreme Court of Alabama.
December 13, 1973.
Roy D. McCord and J. Terry Huffstutler, Jr., Gadsden, for petitioner.
William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Asst. Atty. Gen., for the State.
FAULKNER, Justice.
Matthew Morgan, a youth of 19 years of age, was tried by a jury of Marshall County Circuit Court on an indictment charging him with the unlawful sale of 4 grams of marijuana. He was found guilty. Morgan was afforded an election by the trial judge, to be sentenced under the old Controlled Substance law or the new Controlled Substance law. He elected to be sentenced under the new law and was sentenced to three years in the State penitentiary by the trial judge. His conviction and sentence *915 were affirmed by the Alabama Court of Criminal Appeals.
Morgan was indicted in October, 1971, and tried on November 16 and 17, 1971. He was sentenced on November 17, 1971. His motion for new trial was denied December 20, 1971. He appealed to the Court of Criminal Appeals on December 29, 1971.
While Morgan's case was on appeal, the legislature of Alabama passed the Youthful Offender Act, which became effective February 10, 1972. He filed a petition for a writ of certiorari in this court to the Court of Criminal Appeals, alleging in substance that he is entitled to be treated as a youthful offender and should be punished under the provisions of the Youthful Offender Act.
Act 335, Alabama Legislature, Third Special Session, 1971, known as the Youthful Offender Act, has been codified as Tit. 15, § 266(1) (2) (3) (4) (5) (6), Code of Alabama, 1940, Recompiled 1958.
Section 266(1) provides that "a person charged with a crime which was committed in his minority but was not disposed of in juvenile court and which involves moral turpitude or is subject to a sentence of commitment for one year or more shall and, if charged with a lesser crime, may be investigated and examined by the court to determine whether he should be tried as a youthful offender, provided he consents to such examination and to trial without a jury where trial by jury would otherwise be available to him."
The Act therefore charges the trial judge with the duty to refer any person under 21 years of age, whose case has not been disposed of in the juvenile court and who is charged with a crime involving moral turpitude or is subject to a sentence of confinement for one year or more, to a probation officer to make such investigation requested by the court. Referral in such event is not discretionary, but mandatory, on the part of the trial judge. After the investigation, if the youth consents to examination by the court and trial without a jury, and the court so decides, no further action is taken on the indictment or information unless ordered by the court. After investigation and examination, it is within the discretion of the trial judge whether the youth shall be tried as a youthful offender. The duty is upon the trial judge to call the Act to the attention of the youthful offender, just as much as it is the duty of the trial judge to explain to a defendant his constitutional rights when he enters a plea of guilty.
In the case before us the Act was not effective until February 10, 1972, and the Act is not retroactive. After appeal the trial court lost jurisdiction. We cannot see how the trial judge could call the Act to the attention of Morgan when it was not law at the time of trial. The Alabama Court of Criminal Appeals held in Armstrong v. State and Fowler v. State, 49 Ala.App. 720, 275 So.2d 698 (1972), cert, denied 290 Ala. 256, 275 So.2d 702, that the defendants were not entitled to raise for the first time on appeal that the trial court committed reversible error in not affording them the benefits of the Youthful Offender Act. The function of a writ of certiorari extends only to questions of jurisdiction of a subordinate tribunal, and the regularity of its proceedings. It is to correct errors on the face of the record. See 4 Ala.Dig., and 14 C.J.S. Certiorari § 1 et seq. There is no error on the face of the record.
Affirmed.
MERRILL, HARWOOD, MADDOX and JONES, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599035/ | 729 So.2d 603 (1998)
In re MEDICAL REVIEW PANEL FOR the CLAIM OF Derek DEDE, et al.
No. 98-C-2248.
Court of Appeal of Louisiana, Fourth Circuit.
December 2, 1998.
Rehearing Denied January 29, 1999.
Writ Denied April 9, 1999.
*604 Gregory C. Weiss, Deborah, F. Malveaux, Weiss & Eason, L.L.P., New Orleans, for Defendants-Relators.
Joseph W. Thomas, New Orleans, for Plaintiffs-Respondents.
Before SCHOTT, C.J., and BYRNES, LOBRANO, LANDRIEU and McKAY, JJ.
SCHOTT, Chief Judge.
On the application of defendants, Tulane University Medical Center (TUMC) and Drs. Michael Kiernan, Ralph Corsetti and Rodney Steiner, we grant certiorari to review a judgment of the trial court overruling defendants' exception of prescription.
Pursuant to the Medical Malpractice Act, La. R.S. 40:1299.41, et seq., plaintiffs, Derek Dede and Lisa Washington Savoy, filed a medical malpractice claim with the Louisiana Patients' Compensation fund, alleging that the defendants committed medical malpractice during the placement of a central line in their infant daughter, Destany Washington. Following a premature birth and multiple hospitalizations, Destany was admitted to TUMC on April 20, 1994, with respiratory problems. On May 6, 1994, the TUMC physicians inserted a left femoral central line to provide I.V. access. On May 15, 1994, the physicians discovered that the central line had eroded through the wall of a blood vessel causing fluids to infuse in an area around Destany's spinal cord. The I.V. fluids caused a chemical shock, rendering Destany quadriplegic. On that same day, Dr. Steiner summoned Mrs. Savoy to the hospital and informed her of the complications. According to Mrs. Savoy, she questioned Dr. Steiner as to "whether anybody had done anything wrong," and he told her that nobody had done anything wrong and that it was the result of "complications."
Mrs. Savoy contacted her attorney shortly after Destany became paralyzed. On June 24, 1994, the attorney requested a copy of Destany's medical records from TUMC. TUMC informed him, in writing, that it could not release the records until Destany was released from the hospital and instructed him to request the records when she was discharged.
TUMC discharged Destany on August 10, 1994, at which time she was transferred to Southdown Care Center, a nursing home in Houma. Plaintiffs' attorney never re-requested Destany's TUMC records. On September 23, 1994, Destany was admitted briefly at Children's Hospital in New Orleans for cardiopulmonary related problems. She died at Terrebone General Hospital on October 18, 1994, after a cardiac arrest. Plaintiffs filed their medical malpractice and wrongful death claims with the Patients' Compensation *605 Fund on October 20, 1995, a year and two days after the child died.
Defendants filed an exception of prescription, arguing that the plaintiffs' claims were prescribed pursuant to La. R.S. 9:5628. They contend that the prescriptive period commenced to run no later than May 15, 1994, the date the plaintiffs learned of their daughter's paralysis. In opposition to the exception, plaintiffs argued that they discovered the alleged malpractice when they reviewed a copy of Destany's medical records from Children's Hospital in November 1994.
The trial court held a hearing on the defendants' exception of prescription, at which Dr. Steiner and Mrs. Savoy testified. The trial judge's findings of facts and conclusions were set forth in written reasons for judgment, which read in part:
The defendants informed the child's parents on May 15, 1994, that Destany suffered a well-known complication of placing a central line that caused her quadriplegia. According to Lisa Washington's testimony the defendants specifically told her that Destany's condition was not caused by anything the defendants did wrong or by medical malpractice.
The defendants called Dr. Rodney Steiner as a witness at the hearing. Dr. Steiner testified that he did {not} recall telling Ms. Washington that Destany's condition was not the result of medical malpractice. Dr. Steiner admitted, however, that if Lisa Washington asked him whether Destany's condition was the result of medical malpractice, he would have told her it was not the result of medical malpractice, but a result of a known complication of placing a central line.
Ms. Washington testified that she accepted what she was told by the defendants but had an apprehension that something was wrong. The plaintiffs asked their attorney to obtain the records to verify what they were told by the defendants.
The trial judge cited Griffin v. Kinberger, 507 So.2d 821 (La.1987) for the undisputed proposition that under La. R.S. 9:5628 the question to be addressed was when the plaintiffs possessed actual or constructive knowledge of facts indicating that their child was a victim of a tort. The judge acknowledged that the plaintiffs certainly had a reasonable apprehension that something was wrong when Dr. Steiner informed Mrs. Savoy that Destany was a quadriplegic as a result of a well known complication of placing a central line. However, she further noted that a mere apprehension that something was done wrong is not enough to commence the running of prescription, citing Beth Israel v. Bartley, Inc. 579 So.2d 1066, 1072 (La.App. 4 Cir.1991). In denying defendants' exception, the trial judge concluded that plaintiffs' claim filed on October 20, 1995, was timely under La. R.S. 9:5628 because the plaintiffs first had knowledge that their child may have been a victim of medical malpractice in November 1994 when their attorney received a copy of the Children's Hospital records.[1] We disagree with the trial judge's conclusion and reverse.
La. R.S. 9:5628 provides the prescriptive periods for filing a medical malpractice action. The statute provides in relevant part:
A. No action for damages for injury or death against any physician, chiropractor, nurse, licensed midwife practitioner, dentist, psychologist, optometrist, hospital duly licensed under the laws of this state, or community blood center or tissue bank as defined in R.S. 40:1299.41(A), whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought unless filed within one year from the date of the alleged act, omission, or neglect, or within one year from the date of discovery of the alleged act, omission, or neglect; however, even as to claims filed within one year from the date of such discovery, in all events such claims shall be filed at the latest within a period of three years from the date of the alleged act, omission, or neglect. (emphasis added)
Prescription commences and continues when a plaintiff obtains actual or constructive *606 knowledge of facts indicating to a reasonable person that he or she is a victim of a tort. Griffin v. Kinberger, supra; White v. Willis-Knighton Medical Center, 25,575 (La.App. 2 Cir. 2/23/94), 632 So.2d 1198. The test for determining sufficient knowledge is:
[W]hether the cause of action was known or reasonably `knowable' by plaintiff. ... When a plaintiff has knowledge of facts strongly suggestive that the untoward condition or result may be the result of improper treatment and there is no effort by the health care providers to mislead or cover up information which is available to plaintiff through inquiry or professional medical or legal advice, then the facts and cause of action are reasonably knowable to plaintiff.
Gore v. Snider, 590 So.2d 677, 680 (La.App. 3 Cir.1991)[quoting Harlan v. Roberts, 565 So.2d 482, 486 (La.App. 2 Cir.1990), writ denied, 567 So.2d 1126 (La.1990)]. It is not necessary that a lawyer or doctor tell the plaintiff that he or she has a medical malpractice claim before prescription begins to run; rather, a court may find that a plaintiff had knowledge of the existence of a medical malpractice cause of action based on the plaintiffs background, intelligence, response to symptoms, and other relevant circumstances. Abrams v. Herbert, 590 So.2d 1291, 1296 (La.App. 1 Cir.1991).
In this case, it is apparent from the reasons for judgment that the trial judge believed that Dr. Steiner may have misled Mrs. Savoy when he told her that Destany's paralysis was a result of complications rather than a possible act of malpractice. Yet, aside from giving Mrs. Savoy his opinion that there was no wrong doing on the part of TUMC, there is nothing in the testimony to support a finding that Dr. Steiner's explanation was false. When asked how he explained the matter to Destany's family, Dr. Steiner testified, "I explained to them that the catheter was being used to support Destany where she was getting all of her IV fluids and all of her IV medications had burst through the vein in which it had been placed and that intravenous fluids and medications had gotten out of the blood vessel and into the space around the spinal cord and that this had resulted in the neurological changes that we had seen." When asked if he felt Mrs. Savoy understood the procedure that had occurred to her daughter, he replied, "Yes. As I said, I explained it in very plain, simple words that the fluids were bursting through the blood vessel and administering material around the spinal cord resulting in her paralysis."
In Claim of Aron, 96-2665 (La.App. 4 Cir. 5/21/97), 695 So.2d 553, we rejected the idea that a patient had to be informed by an attorney or physician of possible malpractice before prescription begins to run. In Aron, the plaintiff underwent two surgical procedures, on May 29, 1991 and May 31, 1991. After recovery, the plaintiff complained of facial weakness, double vision, tinnitus and right-sided neurological deficits related to the surgery. On June 2, 1995, the plaintiff filed a complaint with the Patients' Compensation Fund. Defendants filed an exception of prescription and argued that prescription began to run the date of surgery, May 29, 1991. The plaintiff maintained that prescription began to run on August 17, 1994, the date her physician reviewed her hospital records and specifically stated that the surgery was performed improperly and, because the suit was filed within one year of that date, it was timely. In upholding the trial court's judgment sustaining the exception of prescription, we noted that following surgery, recovery and rehabilitation, the plaintiff sought treatment for the neurological deficits. In March of 1992, a physician reviewed her record and opined that the surgeries left her with some residual neurological deficits. Again, in October 1993 and August 1994, two other physicians concluded the same. We held that the plaintiff had sufficient information to excite attention and prompt further inquiry such that prescription began to run right after the surgery.
Our review of the evidence indicates that Mrs. Savoy's testimony does not support the trial judge's finding that prescription had not run prior to November 1994 because the plaintiff had only a mere apprehension that medical malpractice had occurred. At the hearing, Mrs. Savoy admitted that she believed medical malpractice might have taken place on May 15, 1994, the date Dr. Steiner *607 informed her of Destany's paralysis. She testified that although Dr. Steiner told her this was a complication of the procedure and nobody had done anything wrong, she did not believe him. Based on her suspicions, she met with an attorney and asked him to obtain and review Destany's medical records. On cross-examination, Mrs. Savoy specifically testified that between May 15, 1994 and October 18, 1994, the date of Destany's death, she never doubted that malpractice had occurred.
Nonetheless, the plaintiffs argue that the doctrine of contra non valentem agere nulla currit praescripto is applicable to this case and suspends the prescriptive toll of La. R.S. 9:5628.
The Louisiana Supreme Court set forth four exceptional circumstances in which prescription should be suspended. See Corsey v. State, Through Dept. of Corrections, 375 So.2d 1319 (La.1979). The two which are applicable to the present case are: (3) Where the debtor himself has done some act effectively to prevent the creditor from availing himself of his cause of action; and (4) Where the cause of action is not known or reasonably knowable by the plaintiff, even though his ignorance is not induced by the defendant. Id. at 1321-22.
Prescription will be suspended only where the defendant actively engages in a course of action designed to prevent a plaintiff from acting. That is, the defendant's conduct must be more than a mere neglect or a misstatement, it must constitute a fraud, a deliberate concealment or a breach of duty to disclose. In re Medical Review Panel for Claim of Lionel Milton, 593 So.2d 795 (La. App. 4 Cir.1992).
Notwithstanding Mrs. Savoy's admission that Dr. Steiner informed her of her daughter's paralysis on May 15, 1994 and she suspected medical malpractice at that time, the trial judge concluded that in November 1994, when their attorney reviewed Destany's Children's Hospital discharge summary, the plaintiffs first had knowledge that Dr. Steiner's explanation was not completely true and that Destany may have been a medical malpractice victim. In reviewing the Children's Hospital discharge summary, the trial judge found that "the description of what happened to Destany during her TUMC hospitalization differed sharply from what the plaintiffs were told by the defendants." Unlike the trial judge, our review of the evidence does not support this finding.
The Children's Hospital discharge summary merely confirms Dr. Steiner's explanation to Mrs. Savoy and does not contain any new information that was not available in TUMC's medical records. For instance, the Children's Hospital discharge summary refers to Destany's stay at TUMC and states:
During this hospital course, the patient appeared septic according to the [TUMC] Discharge Summary, and IV antibiotics were started from the femoral line. At some point during this time, the line was noted to flush, but would not draw back. At that time, a fluoroscopy study was done, which showed that the catheter was in the epidural space.
This same language is repeated throughout Destany's TUMC medical records, indicating that defendants did not conceal the fact that the catheter was in the epidural space. Furthermore, plaintiffs have not alleged fraud nor have they alleged that the defendants acted with intent to deliberately withhold information from them. To the contrary, TUMC informed plaintiffs' attorney in writing that Destany's TUMC medical records would be readily available for his review on the date of Destany's discharge from TUMC and he should request them at that time. Although Destany was discharged on August 10, 1994, plaintiffs' attorney did not re-request the medical records. In view of the evidence and testimony before us, we find the doctrine of contra non valentum is not applicable to this case.
In Taylor v. Giddens, 618 So.2d 834, 842 (La.1993), the Louisiana Supreme Court concluded that a survival action in a medical malpractice case is governed by the prescriptive period contained in La. R.S. 9:5628(A), however the prescriptive period of a wrongful death action is governed by La. C.C. art. 3492 which provides for a one year prescriptive period from the date of the decedent's death.
*608 Clearly, the plaintiffs had sufficient information to excite their attention and prompt further inquiry into a possible medical malpractice action on May 15, 1994. Thus, prescription on their survival action based on medical malpractice commenced on May 15, 1994, and prescribed May 15, 1995. Similarly, prescription on the wrongful death action began on October 18, 1994, the date of Destany's death, and prescribed on October 18, 1995, two days before the plaintiffs filed their complaint with the Patients' Compensation Fund. In view of this, we find the trial court erred in denying the defendants' exception of prescription.
Accordingly, the judgment of the trial court overruling defendants' exception of prescription is reversed. The exception of prescription is sustained and plaintiffs' claims against defendants are dismissed.
REVERSED AND RENDERED.
McKAY, J., dissents.
McKAY, J., dissenting.
I respectfully dissent with the majority opinion in this case. It is my opinion that there were sufficient grounds for the trial court to deny defendant's exception of prescription. Whether a particular plaintiff knows of the existence of his medical malpractice cause of action at a particular time must be decided based on the facts of the case. In the instant case the decedent's mother stated that she "believed" as early as May 15, 1995 that her daughter's injuries were a result of medical malpractice. However, the decedent's parents did not review her medical records until November 1994, the month following her death. What constitutes mere apprehension and what constitutes sufficient information to commence the running of prescription is basically a fact question to be decided by the trial court. The trial court found that plaintiffs action had not prescribed. In my opinion that finding was not manifestly erroneous. Therefore, I would affirm the trial court's ruling denying defendant's exception of prescription.
NOTES
[1] The trial court did not address the prescription issue in terms of the wrongful death claim. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598492/ | 287 So.2d 733 (1974)
Margaret Delozier KELLAM and Morley L. Kellam, Appellants,
v.
Hugh Hammon THOMAS and United States Fidelity and Guaranty Company, a Maryland Corporation, Appellees.
No. 72-362.
District Court of Appeal of Florida, Fourth District.
January 11, 1974.
J. Jay Simons and Henry L. Kaye of Simons & Schlesinger, Hollywood, for appellants.
Michael C. Spring and Steven R. Berger of Carey, Dwyer, Austin, Cose & Selwood, Miami, for appellees.
OWEN, Chief Judge.
Plaintiffs in a personal injury action suffered an adverse jury verdict and judgment. The sole point they raise on this appeal is whether the court erred in allowing defendant, whose credibility was attacked by a prior inconsistent statement, to put into evidence over objection his prior consistent statement.
The defendant testified on direct examination that Mrs. Kellam (plaintiff wife) had stopped her car at a railroad crossing because of an approaching switch engine and then, in order to avoid the crossing arm striking her car, she had put the car *734 into reverse causing it to strike the defendant's car which by that time was already stopped to the rear of Mrs. Kellam's car. On cross-examination defendant admitted that he had signed a written statement more than a year after the accident in which he had said that he did not think there was a crossing arm at the crossing. To the extent that such statement could be considered inconsistent with his trial testimony, the defendant's credibility was thereby impeached. On re-direct examination defendant identified a written statement he had signed approximately one month after the accident, which statement was consistent with his trial testimony. This latter statement, placed in evidence over plaintiffs' objection, is the subject of the point on appeal.
In Florida, as well as in most other jurisdictions, the general rule is that a witness's testimony may not be corroborated or bolstered by his own prior consistent statement.[1] However, when an attempt is made to impeach the credibility of the witness, and the basis of the impeachment is such that in fairness to the witness evidence of the prior consistent statement would tend to weaken or destroy the force of the impeaching evidence, an exception to the general rule is generally made.
One such exception is when the attempted impeachment is on the basis of a recent fabrication.[2] See, Van Gallon v. State, Fla. 1951, 50 So.2d 882; Allison v. State, Fla.App. 1964, 162 So.2d 922; Wofford Beach Hotel, Inc. v. Glass, Fla.App. 1964, 170 So.2d 62; Jackman v. State, Fla.App. 1962, 140 So.2d 627.[3] Another exception to the general rule is recognized when the basis of the attempted impeachment is by a showing of bias, interest, corruption or other motive to falsify, and the corroborating consistent statement is shown to have been made at a time prior to the existence of a fact said to indicate bias, interest, corruption or motive to falsify. In such case the prior consistent statement effectively destroys the force of the impeaching evidence.[4] Likewise, an exception to the general rule is justified when the attempted impeachment is on the basis of a prior inconsistent statement (self-contradiction), and there is an issue as to whether the witness did, in fact, utter the self-contradiction. In such case, the prior consistent statement is receivable, not as corroborating the witness's trial testimony, but as corroborating his denial of having uttered the contradictory statement.
But where, as in the case at bar, the credibility of the witness is impeached on the basis of a prior inconsistent statement *735 and there is no issue as to whether the witness has, in fact, uttered the prior self-contradiction, the general rule is applicable and evidence of a prior consistent statement is inadmissible. The rationale is thus explained by Wigmore: "[S]ince the self-contradiction is conceded, it remains as a damaging fact, and is in no sense explained away by the consistent statement. It is just as discrediting, if it was once uttered, even though the other story has been consistently told a score of times."[5] The error here is clear.
We are of the opinion that on this record the error was clearly harmless and does not require a reversal.[6] If the defendant's credibility as a witness was, in fact, impeached in any degree by the supposed inconsistency, the prior consistent statement hardly could be said to have the effect of rehabilitating his credibility. As we have indicated above the value of the impeaching testimony lies not in its testimonial value, but in establishing the existence of the self-contradiction which once shown, is not erased in the least by showing the existence of the prior consistent statement. It is true that normally some prejudicial harm could result should the jury improperly attach testimonial value to the inadmissible statement as substantive evidence tending to prove the fact in issue (i.e., in this case, the existence of crossing arms at the crossing), rather than accepting such evidence merely for the purpose of testing the credibility of the witness. On this record there is no reason to believe that the jury was improperly influenced in that regard because photographs of the accident scene unequivocally established as a fact that the crossing was guarded by crossing arms.
Affirmed.
WALDEN and DOWNEY, JJ., concur.
NOTES
[1] Van Gallon v. State, Fla. 1951, 50 So.2d 882; IV Wigmore on Evidence, Section 1124; 75 A.L.R.2d 918.
[2] Recent fabrication (also called recent contrivance by some writers) should be distinguished from impeachment on the basis of bias, interest, corruption or other motive to falsify. It should also be distinguished from impeachment by prior inconsistent statement (self-contradiction) although it is akin in this respect, as noted by Wigmore: "The charge of recent contrivance is usually made, not so much by affirmative evidence, as by negative evidence that the witness did not speak of the matter before, at a time when it would have been natural to speak; his silence then is urged as inconsistent with his utterances now, i.e., as a self-contradiction... . The effect of the evidence of consistent statements is that the supposed fact of not speaking formerly, from which we are to infer a recent contrivance of the story, is disposed of by denying it to be a fact, inasmuch as the witness did speak and tell the same story... ." IV Wigmore, Section 1129.
[3] While the language used in the opinions in both the Wofford Beach Hotel case and the Jackman case is susceptible of the interpretation that a charge of recent fabrication is the only exception to the general rule that is recognized in this jurisdiction, Judge Carroll's opinion for the court in the case of Allison v. State reflects the correct view that attempted impeachment of the witness on the basis of recent fabrication is only one of the several recognized exceptions to the rule.
[4] IV Wigmore, Section 1128.
[5] IV Wigmore, Section 1126.
[6] Section 59.041, F.S. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598495/ | 287 So.2d 434 (1973)
Mary Hall Carlson THIBODEAUX
v.
Mary Helen Bryant HILLIARD and James Hilliard.
No. 47320.
Supreme Court of Mississippi.
December 17, 1973.
*435 Tucker & Tucker, Tunica, for appellant.
Johnson & Adams, Senatobia, for appellees.
SMITH, Justice:
Mary Hall Carlson Thibodeaux filed a petition in the County Court of Tunica County against appellees, Mary and James Hilliard, praying for issuance of a writ of habeas corpus requiring them to produce Robert Earl Carlson, minor child of petitioner, whom she alleged to be wrongfully detained by appellees. She alleged that she was entitled to custody of the child and prayed that custody of such child be awarded to her. The writ was issued and, after an extended evidentiary hearing, the court entered a decree declining to award custody to appellant and confirming custody in appellees. From that decree this appeal has been prosecuted.
The trial court concluded from the evidence before him that the child had been abandoned by its mother, the appellant, and that it would be to the child's best interest to remain in the custody of the appellees.
Appellant, in seeking reversal, cites the several cases decided by this Court in which it has been said repeatedly that the child's best interest is the crucial consideration in custody cases such as this and that there is a presumption that the child's best interest will be served by the award of its custody to its parent or parents as against other relatives or third parties. Newman v. Sample, 205 So.2d 650 (Miss. 1968); Reynolds v. Davidow, 200 Miss. 480, 27 So.2d 691 (1946); Stegall v. Stegall, 151 Miss. 875, 119 So. 802 (1929); Nickle v. Burnett, 122 Miss. 56, 84 So. 138 (1920); Hibbette v. Baines, 78 Miss. 695, 29 So. 80 (1900).
Bearing in mind these cases in which the principles referred to have been firmly established in the jurisprudence of this State, the record made at the trial of this case has been examined with great care. Narration here of the unhappy facts and circumstances of this case would serve no useful purpose. The record reflects a number of irreconcilable conflicts in the evidence offered by the contending parties, including testimony as to statements said to have been made by appellant as to the child's paternity, as well as to the purpose and intent of the parties at the time the child had been left with appellees by appellant.
Notwithstanding the presumption that it is to the child's best interest to be placed with its parents, where evidence is offered touching this question and such evidence is in substantial conflict in its material aspects, it becomes a matter for the trial court, as a trier of facts, to decide the issues upon the evidence. In so doing, he is the judge of the credibility of the witnesses and the weight of the evidence. In reviewing the trial court's decision in such a case this Court will accept as established all that the evidence proves or reasonably tends to prove, together with all reasonable *436 inferences to be drawn from it, which support the findings of the trial court. If, when so reviewed, there is evidence sufficient to support the trial court's findings, such findings will not be disturbed on appeal. We are unable to say that the trial court was manifestly wrong in finding from the evidence that appellant did, in fact, abandon the child and that its best interest will be served by allowing it to remain with the appellees. Therefore, the decree appealed from must be affirmed.
Affirmed.
GILLESPIE, C.J., and PATTERSON, SUGG and WALKER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598498/ | 287 So.2d 599 (1973)
Jerome C. HOLLAND, Plaintiff-Appellant,
v.
Charles E. BUCKLEY et al., Defendants-Appellees.
No. 12176.
Court of Appeal of Louisiana, Second Circuit.
November 13, 1973.
Rehearing Denied January 9, 1974.
Writ Granted February 1, 1974.
Love, Rigby, Dehan & Love, by Kenneth Rigby, Shreveport, for plaintiff-appellant.
Cook, Clark, Egan, Yancey & King, by Steven H. Beadles, Shreveport, for defendants-appellees.
Before BOLIN, PRICE and WILLIAMS, JJ.
En Banc. Rehearing Denied January 9, 1974.
WILLIAMS, Judge.
Appellant Jerome C. Holland brought this ex delicto action based on an injury received from a German shepherd dog *600 owned by Charles E. Buckley, Jr., residing with his father. The Buckleys are insured by a standard homeowners' policy issued by Aetna Casualty and Surety Company.
The trial court concluded there was no evidence the German shepherd dog was a vicious animal with dangerous propensities and dismissed the suit.
Holland was walking his wife's French poodle on the sidewalk opposite the Buckley residence. The German shepherd, "Candy", was on the front lawn where the dog had been released by Buckley, Jr. to exercise. Both Buckleys were present when the dog was brought to the front lawn but shortly thereafter Buckley, Jr. left to obtain food for the animal. During the short period of his absence, the German shepherd suddenly ran across the street, picked up the poodle and threw it to the sidewalk. Holland picked up the poodle while the German shepherd continued to attempt to reach the poodle. During one such attempt appellant was bitten on the forearm resulting in a one and onehalf inch gash and bruises.
Meanwhile Buckley, Sr. was attempting to recall the German shepherd and was immediately successful. In conversation following this unfortunate incident, appellant contends Buckley, Jr. expressed his sorrow, was unable to explain his dog's action, and stated the German shepherd had a tendency to "attack" smaller dogs. Buckley, Jr. denies making such a statement, but concedes he may have used the word "chase" other dogs.
The German shepherd had been through obedience training and was considered by all neighbors and the mailman friendly and playful. Only one witness for Halland declared "Candy" had previously barked at his grandson's dog, but on being commanded to "get" turned and left.
We concur with the trial court there is no proof of any dangerous propensities in the German shepherd dog, nor any knowledge of such propensities on the part of Buckley, Jr. or his father.
Appellant concedes our present jurisprudence is in accord with the holding of the trial court. In Cox v. Reliance Insurance Company, 284 So.2d 370 (La.App. 2d Cir. 1973) decided by this court October 10, 1973, we stated:
"* * * Appellant urges that we reconsider the rules clearly enunciated by this court in Rolen v. Maryland Casualty Company, 240 So.2d 42 (La.App.2d Cir. 1970) writs refused 256 La. 1149, 241 So.2d 252 (1970), where we held that in order to recover for injuries caused by a domesticated animal, the plaintiff has the burden of proving:
(1) The existence of a dangerous propensity of the animal inflicting the damage, and
(2) Knowledge of such propensity on the part of the owner of the animal.
"All of the arguments advanced by appellant based on the codal articles, jurisprudence and policy considerations were fully considered and discussed in the Rolen opinion. . . ."
We adhere to our ruling in the Cox and Rolen cases.
Appellant argues the Supreme Court of Louisiana would now view this case as one of strict liability for the owner of a domesticated animal under LSA-C.C. Art. 2321 which states:
"The owner of an animal is answerable for the damage he has caused; but if the animal had been lost, or had strayed more than a day, he may discharge himself from this responsibility, by abandoning him to the person who has sustained the injury; except where the master has turned loose a dangerous or noxious animal, for then he must pay for all the harm done, without being allowed to make the abandonment."
Thus appellant contends this court should overrule its previous legal principles followed and approved by the Louisiana *601 Supreme Court. See Mercer v. Marston, 3 La.App. 97; Rolen v. Maryland Casualty Company, 240 So.2d 42 (writs refused, 256 La. 1149, 241 So.2d 252 (La.App.2d Cir. 1970); and Losch v. Travelers Insurance Company, 264 So.2d 240 (La.App.4th Cir. 1972) writs refused.
Such action would be solely within the authority of the Louisiana Supreme Court. In Johnson v. St. Paul Mercury Insurance Company, 256 La. 289, 236 So.2d 216, the court stated:
"However, when by repeated decisions in a long line of cases, a rule of law has been accepted and applied by the courts, these adjudications assume the dignity of jurisprudence constante; and the rule of law upon which they are based is entitled to great weight in subsequent decisions.. . ." [236 So.2d 216, 218]
For the reasons assigned, the judgment of the trial court is affirmed at appellant's cost.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598528/ | 287 So.2d 637 (1973)
Clyde S. SIMMONS and John A. Simmons, Plaintiffs and Appellants,
v.
F. E. HERNANDEZ et al., Defendants and Appellees,
v.
SLIMAN ENTERPRISES, INC., Defendant-Third Party Plaintiff-Appellant.
No. 4375.
Court of Appeal of Louisiana, Third Circuit.
November 30, 1973.
Rehearing Denied January 21, 1974.
Writ Refused March 8, 1974.
*638 Godfrey & O'Neal by John P. Godfrey, Many, for plaintiffs and appellants.
Hall & Coltharp by L. H. Coltharp, Jr., DeRidder, Gold, Hall, Hammill & Little by Donald Sharp, Alexandria, Jack L. Simms, Jr., Leesville, for defendants and appellees.
Before FRUGE, MILLER and DOMENGEAUX, JJ.
DOMENGEAUX, Judge.
This case arises out of an accident which happened when Mrs. Clyde S. Simmons, who was 66 years old at the time, fell in the entranceway of a hardwarefarm supply store in Leesville, Louisiana. This suit was originally brought by Mrs. Simmons and her husband against:
(a) the lessee, occupier of the building F. E. Hernandez, d/b/a Hernandez Hardware Co., and Hernandez Farm Supply, Inc.
(b) the lessee's insurerTraders and General Insurance Co.
(c) the City of Leesville, Louisiana.
Thereafter by amended and supplemental petition plaintiffs brought in as defendant, Sliman Enterprises, Inc., the owner-lessor of the building. Sliman Enterprises, Inc., thereupon filed a third party petition against defendant lessee and its insurer alleging that in the event they were found guilty of any negligence, according to the terms of a written lease between the parties, the lessor-owner was entitled to full indemnity from the lessee and its insurer. They additionally sought attorney fees for defending the action.
After trial on the merits, judgment was rendered in favor of the defendants, dismissing plaintiffs' suit at their cost. From that judgment plaintiffs, and also the defendant, Sliman Enterprises, Inc., have appealed.
The record shows that on June 16, 1971, a bright and clear day, at approximately 10:00 A.M. Mrs. Clyde Simmons fell when she stepped from the sidewalk toward or into the entranceway of the aforementioned place of business. In the fall she was projected forward some four or five feet into the doors of the business establishment, sustaining injuries to her head and a fracture of her right arm.
The entranceway can be described as follows: The street on which the store is located runs north and south with the defendant's business establishment being on the west side. The entrance to the store building, a steel grating, and the floor of the store building itself is level. However, because the street itself is located on a slight incline, the sidewalk is elevated several inches above the floor level of the store at the northern corner of the store facing the street. The same sidewalk surface drops below the floor level of the building as it proceeds southward, so that about the center of the entrance to the store there is a point where the sidewalk and the floor to the entrance are at the same level.
It was at this northern corner that plaintiff, while approaching from the north, turned to her right, stepping from the sidewalk into the entrance of the store. The elevation of the sidewalk at this point was approximately 1½-2 inches above the level of the store entrance.
On the day of the accident Mrs. Simmons and two of her close friends, Mrs. Clarence Woods and her daughter, Judy Bodie, had come to this section of Leesville to shop. They had been to other stores in the immediate vicinity and thereafter had come to the defendant's place of business in order to buy some plaster of Paris. As the three strolled in a southern direction, plaintiff, Mrs. Simmons, was *639 walking on the inside of the sidewalk, with the places of business to her immediate right. Mrs. Woods was walking next to plaintiff on the street side with Mrs. Bodie following behind.
Plaintiff testified that as she turned to leave the sidewalk and enter the store entrance she lost her balance and fell. She further testified that she had not been to this particular store for five or six years, that she did not know there was a step down from the sidewalk to the entranceway, and that she did not look to see if there was such a step down. Instead the plaintiff was concentrating her attention on the doors of the business establishment to determine if they opened into the store or out toward the street.
Mrs. Bodie testified that she herself saw the step down before Mrs. Simmons fell and that there was nothing to keep one from observing it. Neither she nor Mrs. Woods remembered any display of merchandise which might have diverted plaintiff's attention.
Plaintiffs allege that defendants (1) failed to maintain the sidewalk and building entranceway in a safe condition, (2) allowed a trap to be created by the deceptive drop off, and (3) breached their respective duties to the plaintiff-pedestrian-invitee. Defendants deny any liability to plaintiffs by virtue of strict liability under Civil Code Article 2322 or under traditional negligence theory, and alternatively allege the contributory negligence of Mrs. Simmons.
As has been often observed by the courts, when a suit is predicated upon an allegation of negligence and the defense thereto is a denial of negligence joined with an alternative plea of contributory negligence, it is often expedient to initially consider the plea of contributory negligence. For if the facts in our case disclose the existence of contributory negligence (negligence in the case of Article 2322) on the part of plaintiff, without which the accident would not have occurred, it would then be unnecessary for us to determine whether any or all of the defendants would be guilty of primary negligence or liable under Article 2322.
The trial court found the following:
(a) The accident was on a bright summer day with visibility good.
(b) The plaintiff had good eyesight and there was nothing to keep her from seeing the "step down" if she had looked.
(c) By her own testimony plaintiff was not looking at the entrance or the sidewalk when she turned to enter the building, but instead was concentrating her attention to the doors of the business establishment to determine if they opened out toward the street or into the store.
(d) The existence of the different levels at the point in question was apparent and obvious; no optical illusion existed to pedestrians approaching the entranceway.
(e) Many people had travelled over this area for at least 50 to 60 years without a mishap.
(f) Plaintiff had travelled on this street very often, although not to this exact store in the past 5 to 6 years, and had been in and out of the television cable station many times next door, which had similar footing.
The conclusion of the district judge was that the accident was due entirely to the inattentiveness of the plaintiff and her failure to observe the obvious and apparent circumstances as she turned to leave the sidewalk and enter the entrance of the building. He further concluded that the entranceway was a safe one, and not inherently dangerous or creating a trap for those exercising ordinary care and prudence. As a result defendants were not guilty of any negligence.
From a thorough investigation of the testimony and evidence presented we can *640 find no manifest error in the trial judge's conclusions as to the negligence of plaintiff Mrs. Simmons. Therefore we need not pass upon the conclusions of the trial judge as to the condition of the passageway and the consequent freedom of negligence on the part of the defendants.
In this Court plaintiffs urge as one of their assignments of error that the district court erred in its determination of the degree of care that a pedestrian must take under similar circumstances. They contend that:
(1) A pedestrian may assume that a sidewalk is safe and is not required to bolt his eyes to the pavement before taking every single step.
(2) There is no duty to see everything visible to the eye.
(3) There is an unquestionable right of a pedestrian to assume that the walkway is safe.
For the above propositions defendant cites Holbrook v. City of Monroe, 157 So. 566 (La.App.2nd Cir. 1934), and White v. City of Alexandria, 216 La. 308, 43 So.2d 618 (1949). In Holbrook the plaintiff stepped into an open water cut-off box only 2½ inches in diameter on the same level as the sidewalk. Therein the court stated:
"All that is required of a pedestrian upon a sidewalk is ordinary (emphasis ours) care and this does not necessitate his looking constantly where he is going. He has a right to assume the sidewalk is safe for travel, and where one sustains injuries by reason of the unsafe condition of a sidewalk, the burden to show that he was not using ordinary care, or contributed to such injuries by his own negligence, rests upon the corporation."
In White the Supreme Court reversed an appellate court decision allowing recovery for a sidewalk accident wherein the plaintiff fell when she struck her foot against an elevated part of the sidewalk while hurrying to church one night. The Court found that the irregularity was readily and easily observable both during the daytime and at night by anyone proceeding along the walk prudently. The Court therein also made the often quoted following statement:
"Thus, a municipality is not an insurer of the safety of pedestrians. It must keep the sidewalks reasonably safe, but the maintaining of them in perfect condition is not necessary. To render it liable in damages the defect complained of must be dangerous or calculated to cause injury. Defects in sidewalks that are not in the nature of traps, or from which danger cannot reasonably be anticipated, provide no actionable negligence. Such ways of passage are intended for public use, of course, and a pedestrian is entitled to assume that they are not dangerous. Further, he is not required to constantly observe the surface of the walk or to exercise the care that would be necessary in traversing a jungle. However, he cannot be completely oblivious of its condition; he must exercise ordinary care when using it, having in mind the well recognized fact that throughout every city of any size in this state there exist irregularities in the walkways brought about by natural causes such as rains, expansion, soil erosion and tree roots.
For determining what is a dangerous defect in a sidewalk (that which renders the municipality responsible in damages to a pedestrian injured as a consequence thereof) there is no fixed rule; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question of whether or not the walk was maintained in a reasonable safe condition for persons exercising ordinary care and prudence."
As can be readily observed, plaintiffs' blanket assertions, when read in context with the entirety of the foregoing cases, *641 lend credence to the trial judge's conclusions in our case.
The "step down" in the entranceway was clearly and plainly visible. Plaintiff was walking in the daylight hour of ten o'clock in the morning. Mrs. Simmons can give no reason for not having observed the change in elevation. We must therefore conclude, as did the trial judge, that the sole and proximate cause of this accident was the inattention of Mrs. Simmons and her failure to observe what was clear and visible. We believe and so hold that had Mrs. Simmons exercised ordinary care she would have observed and avoided the uneven walk at her feet.
Plaintiffs further contend that the trial court erred in finding contributory negligence on the part of Mrs. Simmons without first finding that she was familiar with the hazardous conditions. After a reading of the numerous cited cases for this proposition it is obvious to this Court that it is not incumbent upon a defendant alleging contributory negligence to prove familiarity with the hazardous conditions before the defense can be proven. This is only one of the factors which can help substantiate this defense.
On the third party demand and appeal by Sliman Enterprises, Inc. for attorney fees allegedly owed it by defendant-lessee and its insurer, we must turn to the language of the lease contract. Under that lease, the lessee agreed as part of the consideration of the lease "to take out and pay for a policy of liability insurance to protect said Lessors and itself from any loss caused by, or resulting from, any such personal injury or property damage." (emphasis ours). As can readily be seen this liability clause does not specifically provide for attorney's fees. As we said in Roberie v. Sinclair Refining Co., 252 So.2d 488, 497 (La.App.3rd Cir. 1971):
"Our jurisprudence is well settled that attorney's fees may not be allowed unless they are particularly authorized by law or by the contract between the parties. Chauvin v. La Hitte, 229 La. 94, 85 So. 2d 43 and cases cited therein. This court has specifically held that general liability clauses which require one party to indemnify another and hold him harmless from all cost and damage which the latter might suffer, do not encompass liability for attorney's fees within their purview, and we consider ourselves bound by our prior decision in this regard. E. E. Rabalais & Son, Inc. v. United Bonding Ins. Co., La.App., 226 So.2d 528, writ refused, 254 La. 862, 227 So.2d 597. If it were intended between the parties that attorney's fees were to be included in the hold harmless and liability clauses, it would have been a simple matter to so specifically provide."
Accordingly, we feel that Third Party Plaintiff, Sliman Enterprises, Inc., is not entitled to recover attorney's fees for its defense of the present suit.
Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed in the proportions of three-fourths to plaintiffs-appellants, Mr. and Mrs. Simmons, and one-fourth to third party plaintiff-appellant, Sliman Enterprises, Inc.
Affirmed.
ON APPLICATION FOR REHEARING
PER CURIAM.
In our original opinion we used the following language in refacing our discussion of the plaintiff's contributory negligence: "For if the facts in our case disclose the existence of contributory negligence (negligence in the case of Article 2322) on the part of plaintiff, without which the accident would not have occurred, it would then be unnecessary for us to determine whether any or all of the defendants would be guilty of primary negligence or liable under Article 2322."
*642 This language was not intended to conflict with the Supreme Court decision of Langlois v. Allied Chemical Corporation, 258 La. 1067, 249 So.2d 133 (1971), wherein Justice Barham indicated that in strict liability situations negligence is not an ingredient of fault, nor is contributory negligence a defense. However, assumption of risk was held to be a defense to strict liability. Assumption of risk was not pleaded in the present suit. Therefore, from the Langlois interpretation we are dictated in our case to first make a determination upon strict liability before we can turn to negligence and contributory negligence theory. The trial judge, in denying the application of strict liability, found that the entranceway in question was a safe one, and not inherently dangerous or creating a trap for those exercising ordinary care and prudence. Under the facts elicited at trial and the evidence presented, we concur in this finding and so hold that the defendants were not liable by virtue of strict liability theory.
With this clarification, we deny the application for rehearing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598535/ | 995 F.Supp. 935 (1998)
Debra WALDRON, Plaintiff,
v.
Cynthia G. PIERRE, et al., Defendants.
No. 97 C 5854.
United States District Court, N.D. Illinois, Eastern Division.
March 12, 1998.
Debra Waldron, Arlington Heights, IL, prose.
John C. Hendrickson, U.S. E.E.O.C., U.S. Attorney's Office, Chicago, IL, for Defendants.
*936 MEMORANDUM OPINION AND ORDER
ALESIA, District Judge.
Before the court are two motions filed in this case. The first is defendant the United States Equal Employment Opportunity Commission's ("the EEOC") motion to dismiss plaintiff Debra Waldron's ("Waldron") complaint as against the EEOC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The second is a motion for summary judgment filed by Waldron. For the reasons that follow, the court (1) grants the EEOC's motion to dismiss and (2) denies Waldron's motion for summary judgment.
I. BACKGROUND
Plaintiff Debra Waldron has filed a pro se complaint against defendants the EEOC and Cynthia Pierre ("Pierre"), who is the Deputy Director of the Chicago District Office of the EEOC. Essentially, Waldron's complaint makes two claims: (1) that the EEOC wrongfully refused to pursue her charge of discrimination against her former employer and (2) that the EEOC actually settled her claim against her former employer for $126,000 and Pierre took this money for her own personal use instead of giving the money to Waldron.
This matter is currently before the court on two motions. The first is the EEOC's motion to dismiss Waldron's complaint as against the EEOC pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The EEOC argues that it should be dismissed as a defendant (1) pursuant to Rule 12(b)(1) because the court does not have subject matter jurisdiction and (2) pursuant to Rule 12(b)(6) because the complaint fails to state a claim. The second motion is Waldron's motion for summary judgment.
II. DISCUSSION
The EEOC has filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The court must consider the 12(b)(1) motion first because dismissal under rule 12(b)(1) would render the EEOC's 12(b)(6) motion and Waldron's summary judgment motion moot. Coker v. Transworld Airlines Inc., 957 F.Supp. 158, 161 (1997).
The EEOC argues that Waldron's complaint should be dismissed as against the EEOC pursuant to Rule 12(b)(1) because this court does not have subject matter jurisdiction. Unlike state courts, federal courts are courts of limited subject matter jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). Federal courts only have the power to hear a case if that power is granted by the Constitution and authorized by statute. Id. The presumption is that a cause lies outside of this limited jurisdiction. Id. The burden of establishing the contrary rests upon the party asserting jurisdiction. Id.
When ruling on a motion to dismiss for lack of subject matter jurisdiction, the district court must accept all of the complaint's well-pleaded factual allegations as true and draw all reasonable inferences from those allegations in plaintiff's favor. United Trans. Union v. Gateway W. Ry. Co., 78 F.3d 1208, 1210 (7th Cir.1996). When reviewing pro se complaints, the court must employ standards less stringent than if the complaint had been drafted by counsel. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). Finally, when ruling on a 12(b)(1) motion, "[t]he district court may properly look beyond the jurisdictional allegations of the complaint and view whatever evidence has been submitted on the issue to determine whether in fact subject matter jurisdiction exists." Capitol Leasing Co. v. FDIC, 999 F.2d 188, 191 (7th Cir.1993).
The first of Waldron's two claims is that the EEOC and its employees failed to pursue Waldron's claim against her former employer. Waldron argues that this conduct violates Title VII of the Civil Rights Act of 1964 ("Title VII"). However, "[i]t is well settled law ... that Title VII does not provide either an express or implied cause of action against the EEOC to challenge its investigation and processing of a charge." McCottrell v. EEOC, 726 F.2d 350, 351 (7th Cir.1984). Further, a plaintiff has no right under the Constitution to challenge, and the Administrative Procedure Act does not provide a right to judicial review of, an adverse decision by the EEOC. Id. at 351 n. 2. As *937 Waldron did not cite and this court's research did not reveal a jurisdictional basis for Waldron's claim against the EEOC and its employees for failing to pursue her charge of discrimination, this court finds that it does not have subject matter jurisdiction over that claim.
Waldron's second claim is that the EEOC actually settled her claim against her former employer for $126,000 but Pierre took the money for herself and refuses to give it to Waldron. Waldron argues that the court has jurisdiction over this claim pursuant to 18 U.S.C. § 654. Section 654, however, is a criminal statute which does not expressly provide for a private cause of action, and the court finds that there is no private cause of action implied in 18 U.S.C. § 654. See Cort v. Ash, 422 U.S. 66, 79, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975); Israel Aircraft Industries Ltd. v. Sanwa Bus. Credit Corp., 16 F.3d 198, 200 (7th Cir.1994).
Arguably Waldron's complaint might state a tort claim against the United States under the Federal Tort Claims Act ("FTCA"). However, Waldron has failed to allege that she has exhausted her administrative remedies with respect to any tort claim as required by 28 U.S.C. § 2675(a). Because Waldron did not first present her tort claim to the appropriate federal agency, the claim must be dismissed for lack of subject matter jurisdiction. See, e.g., McNeil v. United States, 508 U.S. 106, 111-113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993); Sullivan v. United States, 21 F.3d 198, 205 (7th Cir.1994); Cleveland v. Secretary of Health & Human Servs., No. 93 C 0994, 1993 WL 321755, at *4 (N.D.Ill. Aug.19, 1993).
Having dismissed the claims against the EEOC, all that is left of this case is Waldron's claims against Pierre. Essentially, Waldron's claims against Pierre are (1) that Pierre mishandled Waldron's EEOC charge and (2) that Pierre took the $126,000 for her own personal use. However, Waldron has not cited, and the court's research did not reveal, any basis for federal subject matter jurisdiction over these claims. As discussed above, neither Title VII nor 18 U.S.C. § 654 provide such a basis.
Because the court has determined that this case should be dismissed pursuant to Rule 12(b)(1), the court need not reach the merits of the EEOC's 12(b)(6) motion. Similarly, the court denies Waldron's motion for summary judgment as moot.
III. CONCLUSION
For the foregoing reasons, the court finds that it does not have subject matter jurisdiction over this case. Accordingly, the court (1) grants defendant Equal Employment Opportunity Commission's motion to dismiss plaintiff Debra Waldron's complaint and (2) denies plaintiff's motion for summary judgment. Plaintiff's case is dismissed in its entirety. Plaintiff's claim that the EEOC or its employees mishandled her EEOC charge is dismissed with prejudice. Plaintiff's claim that the EEOC settled her claim and defendant Cynthia Pierre took the money is dismissed without prejudice. Plaintiff is free to pursue whatever tort claim she might have against defendant Cynthia Pierre in state court. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598539/ | 995 F.Supp. 534 (1998)
Terri Lee HALDERMAN, et al.,
v.
PENNHURST STATE SCHOOL & HOSPITAL, et al.
No. CIV. A. 74-1345.
United States District Court, E.D. Pennsylvania.
February 9, 1998.
David Ferleger, Philadelphia, PA, for plaintiffs.
Judith A. Gran, Public Interest Law Center of Philadelphia, Philadelphia, PA, for plaintiff-intervenors The ARC-PA (formerly the Pennsylvania Association for Retarded Citizens), et al.
Robert H. Stern, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, for plaintiff-intervenor U.S.
Jerome J. Shestack, Barry M. Klayman, Wolf, Block, Schorr and Solis-Cohen LLP, Philadelphia, PA, for defendant Com. of Pennsylvania.
Stephen C. Miller, Law Dept., Philadelphia, PA, for defendant County of Philadelphia.
MEMORANDUM
BRODERICK, District Judge.
In the Court's Memorandum of April 5, 1985 approving the settlement of this class action and the entry of a consent decree, it was optimistically declared that "The concluding chapter of this litigation is at hand." It was therefore with great regret that on March 28, 1994 the Court was required to find, after a hearing, that defendants Commonwealth of Pennsylvania ("Commonwealth") and the County of Philadelphia ("Philadelphia") were blatantly failing to provide Pennhurst class members from Philadelphia with minimally adequate habilitation and protection from harm in violation of the 1985 Court Decree. Rather than imposing fines, however, the Court ordered the Commonwealth and Philadelphia to use their resources *535 to make certain that each class member received the habilitation and protection mandated by the Decree. The Court also set forth contingent coercive fines of at least $5,000 per day in the event that the Commonwealth and Philadelphia failed to remedy their substantial non-compliance by the deadlines imposed by the Court.
In the spring of 1994, the Court appointed a Special Master to oversee and report to the Court concerning the actions to be taken by the Commonwealth and Philadelphia to remedy their contempt. The Special Master has performed in an outstanding manner by achieving the cooperation of both the Commonwealth and Philadelphia to bring about the changes necessary to provide Philadelphia class members with the habilitation mandated by the Court Decree. The Court has not had to impose any fines or penalties in order to achieve compliance. Indeed, over the past four years the Commonwealth and Philadelphia have made significant strides towards fulfilling their obligations under the 1985 Court Decree and the 1994 Contempt Order. A "Quality Assurance Plan" to assure that class members receive adequate habilitation in the community is now in place. Plans for health care, employment, and investigation of abuse and other incidents are also in place. There is no doubt that Philadelphia class members are better off as a result of these efforts.
After reviewing the Commonwealth's and Philadelphia's record of compliance since 1994 and the Special Master's recent reports to the Court, the Court has determined that the Office of the Special Master should be phased out. At the behest of the Court, the Special Master has submitted a proposed schedule and methodology for terminating his supervision. The Commonwealth and Philadelphia have responded that they are fully committed to working with the Special Master to achieve substantial compliance with the Court's Orders by June 30, 1998. The defendants' recent commitment to their obligations to the Pennhurst class is markedly different from 1994, when the Court found them in contempt. The Court welcomes a speedy conclusion to the participation of the Court and the Special Master in monitoring the Commonwealth's and Philadelphia's efforts to achieve substantial compliance with the 1985 Court Decree.
Although the Court has previously stated that it intended to conclude the Special Master's supervision on December 31, 1997, the Court agrees that a few more months are necessary for the Special Master to conduct a comprehensive individual review of approximately 110 randomly selected class members in order to determine whether the Commonwealth's and Philadelphia's efforts to achieve substantial compliance are actually providing each Philadelphia class member with the habilitation, training, and care mandated by the 1985 Court Decree. By Order dated today, the Court will direct the Special Master to conduct this review and to submit a report of his findings to the Court by June 30, 1998. The Court is hopeful and confident that the Special Master's final review in the upcoming weeks will reveal few, if any, deficiencies. Accordingly, it is the plan of this Court that on about June 30, 1998, the Court will rule that the Commonwealth and Philadelphia are in substantial compliance with the 1985 Court Decree and are purged of all contempt determined in this Court's Order of March 28, 1994.
I. BACKGROUND
This action began in 1974 with the filing of a class action seeking to vindicate the constitutional and federal and state statutory rights of persons with mental retardation at Pennhurst State School and Hospital ("Pennhurst") in Spring City, Pennsylvania, approximately thirty miles northwest of Philadelphia. The members of the Pennhurst class are persons with mental retardation who resided at Pennhurst on or after May 30, 1974. As this Court has stated numerous times over the years, mental retardation is an impairment in learning capacity and adaptive behavior which is wholly distinct from mental illness. Mental retardation is not a violation of the law. Being mentally retarded does not make juveniles or adults dangerous to society. Mental retardation is not a disease. However, with proper habilitation in the community, the level of functioning of every person with mental retardation can be improved. "Habilitation" is a term of art used *536 to refer to the education, training, and care which will help those with mental retardation achieve their maximum development.
The Court has reviewed the history of this litigation in several opinions over the years. See, e.g., 154 F.R.D. 594 (E.D.Pa.1994); 784 F.Supp. 215 (E.D.Pa.1992); 610 F.Supp. 1221 (E.D.Pa.1985); 555 F.Supp. 1144 (E.D.Pa. 1983); 545 F.Supp. 410 (E.D.Pa.1982); 446 F.Supp. 1295 (E.D.Pa.1977). As revealed by these opinions and by the official record, the history of this case can be broken down into five separate periods: (1) the trial, from 1974 to 1978; (2) the appeals and implementation of relief, from 1978 to 1984; (3) the class action settlement and consent decree, from 1984 to 1985; (4) the contempt proceedings, from 1987 to 1994; and (5) compliance with the contempt order, from 1994 to the present. Each period will be reviewed below.
A. The Trial (1974-1978)
On May 30, 1974, the plaintiffs brought a class action on behalf of residents of Pennhurst, a state institution founded in 1908 and dedicated by the Pennsylvania Legislature on June 12, 1913 to the "segregation ... of epileptic, idiotic, imbecile or feeble-minded persons." In 1975, the United States of America intervened as a plaintiff. Also in 1975, the Pennsylvania Association for Retarded Citizens (formerly "PARC" but now "The ARC-PA") and additional class representatives intervened as plaintiffs. Named as defendants were Pennhurst; the superintendent and various employees of Pennhurst; the Pennsylvania Department of Public Welfare; and various officials from the state and counties of Bucks, Chester, Delaware, Montgomery, and Philadelphia responsible for supervising the Commonwealth's and the counties' mental retardation programs. On November 26, 1976, the Court certified the case as a class action, the definition of which was later amended to include all persons with mental retardation who resided at Pennhurst on or after May 30, 1974.
Plaintiffs claimed that their institutionalization at Pennhurst violated their constitutional rights under the First, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, as well as their rights under the following federal and state statutes: the Rehabilitation Act of 1973, § 504 (current version at 29 U.S.C. § 794 (1985)); the Developmentally Disabled Assistance and Bill of Rights Act of 1975, § 111 (current version at 42 U.S.C. § 6009 (1995)); and the Pennsylvania Mental Health and Mental Retardation Act of 1966, § 201, 50 P.S. § 4201 (Purdon's 1969). Plaintiffs sought damages and broad equitable relief, including individualized habilitation and the relocation of all class members from Pennhurst into their communities.
At the time of the lawsuit there were approximately 1,230 persons with mental retardation at Pennhurst, reduced from a high of nearly 4,000 in the early 1960s. The average age of Pennhurst residents was thirty-six, and their average stay at the institution was twenty-one years. Staff numbered approximately 1,500. Despite improvements in the 1960s and early 1970s, Pennhurst was typical of large, isolated state residential institutions for persons with mental retardation. Forty-three percent of Pennhurst residents had no family contact within the past three years. Residents slept in large, overcrowded wards, spent their days in large day rooms, and ate in large group settings. There were few programs designed to increase their skills.
On December 23, 1997, after a thirty-two day trial, this Court issued findings of fact and conclusions of law which found that the defendants had violated the constitutional and statutory rights of Pennhurst class members by failing to provide them with minimally adequate habilitation in the least restrictive environment. Halderman v. Pennhurst State School & Hospital, 446 F.Supp. 1295, 1313-1324 (E.D.Pa.1977) (subsequent history omitted). Testimony had revealed that Pennhurst provided such a dangerous, miserable environment for its residents that many of them actually suffered physical deterioration and intellectual regression during their stay at the institution. Id. at 1308 & 1318. Indeed, none of the defendants disputed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of persons with mental retardation, and that its residents should be educated, trained, and cared for in their communities. The defendants insisted, however, that the Commonwealth *537 be permitted to close Pennhurst and place the residents in the community at its own pace. Id. at 1313.
The Court issued five holdings, in effect giving the Court of Appeals several reasons for upholding its decision. First, the Court held that Pennhurst residents had a constitutional right to be provided with minimally adequate habilitation in the least restrictive environment consistent with their habilitative needs, and that the Commonwealth and five county defendants had violated this right. Id. at 1314-20. Second, the Court held that the defendants had violated class members' right to be free from harm, because they had been physically abused, injured, and inadequately supervised. Id. at 1320-21. Third, the Court held that persons with mental retardation have a constitutional right under the equal protection clause of the Fourteenth Amendment to non-discriminatory habilitation, and that Pennhurst residents were being segregated in an institution that was not only separate, but also not equal. Id. at 1321-22. Fourth, the Court held that the defendants had violated class members' state statutory right to minimally adequate habilitation under the Pennsylvania Mental Health and Mental Retardation Act of 1966, § 201, 50 P.S. § 4201 (Purdon's 1969). Id. at 1322-23. Finally, the Court held that the defendants had violated class members' federal statutory right to non-discriminatory habilitation under Section 504 of the Rehabilitation Act of 1973 (current version at 29 U.S.C. § 794 (1985)). Id. at 1323-24.
In fashioning a remedy, the Court determined that there was no basis for awarding money damages because testimony had shown that, for the most part, the people responsible for running Pennhurst were dedicated employees faced with overwhelming staff shortages and institutional inadequacies. On March 17, 1978, the Court issued an injunctive relief order requiring the defendants to provide, inter alia, each class member with minimally adequate habilitation according to an individualized habilitation program. Id. at 1326-29. The Court also appointed a Special Master to monitor compliance and to oversee the orderly transition of class members from Pennhurst into suitable community living arrangements.
B. The Appeals and Implementation of Relief (1978-1984)
A lengthy appeal process followed, a summary of which is provided in this Court's Memorandum of April 5, 1985, Halderman v. Pennhurst State School & Hospital, 610 F.Supp. 1221, 1225-26 (E.D.Pa.1985). Briefly, the defendants appealed to the United States Court of Appeals for the Third Circuit, which substantially affirmed this Court's relief order on the basis of the Developmentally Disabled Assistance and Bill of Rights Act, § 111 (current version at 42 U.S.C. § 6009 (1995)). Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir.1979) (en banc). On the first appeal to the United States Supreme Court, the Supreme Court reversed and remanded for consideration of the statutory and constitutional issues decided by the trial court. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). On remand, the Court of Appeals again affirmed, this time on the basis of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S. §§ 4101-4704 (Purdon's 1969). Halderman v. Pennhurst State School & Hospital, 673 F.2d 647 (3d Cir. 1982) (en banc). After hearing argument on two separate occasions, the Supreme Court reversed, ruling five to four that the Eleventh Amendment barred a federal court from ordering prospective injunctive relief against state officials on the basis of violations of state law, even where the state law claims had been properly brought into the federal court under pendent jurisdiction. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The Supreme Court remanded the case to the Court of Appeals a second time for consideration of the federal statutory and constitutional issues.
It is with fond memory that this Court recalls Justice Stevens' dissent, with whom Justices Brennan, Marshall and Blackmun joined. Justice Stevens wrote:
This case has illuminated the character of an institution. The record demonstrates that the Pennhurst State School and Hospital has been operated in violation of state law. In 1977, after three years of litigation, *538 the District Court entered detailed findings of fact that abundantly support that conclusion. In 1981, after four more years of litigation, this Court ordered the United States Court of Appeals for the Third Circuit to decide whether the law of Pennsylvania provides an independent and adequate ground which can support the District Court's remedial order. The Court of Appeals, sitting en banc, unanimously concluded that it did. This Court does not disagree with that conclusion. Rather, it reverses the Court of Appeals because it did precisely what this Court ordered it to do; the only error committed by the Court of Appeals was its faithful obedience to this Court's command.
Pennhurst, 465 U.S. at 126, 104 S.Ct. at 922.
Between this Court's initial decision in 1977 and the Supreme Court's second opinion in 1984, this Court issued twenty-three published opinions and hundreds of orders implementing its original injunctive relief order. The Court denied several motions by the defendants to stay its judgment pending the appeals. See, e.g., 526 F.Supp. 409 (E.D.Pa. 1981); 451 F.Supp. 233 (E.D.Pa.1978). On June 30, 1978, the Court appointed the first Special Master in this case, Robert H. Audette, who served until December 8, 1978 when he was replaced by Carla S. Morgan. Ms. Morgan served until the Office of Special Master was closed on December 31, 1982. Halderman v. Pennhurst State School & Hospital, 545 F.Supp. 410 (E.D.Pa.1982). Pursuant to the Third Circuit's mandate, this Court also appointed an impartial Hearing Master, Michael S. Lottman, to make individual placement determinations for class members or their families who contested their removal from Pennhurst. Mr. Lottman served from April 24, 1980 until the Office of the Hearing Master was closed on April 30, 1985.
The Commonwealth opposed the operation and funding of the masters' offices. Initially, the Commonwealth paid the costs of the masters' officers for fiscal years 1978-79, 1979-80, and 1980-81. However, the Commonwealth deliberately refused to provide full funding for fiscal year 1981-82. On August 25, 1981, after appropriate hearings, the Court found the Commonwealth in contempt for failing to make the required monthly payments for the masters' offices. Halderman v. Pennhurst State School & Hospital, 533 F.Supp. 631 (E.D.Pa.1981). The Court reiterated its finding, previously affirmed by the Court of Appeals, that the masters' offices were needed to monitor compliance with the Court's Orders and to oversee the orderly transfer of class members from Pennhurst into community living arrangements. The Court levied fines of $10,000 per day for each day the Commonwealth refused to comply with the Court's Orders funding the masters' offices. Throughout 1981, the Commonwealth chose to remain in contempt but paid the fine of $10,000 each day. Finally, the Court purged the Commonwealth of contempt in view of the fact that the state had paid fines totaling more than $1.2 million, an amount in excess of what was needed to fund the masters' offices. Halderman v. Pennhurst State School & Hospital, 533 F.Supp. 641 (E.D.Pa.1982).
The county defendants also struggled to comply with the Court's Orders. Placement of class members from Pennhurst into community living arrangements was occurring at a very slow pace. Halderman v. Pennhurst State School & Hospital, 555 F.Supp. 1144, 1145 (E.D.Pa.1983). In the first two years after the Court's judgment, the population of Pennhurst declined by less than 200 residents. Id. at 1153. Thus, on March 2, 1981, almost three years after the Court had issued its first injunctive relief order, the Court was compelled to enter an order mandating the community placement of sixty-one Pennhurst residents by June 30, 1981 and another 350 residents by June 30, 1982. The Court arrived at these numbers from the defendants' own proposals. Nevertheless, some of the defendants still failed to comply with this most recent order. On September 11, 1981, after appropriate hearings, the Court found defendants Bucks County, Delaware County and Montgomery County in contempt for failing to make their initial placements by June 30, 1981. Halderman v. Pennhurst State School & Hospital, 526 F.Supp. 414 (E.D.Pa.1981). The Court declined to impose fines, however, since the counties had achieved substantial compliance with the March 2nd Order after a flurry of *539 activity immediately following the contempt hearing. Id. at 422.
C. The Settlement and Court Decree (1984-1985)
In 1984, while the case was pending before the Court of Appeals for the third time after the Supreme Court's remand, the parties entered into settlement negotiations. On July 12, 1984, with assistance from the Honorable Max Rosenn of the Third Circuit Court of Appeals, the parties executed a "Final Settlement Agreement." The Court of Appeals remanded the case to this Court for consideration of the class action settlement pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.
This Court reviewed and approved the settlement and entered a consent decree on April 5, 1985. Halderman v. Pennhurst State School & Hospital, 610 F.Supp. 1221 (E.D.Pa.1985) (the "Court Decree"). At that time, there were approximately 435 residents remaining at Pennhurst, compared to 1,154 residents when the Court issued its first injunctive relief order on March 17, 1978. Id. at 1226. Under the terms of the settlement, the Commonwealth agreed that it would close Pennhurst by July 1, 1986. In addition, the Court Decree requires the Commonwealth and county defendants to provide community living arrangements to class members, together with such services as are necessary to provide them with minimally adequate habilitation. The Court Decree also requires the defendants to develop and provide each class member with a written habilitation plan, formulated in accordance with professional standards; to provide each class member with an individualized habilitation program which is reviewed annually; and to permit each class member and his family or guardian to be heard in connection with his or her program. The Court Decree further mandates that the defendants monitor the services and programs provided to class members and take corrective action when necessary.
Two other provisions of the settlement agreement are worthy of note. First, the agreement provided that upon its approval, the functions of the Hearing Master would be discontinued. Id. at 1228. In place of the Hearing Master, the Commonwealth agreed to retain an independent retardation professional, William A. McKendry, to review class members' individual habilitation plans. Second, the settlement provided that the definition of the plaintiff class would be amended to include only persons who had resided at Pennhurst on or after May 30, 1974, when the lawsuit was commenced. Persons who had been on the waiting list for placement at Pennhurst (and who had not received any habilitative services under previous order of the Court), as well as persons who might have been placed at Pennhurst, were no longer included in the plaintiff class, and their claims were dismissed without prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure.
The Court had no hesitancy in approving the settlement agreement as fair, adequate, and reasonable. Of a total of 6,671 notices provided to class members and their families, only fifty-three objections were submitted prior to the Court's hearing on September 25, 1984. Id. at 1229. There were two broad categories of objections. One group of objections were filed on behalf of persons on the Pennhurst waiting list, who contested the redefinition of the plaintiff class to exclude them. The Court found that, over the course of the litigation, it had become apparent that the waiting list included the names of many persons who were not seeking habilitative care in facilities provided by the defendants. The Court found that the eleven-year-old Pennhurst waiting list had outlived its usefulness. Id. at 1231. The other set of objections, familiar to the Court by that point in time, were from family members of Pennhurst residents who objected to the relocation of their relatives from Pennhurst into the community. These families expressed concern about their loved ones leaving "familiar surroundings." The Court, however, ruled that class members could be transferred with little disruption by employing a system of pre-transfer visits so that class members became familiar with their new surroundings.
In approving the parties "Final Settlement Agreement" and entering the consent decree, the Court optimistically declared that "The *540 concluding chapter of this litigation is at hand." Id. at 1222.
D. The Contempt Proceedings (1987-1994)
Pennhurst State School and Hospital finally closed on October 27, 1987. Even before the institution closed, however, the plaintiffs filed a motion for contempt and enforcement of the Court Decree entered just two years earlier. Additional motions followed, culminating in the Court finding in 1989 and again in 1994 that the Commonwealth and three of the five defendant counties were in contempt. During this period, the Court was also required to rebuke three separate attempts by the Commonwealth to avoid its obligations under the 1985 Court Decree.
On August 28, 1989, the Court issued its first contempt ruling, finding that Delaware County, Montgomery County, and the Commonwealth of Pennsylvania were not in substantial compliance with the Court Decree. Halderman v. Pennhurst State School & Hospital, 1989 WL 100207 (E.D.Pa. Aug.28, 1989). Plaintiff-intervenor The ARC-PA had initiated the contempt proceedings with the filing of two motions on March 24, 1989, subsequently joined by the other plaintiffs. After four days of hearings in the summer of 1989, the Court found Delaware County and the Commonwealth in contempt because sixty-eight of the 191 class members from Delaware County were not being provided with the habilitative services mandated by the Court Decree. These class members were being housed in large facilities, did not have individual habilitation plans, or were receiving inadequate habilitation and case management services. The Court also found Montgomery County and the Commonwealth in contempt because six of 200 class members from Montgomery County were not being provided with the required habilitative services.
Recognizing that there had been more than 1,200 class members at Pennhurst when the action was commenced, the Court declined to impose sanctions against any of the defendants. Empirical studies over the years showed that the majority of class members had achieved substantial gains in their life skills as a result of the defendants' actions under the Court's Orders. Thus, the Court determined that the Commonwealth and the two county defendants should be given additional time to achieve substantial compliance with the 1985 Court Decree. The Court ordered the Commonwealth and the counties to remedy their violations by March 1, 1990, and directed them to submit monthly reports on their progress.
The Third Circuit affirmed. Halderman v. Pennhurst State School & Hospital, 901 F.2d 311 (3d Cir.1990). Before the Third Circuit, the Commonwealth argued that this Court's jurisdiction had expired under the terms of the Court Decree before the Court issued its contempt findings. The Commonwealth further argued that the requirements imposed by the Court Decree were only moral rather than legal obligations. Finally, the Commonwealth argued that it was not liable for the counties' non-compliance because the Decree only required it to monitor compliance, and also because state law placed responsibility for community placements on the counties. The Court of Appeals rejected each argument. The Third Circuit agreed with this Court that the jurisdictional terms of the Decree specified only the cessation of "active supervision," after which this Court would "simply resort to the usual continuing jurisdiction that courts routinely exercise over their injunctions." Id. at 320. Furthermore, the Third Circuit determined that the settlement clearly referred to the obligations it imposed as "orders of the Court," not ethical commands. The Court of Appeals also agreed with this Court that the Commonwealth was jointly responsible with the counties for providing community services under the Decree, and that the Commonwealth's monitoring responsibilities included not only keeping track of the counties' compliance but also taking corrective action when necessary. Id. at 322-23.
Soon after the 1989 contempt proceedings, the Commonwealth made another attempt to avoid its obligations under the 1985 Court Decree. On August 19, 1991, the Commonwealth filed a motion to vacate the Court Decree, asserting that developments in constitutional law and federal statutory rights had undermined the legal predicates for the Decree. This Court denied the motion. *541 Halderman v. Pennhurst State School & Hospital, 784 F.Supp. 215 (E.D.Pa.1992). Guided by the then-recent Supreme Court decision in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), the Court determined that the Commonwealth, as the party seeking modification of an institutional reform consent decree, had failed to carry its burden of establishing a significant change in factual conditions or law which warranted revision of the Decree. Halderman, 784 F.Supp. at 224. The Court also found that there was no basis in law or equity for modifying the Decree, since several Pennhurst class members were still not receiving the services mandated by the Decree. The Third Circuit affirmed. Halderman v. Pennhurst State School & Hospital, No. 92-1186 [977 F.2d 568 (Table)] (3d Cir.1992).
Having failed in 1989 and again in 1992 to avoid its obligations under the Decree, the Commonwealth embarked on yet another attempt with the filing of a motion on May 5, 1993. This time, the Commonwealth contended that the Eleventh Amendment required this Court to dismiss all plaintiffs except the United States from the action. This would have removed those parties directly affected by the Commonwealth's actions. The Court denied the motion, noting with dismay that it was just another attempt to delay full compliance with the settlement which the Commonwealth had knowingly and willingly entered eight years earlier. Halderman v. Pennhurst State School & Hospital, 834 F.Supp. 757, 759 (E.D.Pa.1993). The Court found that the Commonwealth had "unequivocally expressed" its consent both to suit and to be bound by the Court Decree. Id. at 763. The Court also rejected the Commonwealth's contention that class members were no longer entitled to care just because Pennhurst had finally been closed. Id. at 766. No appeal was taken.
Finally, on March 28, 1994, the Court issued its most recent contempt order, finding that the Commonwealth and Philadelphia had deliberately violated their obligations under the 1985 Court Decree. Halderman v. Pennhurst State School & Hospital, 154 F.R.D. 594 (E.D.Pa.1994). Plaintiff-intervenors The ARC-PA had initiated the contempt proceedings in November, 1987 against Philadelphia County. Later, the other plaintiffs joined in the motion, and the Commonwealth was added as a defendant upon Philadelphia's request. The Court granted several continuances to allow the parties to work out a settlement. Shortly after the filing of the motion, Philadelphia agreed to the appointment of an expert team, but negotiations failed. Then, in May, 1990, the parties agreed to the appointment of the third Special Master in this case, Dr. Sue Gant, for the purpose of reviewing Philadelphia's mental retardation programs. Dr. Gant filed a report with the Court in February, 1991 detailing numerous instances of noncompliance, and the Court set a hearing date on the contempt motion for June 13, 1991. Id. at 598.
Prior to the hearing, the parties again announced that they wanted time to settle the contempt motion. The parties proposed developing a comprehensive plan that would restructure Philadelphia's mental retardation programs to provide the habilitative services mandated for Pennhurst class members to all Philadelphia residents with mental retardation. Id. at 599. Although this Court's jurisdiction is limited to Pennhurst class members, the Court had no objection to the parties agreeing to extend the services provided to class members to all Philadelphia residents with mental retardation. In June, 1993, after two years of work, the parties advised the Court that they had developed such a plan. However, later that summer their agreement broke down, and the Court set another hearing date. The Court also directed the Special Master to update her February, 1991 report and to testify at the contempt hearing.
The Special Master's updated report concluded that the Commonwealth and Philadelphia were still not in compliance with the 1985 Court Decree. Id. The Court held hearings over a period of approximately nine days between December 1 and December 23, 1993. On the basis of the evidence presented at the hearings, as well as the Special Master's reports, the Court found that the Commonwealth and Philadelphia were not in substantial compliance with the Court Decree. The Court's findings of fact and conclusions *542 of law are detailed in the Memorandum of March 28, 1994. Halderman v. Pennhurst State School & Hospital, 154 F.R.D. 594, 599-610 (E.D.Pa.1994).
In summary, the Court found that the Commonwealth and Philadelphia had violated almost every substantive requirement of the 1985 Court Decree. At least thirty-three and as many as fifty-five Pennhurst class members from Philadelphia still resided in large institutional settings. As many as 25 percent of Philadelphia class members had no individual habilitation plan, and where a plan existed, it was not being properly implemented. The Court also found that the Commonwealth and Philadelphia had failed to adequately monitor class members in violation of the Court Decree. Approximately one-third of Philadelphia class members lacked case managers, and many of those who had been assigned a case manager did not receive regularly scheduled visits. Moreover, the defendants lacked an accurate, up-to-date listing of all class members from Philadelphia. Finally, the Court found that the defendants had failed to provide Philadelphia class members with adequate medical and dental care. Many class members were still being excessively treated with psychotropic or anti-seizure medications, and few class members had a primary care physician.
In fashioning a remedial order, the Court once again declined to impose fines. The Court issued a contempt order requiring the Commonwealth and Philadelphia to use their resources to ensure that each class member received the habilitation and protection from harm mandated by the 1985 Court Decree. The Court's order set forth fourteen affirmative requirements which the defendants had to meet by stated deadlines, or be subject to fines of at least $5,000 for each day they remained in non-compliance.
Shortly after the Court issued its contempt order, the Court appointed J.A. (Tony) Records of Takoma Park, Maryland to serve as Special Master to oversee compliance and implementation of the affirmative requirements in the Contempt Order. Halderman v. Pennhurst State School & Hospital, 1994 WL 185024 (E.D.Pa. May 12, 1994). The parties jointly proposed that Mr. Records replace the former Special Master, Dr. Sue Gant, who had testified against the Commonwealth and Philadelphia during the contempt proceedings. Appointed as the fourth Special Master in this action, Mr. Records has served from May 12, 1994 until the present. He and his staff have performed exceptionally well.
II. BENEFITS TO PENNHURST CLASS MEMBERS AND ALL PERSONS WITH MENTAL RETARDATION
The Pennhurst case has brought numerous benefits to the plaintiffs in this class action as well as to other persons with mental retardation throughout Pennsylvania and the country. The Pennhurst litigation is widely credited with creating a general awareness that persons with mental retardation do have rights: the right to be free from abuse and mistreatment, the right not to be warehoused in institutions, and the right to receive habilitation and training. In short, the Pennhurst case stands for the principle that persons with mental retardation have the right to minimally adequate habilitation in the least restrictive environment.
Pennhurst has served as a model for deinstitutionalization litigation across the country. Between 1971 and 1996, there were seventy class action civil rights lawsuits filed on behalf of persons with mental retardation or other developmental disabilities. See Mary F. Hayden, "Class-Action, Civil Rights Litigation for Institutionalized Persons with Mental Retardation and Other Developmental Disabilities: A Review," 21 Mental & Physical Disability L. Rept. 411 (May-June 1997). Cases like Pennhurst have involved the right to live in the least restrictive environment; the right to adequate food, shelter, clothing, and medical care; and the right to adequate training and habilitation. Commenced in 1974, Pennhurst was the first such action filed in Pennsylvania and among the first eight cases filed nationwide. Id. at 411 & 421-23.
The deinstitutionalization movement has resulted in the vast relocation of persons with mental retardation out of large, state-operated institutions like Pennhurst into smaller, community facilities. In Pennsylvania, fourteen of the twenty-three large, state-operated institutions for persons with mental *543 retardation have closed since 1976, and two more are scheduled to close in the next two years. See R.W. Prouty & K.C. Lakin, Residential Services for Persons with Developmental Disabilities: Status and Trends Through 1996 30-31 (Table 1.12) (Minneapolis: University of Minnesota Research and Training Center on Community Living, May 1997). Over the past twenty years, the number of Pennsylvania residents receiving services for mental retardation has remained at approximately 16,000, but the number residing in institutions has dropped from 9,870 in 1977 to 3,164 in 1996. Id. at 170. The percentage of children in these institutions has also declined, from 23 percent in 1977 to less than 1 percent in 1996. Id. Over the same period, there has been a remarkable shift to small, residential settings. Today, 9,827 Pennsylvania residents with mental retardation live in homes of one to six persons, compared with only 1,078 in 1977. Id. Pennsylvania ranks fourth in the country in this regard, after California, Michigan, and New York. Id. at 55.
Nationwide, 131 of the 347 large, state-operated institutions for persons with mental retardation have closed as of 1996, and another twenty-one are scheduled to close by the year 2000. Id. at 20 (Table 1.11). The population of persons in these institutions has also declined, from an all-time high of 194,650 persons in 1967, to 151,532 persons in 1977, to 59,936 persons in 1996, or 26 percent of the 1967 total. Id. at 13 & 14 (Table 1.7). Correspondingly, the number of persons with mental retardation living in small, residential settings of one to six persons has jumped to 172,294 persons in 1996, compared with only 20,400 in 1977. Id. at 70 (Figure 2.5).
In the Pennhurst action, this Court has received empirical evidence that class members are better off in almost every way since leaving Pennhurst and receiving individualized habilitation in the community. In 1985, when the Court approved the parties' settlement agreement, the Court summarized the results of a five-year longitudinal study commissioned by the U.S. Department of Health and Human Services which specifically tracked the progress of Pennhurst residents under this Court's Orders. The study measured Pennhurst class members' relative growth and development in the institution vs. the community, and assessed the impact of deinstitutionalization on their families.
As summarized in the Court's Memorandum of April 5, 1985, the study's findings were truly remarkable:
1. Former Pennhurst residents showed significantly faster developmental growth in community living arrangements ("CLAs") than they did at Pennhurst.
2. Former Pennhurst residents received more services and program time in CLAs than they did at Pennhurst (an average of ten hours/day compared to six at Pennhurst).
3. Prior to transfers from Pennhurst into CLAs, more than 60% of families opposed relocation, with 64% strongly disagreeing with the decision to transfer. Six months after relocation, more than 80% of the same families agreed with the decision (64% strongly agreed), and only 4% still strongly disagreed.
4. Families perceived their relatives to be much happier in CLAs than at Pennhurst.
5. The expenditure of public dollars per resident was less in the CLAs than in Pennhurst.
Halderman, 610 F.Supp. at 1233 (citing J.W. Conroy & V.J. Bradley, The Pennhurst Longitudinal Study; A Report of Five Years of Research and Analysis (Philadelphia: Temple University Developmental Disabilities Center 1985)).
The most remarkable accomplishment of Pennhurst is the fact that so many class members are now employed. A recent telephone survey reveals that more than 50 percent of all Pennhurst class members participate daily in sheltered workshops or other activities for which they receive some compensation for their services. Additionally, there are almost one hundred class members who are employed in jobs where they earn at least the minimum wage. Other class members are regular volunteers in community programs for the elderly and other groups. Just a few days ago, an independent expert told the Court that he has been friendly with a Pennhurst class member whom he considers "the happiest person he knows." He said that this class member was committed to *544 Pennhurst when he was 7 years of age. He is now 66 years old and works every day in the kitchen of a college near Philadelphia.
Other class members have shown great improvement since leaving Pennhurst. For example, in 1977, after thirty-two days of testimony on the abominable conditions at Pennhurst, this Court wrote: "Terri Lee Halderman, the original plaintiff in this action, was admitted to Pennhurst in 1966 when she was twelve years of age. During her eleven years at Pennhurst, as a result of attacks and accidents, she has lost several teeth and suffered a fractured jaw, fractured fingers, a fractured toe and numerous lacerations, cuts, scratches and bites." Halderman, 446 F.Supp. at 1309. Today, the Court can happily report that Ms. Halderman lives in a one-level, ranch-style home with two roommates in Delaware County. Her home has a deck and a backyard where she enjoys the outdoors. She is in good health. She is provided with one-to-one staffing at all times, which enables her to participate in activities in the community during the day.
The improvement shown by another plaintiff is just as remarkable. In 1977, this Court wrote: "Plaintiff Linda Taub, who is blind in addition to being retarded, was admitted to Pennhurst in 1966 at the age of fifteen. According to her father, during her nine year residency at Pennhurst Linda received only custodial care and she experienced regression rather than growth. Time on the ward was spent sitting and rocking, with few activities. During one of their visits in 1968, Linda's parents found Linda, a person capable of walking, strapped to a wheelchair by a straightjacket. A staff member explained that by strapping her into the chair, they would know exactly where Linda was. While at the institution, Linda was badly bruised and scarred." Id. at 1310. Today, Ms. Taub lives in a home with five other women in Philadelphia and attends a day program. According to her most recent records, Ms. Taub has developed several independent living skills since moving to her present home. Although she is blind, she is able to move around in her home using trailing techniques. She has learned to dress herself. Ms. Taub has her own bedroom which she helps to maintain. At her day program, she completes some work for which she is paid, and a communication board has been developed to assist her with expressing her choices. In addition, Ms. Taub participates in community trips with staff members from her day program. She likes to attend concerts, swim and have manicures. Moreover, her individual habilitation plan includes goals to teach her to develop additional practical skills, such as making herself a snack.
The parties deserve to be proud of these and the other accomplishments they have achieved on behalf of the Pennhurst class. It must be recognized, however, that Pennsylvania residents with mental retardation who are not members of the Pennhurst class have not all received the same level of services. This is unfortunate. Throughout the entire history of this case, the Court has always encouraged the defendants to provide every person in Pennsylvania who has mental retardation with the minimally adequate habilitative services provided to the Pennhurst class. As this Court noted when it approved the Court Decree in 1985, the Court's orders in no way limit the defendants from providing habilitative and residential services to retarded persons throughout Pennsylvania who are not members of the Pennhurst class.
III. COMPLIANCE WITH THE 1994 CONTEMPT ORDER (1994-present)
The Court has commended the Commonwealth and Philadelphia for their recent efforts in providing the services mandated by the 1985 Court Decree and 1994 Contempt Order. See 1997 WL 700490 (E.D.Pa. Nov.7, 1997); 1997 WL 538924 (Aug. 27, 1997); 1995 WL 605479 (E.D.Pa. Oct.13, 1995); 1995 WL 232509 (E.D.Pa. April 18, 1995). By Order dated March 12, 1997, the Court found that the Commonwealth and Philadelphia had consistently complied with several of the paragraphs of the Contempt Order, and purged them of contempt with respect to those requirements. The most recent reports from the Special Master and the Philadelphia defendants demonstrate how far the Commonwealth and Philadelphia have come since 1994.
There are currently 562 class members from Philadelphia, of whom nineteen are considered "inactive" because they refuse *545 services or cannot be located. The City's Department of Public Health keeps an alphabetical listing of each class member, along with his or her address and telephone number, residential provider, case manager, and most recent annual review date. In the City's most recent quarterly report (for the period ending December 31, 1997), it noted that seven Philadelphia class members had died since the last reporting period, and listed their names and date of death. Philadelphia's current efforts to keep track of class members stands in marked contrast to 1994, when the Court found that the defendants could not identify all of the members of the class. Halderman, 154 F.R.D. at 602.
The Court is also pleased to report that all but two active class members from Philadelphia now reside in small, community living arrangements ("CLAs"). Of the two individuals who remain in larger facilities, each has medical and/or psychological problems making it inappropriate to move them into CLAs at this time. In contrast, in 1994 the Court found that at least thirty-three and as many as fifty-five Philadelphia class members were residing in large institutional settings. Id. at 600.
Philadelphia class members are also now receiving the required levels of case management and monitoring services. As detailed in the Special Master's letter to the Court on February 21, 1997 and Philadelphia's most recent quarterly report, each class member has an assigned case manager. Moreover, there is currently at least one case manager for each 25 class members, and case managers receive both initial and continuing training. Finally, both the Commonwealth and Philadelphia have consistently monitored the day and residential programs used by class members. In contrast, approximately 32 percent of Philadelphia class members did not have case managers in 1994, and those who did were not visited on a regular basis. Id. at 602. Furthermore, the Court found in 1994 that the defendants' monitoring reports were woefully incomplete and inadequate, and that the defendants had failed to take corrective action when necessary. Id. at 602-04.
Each class member's medical treatment including the prescription of psychotropic drugs is now carefully recorded and monitored by his or her treating physician and by an independent physician employed by Philadelphia. The Special Master has advised the Court in his February 21, 1997 report that class members' medical records are consistently legible, complete, and present at their residential facility. Once again, the defendants' efforts stand in stark contrast to 1994, when the Court found that class members' medical records were either incoherent or non-existent, and that class members were being prescribed excessive psychotropic medication in violation of accepted medical standards. Id. at 604-05.
The Commonwealth and Philadelphia have also made significant strides in providing class members with minimally adequate habilitation in accordance with their individual habilitation plan ("IHP"). Philadelphia reports that all active class members in Philadelphia have current IHPs which are updated annually and completed within thirty days after the annual review. When two IHPs were mailed late during the last quarter, the City's Department of Public Health provided a reasonable explanation and identified the class members and length of delay. The Special Master will soon review whether class members are actually receiving the habilitative services specified in their IHPs.
In addition to improving their record of compliance, the Commonwealth and Philadelphia have also developed several comprehensive plans for the benefit of Philadelphia class members, such as an investigation plan, a medical and dental plan, a quality assurance plan, and an employment plan. Each one of these plans has been developed with input from the plaintiffs and the Special Master, and promises to assure that Philadelphia class members will receive continued habilitation after the Special Master completes his supervision.
The parties have developed an investigation plan, entitled the "Plan for the Investigation and Resolution of Incidents," to ensure that unusual incidents affecting the safety and well-being of class members are thoroughly investigated and promptly corrected when necessary. Initially approved by the Special Master on December 1, 1994, the investigation plan was revised on July 11, *546 1997 after an independent evaluation of how the plan was working. Under the terms of the plan, Philadelphia has established a new group called the "Pennhurst Investigation Unit," which includes a director, a senior investigator, and trained staff investigators who investigate allegations of abuse, neglect and/or theft of class members' property. These investigations are generally completed within sixty days from the time the incident is reported. Philadelphia has also issued revised policy guidelines to residential service providers governing the reporting and resolution of unusual incidents. The defendants should be commended for their development and consistent implementation of the investigation plan. These accomplishments represent a significant change from 1994, when incidents were usually self-investigated and the Court remarked that the investigative process was "akin to putting the fox in charge of the hen house." Halderman, 154 F.R.D. at 603.
The parties have also worked together to develop a health care plan for Philadelphia class members, entitled the "Comprehensive Health Care Plan for Pennhurst Class Members." This plan was approved by the Special Master on May 15, 1996 and took effect on May 31, 1996. The plan focuses on the smooth transition for class members from previous health care systems to managed care (HMOs, etc.). In addition, the health care plan includes several activities designed to ensure that managed care providers adequately respond to class members' needs in areas such as preventive and dental care, behavioral health, and elderly services. The health care plan also requires each class member's individual planning team to review and make recommendations regarding his or her health care at the annual review meeting.
Although the health care plan has not been fully implemented, it has thus far provided substantial benefits to Philadelphia class members. Each active class member in Philadelphia now has a primary care physician and a dentist. Moreover, as the Special Master has indicated in recent reports, Philadelphia's Health Care Coordinating Agency has assisted class members with enrolling in managed care systems and in training staff from managed care companies on the specific needs of individuals with mental retardation. Class members, their families, case managers, and provider staff have all begun to receive training on health care issues. In an effort to ensure that class members are not being prescribed excessive psychotropic medication, the parties have developed new programs to enhance communication between direct contact staff, behavioral consultants, and psychiatrists. In addition, the Commonwealth and Philadelphia have established a fund to ensure that health care services which are not covered by insurance are made available to class members as needed. In the upcoming months, the Special Master will review whether Philadelphia class members are receiving the services provided for in the health care plan in a timely and effective manner.
In addition to an investigation and health care plan, the parties have also jointly developed a "Quality Assurance Plan" to establish a mechanism for sustained compliance with the Court's Orders once the Special Master concludes his supervision. This plan was approved by the Court on October 13, 1995. Halderman v. Pennhurst State School & Hospital, 1995 WL 605479 (E.D.Pa. Oct.13, 1995). The stated purposes of the plan are: to set out a vision of quality; to embrace the individual planning process as the foundation for all planning and monitoring efforts; to bolster the role and performance of case management through improvements in training and management of information; to define quality performance in a set of standards; to improve technical assistance to providers; to support coordinators and others through the development of a training institute; to revamp monitoring activities to connect and convey vital information with an emphasis on providing incentives to improve quality; to establish a dispute mediation process; and to evaluate implementation of the Quality Assurance Plan by an independent, outside source.
Although the Quality Assurance Plan is still being implemented, the defendants should be extremely proud of their accomplishments thus far. For example, the individual planning process has been modified to be more person-centered, and Philadelphia has revised its monthly case management *547 process so that relevant questions are asked and answered. Philadelphia has also added several positions to the Pennhurst Management Team, the entity responsible for ensuring the provision of supports and services to class members, such as a director of quality assurance, a director of training and technical assistance, and an assistant to the director. In addition, case managers and their supervisors now receive several days of competency-based training relevant to their positions. Philadelphia has also required each service provider to develop and submit a quality improvement plan. Finally, the Commonwealth has conducted annual compliance reviews under the Quality Assurance Plan and has requested Philadelphia to take corrective action when necessary.
The parties have also developed an employment plan for Philadelphia class members, entitled the "Plan for Increasing Access to Community Integrated Employment for Pennhurst Plaintiff Class Members." Although the parties have struggled with the timely development and implementation of this plan, the Special Master has helped the parties create a plan for person-centered services, training, and supports which gives Pennhurst class members from Philadelphia a real opportunity for employment and training. The employment plan is still in the very initial stages of implementation. There are currently thirty-five Philadelphia class members employed in positions paying at least the minimum wage, the majority of whom became employed within the past few years. Although this number is smaller than the Court would like, it confirms this Court's findings over the past twenty years that many persons with mental retardation can become productive, self-contributing members of society if given proper habilitation and training. Philadelphia class members now work for restaurants, car washes, retail grocery and merchandising stores, drug stores, and gas stations. They serve as clerical aides, baker's assistants, parking lot attendants, stock clerks, custodians, and maintenance workers. They work between three and forty hours each week, and earn from $5 to $10 per hour. This is truly a remarkable achievement compared with twenty-four years ago, when class members were isolated, abused, received no job training, and faced institutionalization for life at Pennhurst.
IV. DISENGAGEMENT: ENDING THE SPECIAL MASTER'S SUPERVISION
More than two years ago the Court expressed its intention to end its supervision of the Commonwealth and Philadelphia, the two remaining active defendants in this action. In approving the Philadelphia Quality Assurance Plan, the Court hoped that proper implementation of the plan would replace the need for continuing supervision by the Court and the Special Master. Halderman v. Pennhurst State School & Hospital, 1995 WL 605479 (E.D.Pa. Oct.13, 1995). The Court agreed at that time, however, that it was premature to set a schedule for phasing out the contempt proceedings.
Last spring, the Court determined that the time had come to conclude its own and the Special Master's monitoring of the Commonwealth and Philadelphia. Upon receiving the Special Master's proposed budget for 1997-1998, the Court directed the attorneys for the plaintiffs, the Commonwealth, and Philadelphia to appear at a conference in chambers on May 7, 1997. At the conference, the Court challenged the parties to focus their efforts on achieving substantial compliance with this Court's Orders so that supervision of the Commonwealth and Philadelphia could be completed. The Commonwealth suggested that the litigation could be concluded in six months if the Special Master worked with the parties and reviewed the Commonwealth's and Philadelphia's current efforts on behalf of Philadelphia class members. Welcoming this suggestion, the Court extended the Special Master's budget for six months, until December 31, 1997.
On August 5, 1997, the Special Master submitted his twenty-fourth report to the Court on the Commonwealth's and Philadelphia's record of compliance with the 1994 Contempt Order and 1985 Court Decree. In accepting the Special Master's report, the Court noted that his findings presented convincing evidence that substantial compliance was being achieved, and that the Court's goal of terminating the Special Master's supervision *548 by December 31, 1997 was attainable. Halderman v. Pennhurst State School & Hospital, 1997 WL 538924 (E.D.Pa. Aug.27, 1997).
During the fall of 1997, the Special Master worked with the parties to develop a proposed schedule and methodology for reviewing whether the Commonwealth and Philadelphia were in substantial compliance with the 1985 Court Decree. On November 4, 1997, the Special Master submitted his proposal to the Court, and the Court directed the parties to file any comments they might have concerning the Special Master's proposed review. Halderman v. Pennhurst State School & Hospital, 1997 WL 700490 (E.D.Pa. Nov.7, 1997). Comments were received from the Commonwealth, Philadelphia, and each of the plaintiffs except the United States.
As heretofore discussed, it appears that the Commonwealth and Philadelphia have made great progress in complying with the 1985 Court Decree and 1994 Contempt Order. However, after reviewing the Special Master's proposal and the parties' comments, the Court has determined that a few more months are necessary for the Special Master to conduct a comprehensive review of individual Philadelphia class members for the purpose of determining whether they are actually receiving the services mandated by the Court Decree. Accordingly, by Order dated today, the Court will direct the Special Master to conduct this review and to submit a report of his findings to the Court by June 30, 1998.
In conducting his review, the Special Master will select a random sample of 20 percent of the Philadelphia class, approximately 110 class members. The Special Master will visit these class members at their homes and day programs and review their case files. He will interview these class members, their families, case managers, advocates, and direct care staff. The Special Master will also consult with each of the parties to discuss any deficiencies he may find and methods to correct them.
In order to devote the necessary time and attention to his review of approximately 110 Philadelphia class members, the Special Master may cease his ongoing, routine monitoring, including the submission of quarterly reports. The Court will direct the Special Master, however, to address any urgent issues regarding individual class members and to continue acting in his capacities under the various Court-approved plans. The Court will also extend the Special Master's budget, which expired on December 31, 1997, until June 30, 1998 at the same monthly level as last year. The Court anticipates that this will be the final budget approved for the Office of the Special Master.
CONCLUSION
The past twenty years has seen a vast relocation of persons with mental retardation out of large, state-operated institutions like Pennhurst into small, community living environments. The Pennhurst case helped usher in this deinstitutionalization movement, and has brought a general awareness that persons with mental retardation have the right to minimally adequate habilitation in the least restrictive environment. Study after study has demonstrated that Pennhurst class members have been better off in almost every way since this Court ordered the defendants to provide them with care, training, and habilitation in smaller residential settings. Today, many class members are employed in paying jobs helping contribute to society. Others are acquiring new skills and learning to reach their maximum potential development.
Since 1994, the Commonwealth and Philadelphia the two remaining active defendants in this action have made significant improvements in providing Pennhurst class members from Philadelphia with the services mandated by the 1985 Court Decree and the 1994 Contempt Order. The Court has never imposed any fines or sanctions. After reviewing the Commonwealth's and Philadelphia's record of compliance and the Special Master's recent reports, the Court has determined that it is time to end the Court's and the Special Master's active supervision in this case. Accordingly, by Order dated today, the Court will direct the Special Master to conduct a comprehensive individual review of approximately 110 class members from Philadelphia for the purpose of determining whether they are actually receiving the services *549 required by the 1985 Court Decree. The Special Master will issue a report of his findings to the Court by June 30, 1998, and his budget will be extended through that date.
The Court sincerely hopes that the Special Master's report will not reveal any areas of substantial non-compliance. It is the Court's plan that the Special Master's office will be closed on June 30, 1998, and that the Court will then rule that the Commonwealth and Philadelphia are purged of all contempt found by this Court on March 28, 1994.
An appropriate Order follows.
ORDER
AND NOW, this 9th day of February, 1998; the Court desiring to conclude the participation of the Court and the Special Master in monitoring the efforts of the Commonwealth of Pennsylvania ("Commonwealth") and County of Philadelphia ("Philadelphia") to achieve substantial compliance with this Court's Orders of April 5, 1985 (the "1985 Court Decree") and March 28, 1994 (the "1994 Contempt Order"); and for the reasons set forth in the Court's Memorandum of this date;
IT IS ORDERED:
1. The Special Master shall conduct a comprehensive individual review of approximately 110 randomly selected Philadelphia class members (20 percent) in order to determine whether the Commonwealth's and Philadelphia's efforts to achieve substantial compliance are actually providing each Philadelphia class member with the habilitation, training, and care mandated by the 1985 Court Decree. The Special Master shall file a report of his findings and recommendations with the Court by June 30, 1998.
2. In order to devote the necessary time and attention to his review of substantial compliance, the Special Master may cease his ongoing, routine monitoring, including the submission of quarterly reports required by this Court's May 12, 1994 Order, as amended January 3, 1996. The Special Master, however, shall continue, as necessary, to address urgent issues regarding individual class members and shall continue to act in the capacities which have been set forth for him in the various Court-approved plans.
3. The Special Master's budget, which this Court previously approved by Order dated May 8, 1997 and which expired on December 31, 1997, is extended through June 30, 1998 in the same monthly amount. On or before March 1, 1998, the Commonwealth and Philadelphia shall each submit a sum to the Clerk of the Court in the amount of $27,915.00 to cover the period of January 1, 1998 through March 31, 1998. Beginning on April 1, 1998, and on or before the first day of each succeeding month thereafter, up to an including, June 1, 1998, the Commonwealth and Philadelphia shall each deposit with the Clerk of the Court a sum in the amount of $9,305.00. In the event the Court determines that the Special Master's duties are completed as of June 30, 1998, any surplus funds on deposit with the Clerk's office will be refunded pro rata to the Commonwealth and Philadelphia; however, if the Court determines at any time that the Special Master will require supplemental funds, the Court may order the Commonwealth and Philadelphia to make additional deposits. To the extent not superseded by this Order, the Court's Order of May 12, 1994 SHALL REMAIN IN FULL FORCE AND EFFECT. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598611/ | 287 So.2d 146 (1973)
Oscar FRANCIS and Mattie Francis, His Wife, Appellants,
v.
GENERAL MOTORS CORPORATION, a Delaware Corporation, Appellee.
No. 73-213.
District Court of Appeal of Florida, Third District.
December 18, 1973.
Rehearing Denied January 17, 1974.
Michael A. Lipsky, Miami, for appellants.
Bradford, Williams, McKay, Kimbrell, Hamann & Jennings and Joseph W. Womack, Sam Daniels, Miami, for appellee.
Before BARKDULL, C.J., and PEARSON and CARROLL, JJ.
PER CURIAM.
This appeal is by the plaintiffs below from an adverse summary judgment. Plaintiff Oscar Francis alleged injuries proximately caused by his use over an extended period of an automobile undercoating product supplied by the defendant; that the product was inherently dangerous; and that the danger to users was not labeled or shown on the products containers. His wife Mattie Francis joined, claiming loss of consortium. Compensatory and punitive damages were sought.
The defendant denied that the product was inherently dangerous to users; averred it had no duty to give a warning with respect thereto, or to instruct the plaintiff on the use thereof; and pleaded contributory negligence.
We are impelled to conclude it was error to enter summary judgment for the defendant. The pleadings and evidence before the court showed the existence of genuine issues of material fact, relating to negligence, contributory negligence and proximate cause, which properly could not be resolved on motion for summary judgment. See Tampa Drug Co. v. Wait, Fla. 1958, 103 So.2d 603; Williams v. Caterpillar Tractor Co., Fla.App. 1963, 149 So.2d 898; Edwards v. California Chemical Co., Fla.App. 1971, 245 So.2d 259.
We hold to be without merit the contention of the appellee that where the plaintiffs as well as the defendant moved for summary judgment the court thereby became entitled to decide the case by summary judgment notwithstanding the presence of triable issues as to material facts *147 which were in dispute. Where genuine issues of material fact are shown to exist, the fact that both plaintiff and defendant filed motions for summary judgment claiming the non-existence of such issues, will not serve to dissipate them, nor will it entitle the court to decide such triable issues without trial. Shaffran v. Holness, Fla. 1957, 93 So.2d 94, 98; West Shore Restaurant Corp. v. Turk, Fla. 1958, 101 So.2d 123, 126. See 6 Moore's Federal Practice, 2 Ed., § 56.13, wherein it is stated: "The well-settled rule is that cross-motions for summary judgment do not warrant the court in granting summary judgment unless one of the moving parties is entitled to judgment as a matter of law upon facts that are not genuinely disputed."
Accordingly, the summary judgment is reversed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598627/ | 526 N.W.2d 413 (1995)
DUNHAM'S FOOD & DRINK, INC., et al., Appellants,
v.
CITY OF WEST ST. PAUL, Respondent.
No. C9-94-1559.
Court of Appeals of Minnesota.
January 31, 1995.
Thomas F. Hutchinson, David S. Wething, Eastlund, Solstad & Hutchinson, Minneapolis, for appellants.
Rollin H. Crawford, Stephen H. Fochler, LeVander, Gillen & Miller, South St. Paul, for respondent.
Carla J. Heyl, League of Minnesota Cities, Shoreview, for amicus League of Minnesota Cities.
Considered and decided by RANDALL, P.J., and SHORT and MULALLY[*], JJ.
OPINION
RANDALL, Judge.
Appellants Dunham's Food & Drink, Inc., et al. appeal from the district court's dismissal of their claim against the City of West St. Paul (city). Appellants contend that the fee a city may charge for a liquor license is narrowly restricted by statute to the dollar costs of issuing and directly enforcing the license. Minn.Stat. § 340A.408, subd. 2(a) (1992). They further argue that the district court erred in determining that the city's *414 costs of issuing and enforcing liquor licenses exceeded revenue from license fees. We affirm.
FACTS
Appellants are seven West St. Paul businesses engaged in the retail "on-sale" of intoxicating liquor. The city issues licenses to these establishments. Each business pays a license fee set by the city. From 1980 through 1992, the city charged an annual fee of $2,500 for each license. During that lengthy period appellants paid the $2,500 without court challenge.
In 1992, the West St. Paul City Council passed ordinance 92-09, which set a new fee schedule for the next six years. The annual fee would increase from $2,500 to $2,750 in 1993 and then by $250 per year until 1998, when the annual fee would reach $4,000. Only the 1993 fee increase of $250 is at issue in this lawsuit.
The city uses a variety of methods to enforce liquor laws and inspect licensed premises. The police conduct periodic "walk-throughs" of licensed premises to check for underage drinkers and as a display of police presence. Police usually spend five to ten minutes in the bar during a walk-through, talking to customers and to the bartender. Officers also perform nightly checks of liquor establishments to ensure compliance with closing laws. Police respond to calls from bars and help deal with intoxicated patrons.
The city council committee of the whole met to discuss ordinance 92-09. During the meeting, a bar owner asked if the walk-through program was simply being used to justify increased license fees. A council member responded that it was not being used solely to justify an increase, but rather was the beginning of a new community policing program.
At trial, the city retained David M. Griffith & Associates (DMG), a national public sector management consulting firm. DMG studied the costs associated with the city's liquor licenses, namely the (1) police walk-through program and closing checks; (2) police responses to direct calls; (3) city attorney expense; (4) city clerk expense; and (5) fire inspection expense. DMG concluded that in 1993 these items cost the city $90,604, and that since the city collected only $41,250 from the issuance of 15 liquor licenses, the license fees were not a net revenue producing item.
Following trial, the trial court dismissed appellants' action, holding that Minn.Stat. § 340A.408, subd. 2(a) (1992) does not require that the costs of issuing, inspecting and enforcing the liquor licenses equal or exceed revenues from liquor license fees. Also, the trial court, by adopting DMG's conclusions that issuing and enforcing city liquor licenses produced a net loss in revenues, essentially found that respondent was complying with the statute even if it were to be narrowly construed so that a municipality had no discretion to have fees exceeding issuing costs.
ISSUE
Did the district court err in determining that the city's liquor license fees were reasonable under Minn.Stat. § 340A.408, subd. 2(a) (1992).
ANALYSIS
The construction of a statute is a question of law and fully reviewable by an appellate court. Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn.1985). Findings of fact, however, will not be set aside unless clearly erroneous. Minn.R.Civ.P. 52.01. Because this court does not render advisory opinions, we consider only the 1993 license fee. See In re Northwestern Bell Tel., 371 N.W.2d 563, 568 (Minn.App.1985), pet. for rev. denied (Minn. Sept. 26, 1985). The evidence in the record relates to the city's costs in 1993 and it would be speculation to determine whether proposed future fees are lawful.
The license fee statute provides:
The license fee for a retail on-sale intoxicating liquor license is the fee set by the city or county issuing the license subject to the limitations imposed under this subdivision. The license fee is intended to cover the costs of issuing and inspecting and other directly related costs of enforcement.
*415 Minn.Stat. § 340A.408, subd. 2(a) (1992) (emphasis added). The last sentence of subdivision 2(a) was added to the statute in a 1992 amendment and is the focus of this case. 1992 Minn.Laws ch. 486, § 8. Subdivision 2 also lists maximum fees that may be assessed against clubs and for wine licenses. Minn. Stat. § 340A.408, subd. 2 (1992).
Appellants argue that the statute expressly and narrowly limits the amount of license fees to the city's provable actual dollar cost of issuing, inspecting and directly enforcing the licenses. The statute essentially restates the common law, so we look to common law principles for guidance. See State by Beaulieu v. City of Mounds View, 518 N.W.2d 567, 570 (Minn.1994) (statute should not be construed against common-law principles unless so required by express words or by necessary implication). At common law, to be reasonable,
a license fee should be intended to cover the expenses of issuing, the services of officers, and other expenses directly or indirectly imposed or incurred.
Lyons v. City of Minneapolis, 241 Minn. 439, 442, 63 N.W.2d 585, 588 (1954). A court will not declare license fees "unreasonable unless they are palpably so." State v. Clousing, 205 Minn. 296, 300, 285 N.W. 711, 713 (1939). Further,
as it is almost an impossibility to impose a license fee which exactly equals the necessary costs of issuance and regulation, it is generally held in our decisions that to be upheld as a valid exercise of the police power a fee need not be so restricted in amount as to eliminate any reasonable revenue which is purely incidental to the issuance of the license and regulation of the business.
Lyons, 241 Minn. at 442-43, 63 N.W.2d at 588. License fees were acceptable under the common law even if they "incidentally yield[ed] some return in excess of the amount necessary to reimburse the city for its police regulatory service." Minneapolis St. Ry. v. City of Minneapolis, 229 Minn. 502, 510, 40 N.W.2d 353, 359 (1949). We note the statute relates only to direct enforcement costs, while the common law rule encompassed both direct and indirect costs. The 1992 amendment is a greater restriction on the license fees than existed at common law. However, we note the amendment does not include mandatory restrictive language that states, for instance, the fee "must not be greater than" or "can not exceed" enforcement costs. The intent of the statute does not appear to deprive a municipality of all discretion in setting reasonable license fee levels.
Appellants contend the district court erred in its conclusion that the statute
does not require that any fee imposed cannot exceed the costs of issuing and inspecting and other directly related costs of enforcement for the license year.
We agree with appellants that the trial court's statement may seem contrary to the intent of the 1992 amendment. However, we conclude that while there must be a relationship between the costs and the license fees, here the record supports the trial court's finding that the city presented enough evidence to sufficiently correlate the slight increase with the projected issuance and enforcement costs. Appellants willingly paid $2,500 each year for more than ten years. The increase of $250 for 1993 is modest. Even in periods of normal inflation, the cost of law enforcement and police protection is generally related to the consumer price index. Testimony at trial indicated that if the fee had been increased since 1980 dollar for dollar with the consumer price index, a liquor license would cost $4,280 in 1993. It would take an expansive view of the role of an appellate court to reverse a municipality's decision to raise a liquor license fee from $2,500 to $2,750. The trial court did not abuse its discretion by finding that the costs of issuing, inspecting and enforcing liquor licenses justified the city's fee increase.
We recognize that a different issue might be presented if the increase was by leaps and bounds and unsupported by any evidence. Had the schedule for fee increases shown a jump of $2,000 or $3,000 per year for five consecutive years, our decision might be different, but that is not our issue. Here, the increase was modest when compared to prior and unobjected to annual fees. The $250 increase appears reasonable based on the *416 common sense assumption that law enforcement costs tend to slightly increase each year rather than decrease.
Appellants argue that the walk-through program is not properly included as a direct enforcement cost. According to DMG's study, the walk-through program accounts for more than $77,000 of the $90,604 total enforcement costs. Taking the DMG study at face value, the city's enforcement costs of $90,604 greatly exceeded the $41,250 it received from license fees. Even if the walk-through program were discounted by 50%, the estimated enforcement costs are still in line with the license fees.
We conclude the fee increase at issue is well within a municipality's discretion to charge appropriate user fees to businesses. We recognize that user and license fees cannot be a subterfuge for a selective real estate property tax that does not fall uniformly on all business property in the same class. But license and user fees for liquor establishments may legitimately be higher than license fees for a nearby (same property class or zone) business involving, for instance, plumbing or electrical equipment. Real estate taxes on similar assessed valuations should be close, but user fees may be disparate depending on issuing, regulating, and enforcement costs.
There is nothing in this record to support a claim that these liquor license fees are a hidden form of a selective real estate tax.
DECISION
The district court did not err in its determination that the city's liquor license fees were reasonable under Minn.Stat. § 340A.408, subd. 2(a) (1992).
Affirmed.
NOTES
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598638/ | 287 So.2d 243 (1973)
John Lee DAVIS
v.
STATE.
1 Div. 402.
Court of Criminal Appeals of Alabama.
November 13, 1973.
Rehearing Denied December 11, 1973.
David L. Barnett, Mobile, for appellant.
William J. Baxley, Atty. Gen., Montgomery, and Andrew J. Gentry, Jr., Sp. Asst. to Atty. Gen., Auburn, for the State.
BOWEN W. SIMMONS, Supernumerary Circuit Judge.
Appellant was indicted and convicted of robbery. His sentence was ten years in the penitentiary. Appeal is from a judgment responsive to the conviction.
The victim named in the indictment was L. B. Stinson. The res gestae, according to the evidence, included another victim by the name of Joseph Martin. Both victims, following a line up, identified the appellant as the person who robbed them by presentation of a pistol and threats. The witnesses were bread salesmen and at the time were on a company truck from which they were preparing to deliver bread to a customer who operated Babe's Hot Dog Stand in Mobile County.
It appears from the evidence that City Detective Sergeant Vincent Richardson entered the investigative picture about a month after the robbery. Sergeant Richardson testified that he became involved because an informant, an eye-witness to the robbery, told him that the defendant, John Lee Davis, committed the robbery. Sergeant Richardson further testified in answer to questions of the defendant's attorney:
"Q. And you didn't talk to these people that were there, who witnessed this?
"A. I was unable to find anybody who witnessed it.
"Q. So, you have someone who told you they witnessed this offense and they are not here in the Court Room to testify?
"A. That's correct.
"Q. And that's the first timethat's the first time, that John Lee Davis entered into this case, is that right?
"A. Yes, sir, to me it is.
"Q. A month after it happened?
"A. Yes, sir."
*244 The witness further testified that he signed the warrant and put out an arrest order for the defendant. Officer Robison made the arrest. The witness further testified that the defendant did not make any statement.
The trial court sustained the state's objection to a question propounded by the defense counsel as to the name of the informant and declined to require the witness to give the name of such informant. Counsel contended that the defendant was entitled to the name of the informant who was a material witness. Until this information was supplied, the witness testified that he could not find anyone who witnessed the robbery.
Under some circumstances, a witness is not required to give the name of an informant. Davis v. State, 46 Ala.App. 45, 237 So.2d 635; McCray v. Illinois, 386 U. S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62.
As we stated in Kenny v. State, 51 Ala. App. 35, 282 So.2d 387(2), "Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, expresses an exception to this testimonial privilege where, as Stewart, J., pointed out in McCray v. Illinois, supra, the issue is guilt or innocence (i.e., conviction beyond a reasonable doubt) as distinguished from that of reasonable probable cause as in the issuance of a search warrant. In the instant case the Rovario exception was before the trial court. The defendant, under both State and Federal constitutions, is entitled to compulsory process for witnesses."
The testimony of the informant might have thrown doubt upon appellant's identity. The two victims, Stinson and Martin, were the only witnesses on this point. While it is the premise that the "informer is a vital part of society's defensive arsenal * * *", we must remember that "the need for a truthful verdict outweighs society's need for the informer privilege." State v. Burnett, 42 N.J. 377, 201 A.2d 39.
Roviaro, supra, says:
"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a' proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors."
We also think it clear that appellant was entitled to know the identity of the other persons as shown by the evidence to have been present when the robbery occurred. This information he might have obtained from the informer who was present along with some others. People v. Lollis, 177 Cal.App.2d 665, 2 Cal.Rptr. 420.
The appellate court in People v. Williams, 51 Cal.2d 355, 333 P.2d 19, observes:
"It has long been recognized that, although the government is generally privileged to withhold the identity of informers, the privilege must give way when it comes into conflict with the fundamental principle that a person accused of crime is entitled to a full and fair opportunity to defend himself. Regina v. Richardson (Eng.), 3 F. & F. 693; see Marks v. Beyfus (Eng.), 25 Q.B.D. 494, 498. While the language employed in describing the restriction on the privilege is not always the same, it does not vary in any substantial respect. Thus, Wigmore states that disclosure may be compelled if it `appears necessary in order to avoid the risk of false testimony or to secure useful testimony' (8 Wigmore on Evidence (3d Ed.1940) § 2374, p. 756), and the United States Supreme Court in its latest opinion on the question declares that a limitation arises from the fundamental requirements of fairness where disclosure is `relevant and helpful to the defense *245 of an accused, or is essential to a fair determination of a cause.' Roviaro v. United States, 353 U.S. 53, 60-61, 77 S.Ct. 623, 628, 1 L.Ed.2d 639."
Appellant-defendant was entitled to the name of the informer. Sustaining the state's objection to the disclosure was error to reverse.
The judgment is reversed and the cause remanded.
The foregoing opinion was prepared by Hon. Bowen W. Simmons, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court.
Reversed and remanded.
All the Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598614/ | 287 So.2d 496 (1973)
STATE of Louisiana and the Parish of Caddo
v.
GULF STATES THEATRES OF LOUISIANA, INC., et al.
No. 52132.
Supreme Court of Louisiana.
December 3, 1973.
Rehearing Denied January 11, 1974.
Arthur R. Carmody, Jr., John M. Madison, Jr., Wilkinson, Carmody & Peatross, Shreveport, Hopkins P. Breazeale, Jr., Breazeale, Sachse & Wilson, Baton Rouge, for defendants-applicants.
William J. Guste, Jr., Atty. Gen., Harry Howard, LeRoy A. Hartley, Asst. Attys. Gen., John A. Richardson, Dist. Atty., Charles R. Lindsay, Asst. Dist. Atty., for plaintiffs-respondents.
Sanders, C.J., Summers, and Marcus, JJ., dissented from denial of rehearing.
On remand from the United States Supreme Court.
CULPEPPER, Justice Ad Hoc.
The State of Louisiana and the Parish of Caddo initiated proceedings seeking to enjoin the exhibition of the motion picture "The Stewardesses" under the Abatement of Nuisances Statute, R.S. 13:4711-17, alleging the film to be obscene.
Defendants challenge the constitutionality of the statute under which the suit was instituted and deny that the film is obscene.
After hearing and rehearing in this Court, judgment was entered permanently enjoining defendants from showing any version of the motion picture within Caddo Parish, 264 La. 44, 270 So.2d 547. Certiorari was granted by the United States Supreme Court, 413 U.S. 913, 93 S.Ct. 3063, 37 L.Ed.2d 1037. Thereafter, that Court *497 issued its mandate which ordered our judgment vacated and remanded the cause to us for further consideration in the light of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-ft. Reels of Super 8 mm Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Heller v. New York, 413 U.S. 483, 93 S.Ct. 2789, 37 L.Ed.2d 745 (1973); Roaden v. Kentucky, 413 U.S. 496, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973); and Alexander v. Virginia, 413 U.S. 836, 93 S.Ct. 2803, 37 L.Ed. 2d 993 (1973).
A hearing has been held in this Court on the remand. Defendants again urge the unconstitutionality of R.S. 13:4711-17 and assert that our prior holding anent obscenity is erroneous.
We have, this date, declared R.S. 14:106 A(2) unconstitutional as violative of the First and Fourteenth Amendments of the Constitution of the United States and Article I, Sections 2 and 3 of the Constitution of the State of Louisiana in the cases of State v. Shreveport News Agency, Inc., 287 So.2d 464 (La.1973) and State v. McNutt, 287 So.2d 478 (La.1973); and R.S. 13:4711-4717 unconstitutional insofar as the provisions therein attempt to regulate obscenity in the case of Gulf States Theatres of Louisiana Incorporated v. Richardson, 287 So.2d 480 (La.1973).
It necessarily follows for the reasons assigned in those cases that the judgment of this Court previously rendered enjoining defendants from showing "The Stewardesses" in Caddo Parish must be reversed and set aside.
For the reasons assigned, the judgment of this court rendered on rehearing on December 18, 1972 is set aside; and plaintiffs' suit is dismissed.
SANDERS, C.J., dissents for the reasons assigned by him in Gulf States Theatres of Louisiana, Inc. v. Richardson, No. 54,044, 287 So.2d 481.
SUMMERS, J., dissents and assigns reasons.
SUMMERS, Justice (dissenting).
I dissent, adhering to the reasons assigned in the original opinion of this Court. See also State v. Rhodes, 283 So. 2d 351 (Fla.1973), and my dissent in State v. Shreveport News Agency, Inc., 287 So. 2d 464, rendered December 3, 1973. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598615/ | 995 F.Supp. 226 (1998)
Jo LIGENZA, Plaintiff,
v.
GENESIS HEALTH VENTURES OF MASSACHUSETTS, INC., et al., Defendants.
No. Civ.A. 96-30201-KPN.
United States District Court, D. Massachusetts.
February 20, 1998.
*227 Frederick A. Hurst, Hurst & Hurst, Springfield, MA, for Plaintiff.
Martin M. Fantozzi, Leonard H. Freiman, David W. Fanikos, Goulston & Storrs, Boston, MA, for Defendants.
MEMORANDUM REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 32 and 33)
NEIMAN, United States Magistrate Judge.
Jo Ligenza ("Plaintiff") filed a claim against Genesis Health Ventures of Massachusetts ("Genesis") and three individual supervisors ("Individual Defendants") with the Massachusetts Commission Against Discrimination ("MCAD"). Plaintiff's claim was filed three months after she was fired from her position with Genesis as a respiratory therapist. Before receiving a decision from the MCAD, Plaintiff removed her complaint to this court. The parties have consented that the matter be heard by the court pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73(b).
In her sixteen count civil rights claim, filed pursuant to 42 U.S.C. § 2000e, Title VII of the Civil Rights Act of 1964 ("Title VII"), and M.G.L. ch. 151B, Plaintiff alleges that Genesis subjected her to sexual harassment by promoting a hostile work environment. According to Plaintiff, during the fifteen months she was employed by Genesis, both Genesis and the Individual Defendants failed to remediate repeated sexual harassment against her by an elderly ventilator-dependent resident in her charge and then retaliated against her when she complained. Before the court is Genesis' motion for summary judgment on Counts I through IV and the Individual Defendants' motion for summary judgment on Counts V through XVI. For the reasons which follow, the court will allow both motions.
I. SUMMARY JUDGMENT STANDARD
In accord with Fed.R.Civ.P. 56(c), summary judgment must be granted if "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." See Fed.R.Civ.P. 56(c); Magee v. United States, 121 F.3d 1, 3 (1st Cir.1997). Once the moving party has demonstrated that no genuine issue of material fact exists, the burden is on the opposing party to contradict the demonstration by coming "forward with specific provable facts which establish that there is a triable issue." Matos v. Davila, 135 F.3d 182, 185 (1st Cir. 1998).
A genuine issue is one which a reasonable fact finder could resolve in favor of the non-moving party. Id. Not every genuine factual conflict, however, necessitates a trial. "It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the non-movant that the materiality hurdle is cleared." Parrilla-Burgos v. Hernandez-Rivera, 108 F.3d 445, 448 (1st Cir.1997) (internal quotations omitted). Indeed, even in employment discrimination cases, where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon *228 conclusory allegations, improbable inferences, and unsupported speculation. DeNovellis v. Shalala, 124 F.3d 298, 306 (1st Cir. 1997).
II. FACTUAL BACKGROUND
Plaintiff was hired by Genesis on August 18, 1994, as a part time per diem employee. (See Def. Exhibit 7 (Ligenza Dep. Vol. I at 127-28).) She was one of four respiratory therapists hired to work in one of Genesis' long term care facilities, Heritage Hall South Nursing & Rehabilitation Center ("Heritage") in Agawam, Massachusetts. (Ligenza Dep. Vol. I at 133.)
Beginning in March of 1995, Defendant Jeffrey Heinze ("Heinze") was the Administrator at Heritage. (Def. Exhibit 5(Heinze Aff. ¶ 3).) In that capacity, he was generally responsible for the operation and management of the facility and for supervision of its one hundred thirty employees. (Id.) Defendant Patricia Bergland ("Bergland") was the Director of Nursing from May of 1994 through, coincidentally, October 26, 1995, the day Plaintiff was terminated, reporting first to the previous administrator and then to Heinze. (Def. Exhibit 1 (Bergland Dep. at 13).) Bergland was responsible for supervision of the approximately seventy-five nurses, nurses aides and respiratory therapists, (id.), and was Plaintiff's immediate supervisor the entire time Plaintiff was employed at Genesis. (Ligenza Dep. Vol. 1 at 122-25.)
From the time that Plaintiff began at Heritage until August of 1995, Michelle Nie was the Unit Manager of A-Wing, the wing on which Plaintiff worked. (Id. at 126.) Beginning in August of 1995, Defendant Irene Smith ("Smith") was the Unit Manager of A-Wing. Smith reported to Bergland. (Def. Exhibit 10 (Smith Aff. ¶ 2).) Although the Unit Manager oversaw operations on A-Wing, Plaintiff testified at deposition that she considered the position to be that of a co-worker, not a supervisor. (Ligenza Dep. Vol. I at 127.)
As a respiratory therapist, Plaintiff was primarily responsible for monitoring respirator-dependent patients. (Ligenza Dep. Vol I at 125.) There were three such patients on A-Wing. (Id.) One was a sixty-nine year old, virtually bedridden, male (hereinafter referred to as the "Patient"), who was admitted to Heritage on January 24, 1994, and resided there until his death in May of 1996. (Smith Aff. ¶ 4; Ligenza Dep. Vol. I at 148.) Information provided by Noble Hospital, the facility from which the Patient transferred, indicated that he made inappropriate sexual comments to female staff members while at that facility. (Pl. Exhibit 1.) Genesis was made aware of this behavior through the required forms sent contemporaneously with the Patient's transfer. (Bergland Supp. Aff. ¶¶ 6-7.)
After his arrival at Heritage, the Patient was evaluated periodically by physicians and social workers who determined that he was depressed. (Bergland Dep. at 46-47.) It was also determined that he made inappropriate, often sexual, comments to the staff. (Id.) As a result, Genesis formulated a care plan to address his depression and misbehavior. (Id. at 96.) The care plan, instituted in July of 1994, instructed all staff members to immediately document instances of inappropriate behavior on monitoring charts and indicate the inappropriateness of the behavior to Patient. (Pl. Exhibit 2a; Def. Exhibit 8 (Ligenza Dep. Vol II at 33).)
Despite this plan, Patient's inappropriate behavior continued. On October 20, 1994, therefore, Genesis began another phase of its care plan. To that end, it contracted with a private vendor, American Geriatric Services, to provide the Patient with counseling and psychotherapy, efforts which continued after Plaintiff was terminated. (Bergland Dep. at 97-100.)
Plaintiff claims that, despite Genesis' care plan, the Patient acted inappropriately toward her from almost the day she began working at Heritage. (Pl. Exhibit 3a.) Pursuant to the care plan, Plaintiff and other employees made numerous notations regarding the Patient's behavior on the monitoring charts provided by Genesis. (Pl. Exhibits 2-5; 7-8.) In addition, according to Plaintiff, she complained to several coworkers about Patient's behavior, although she never complained to any of her supervisors. (Ligenza Dep. Vol II at 22-23). However, Plaintiff once had a conversation with Bergland regarding the inappropriateness of Patient being permitted to lay naked in his bed. (Id.)
*229 On October 26, 1995, Plaintiff was cleaning the tube which ran from the Patient's respirator to his throat when she noticed that he was looking up her blouse. (Ligenza Dep. Vol II at 43-45.) In response, Plaintiff hit the Patient. (Id. at 45.) When she left the room Plaintiff told a co-worker, "I think I am going to be fired. I just hit [Patient]." (Id.) Plaintiff then spoke with Smith and, at her direction, completed an incident report. (Id. at 46.) The incident report was immediately forwarded to Bergland. (Id. at 47-48.) Later that day, Plaintiff met with Bergland. (Id. at 49.) At the beginning of the meeting Plaintiff admitted to hitting the Patient and stated, "I will (probably be terminated." (Id.) Plaintiff was terminated that same day. (Id. at 50.)
At all times during Plaintiff's employment, Genesis had a sexual harassment policy set forth in its employee handbook. (Ligenza Dep. Vol I at 114; Def. Exhibit 3 (Emp. Handbook at 2).) Plaintiff never registered a formal complaint of harassment pursuant to that policy. (Bergland Dep. at 39, 115.)
III. DISCUSSION
A. Genesis' Motion for Summary Judgment
"Title VII of the Civil Rights Act of 1964 provides that it is an `unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment because of such individual's ... sex'." Morrison v. Carleton Woolen Mills, Inc., 108 F.3d 429, 436 (1st Cir.1997) (quoting 42 U.S.C. § 2000e-2(a)(1)). The law was intended to provide a "broad rule of workplace equality." Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). Consistent with that legislative intent, sexual harassment has been found to be one virulent form of sex discrimination in the workplace. Id.
The Massachusetts civil right statute is equally clear and broadly remedial. It provides that it shall be unlawful:
For an employer, by himself or his agent, because of the race, color, religious creed, national origin, sex, sexual orientation, which shall not include persons whose sexual orientation involves minor children as the sex object, or ancestry of any individual to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.
M.G.L. ch. 151B § 4(1). Sexual harassment is prohibited under that civiL rights law as well. College-Town Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 508 N.E.2d 587, 590 (1987).
Two different types of sexual harassment claims have been isolated under both the federal and state statutes. Morrison, 108 F.3d at 436; College-Town, 508 N.E.2d at 591. One such claim is quid pro quo harassment in which a supervisor requires sexual favors from his or her employee as a term or condition of employment. Morrison, 108 F.3d at 436; College-Town, 508 N.E.2d at 591. That is not the allegation at bar. The instant claim is of the other variety, namely, when an employer fosters or allows a hostile work environment based on gender. Morrison, 108 F.3d at 436; College-Town, 508 N.E.2d at 591. Plaintiff also asserts a claim of retaliation for opposing the alleged harassment.
In its motion for summary judgment, Genesis asserts with respect to Counts I and II that it is not liable for sexual harassment because it did not acquiesce to the Patient's sexually charged behavior toward Plaintiff. Second, Genesis maintains, Plaintiff cannot show that Genesis knew or should have known of the hostile work environment or took inappropriate remedial action. Finally, with respect to Counts III and IV, Genesis asserts that Plaintiff cannot establish that the proffered reason for her discharge striking a patient was a pretext for sex discrimination.
1.
A claim of a hostile work environment can survive at this juncture only if sufficient evidence exists that unwelcome conduct based on an employee's sex occurred within the employment setting. Harris, 510 U.S. at 21-22, 114 S.Ct. at 370-71. Moreover, such conduct must be severe and pervasive *230 enough to interfere with the terms and conditions of one's employment and create an abusive environment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 2405-06, 91 L.Ed.2d 49 (1986).
Genesis concedes that, under certain circumstances, albeit limited, employers can be held liable for sexually charged actions of non-employees toward employees. Applicable guidelines of the Equal Employment Opportunity Commission explain:
An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employers control and any other legal responsibility which the employer may have with respect to the conduct of such employees.
29 C.F.R. § 1604.11(e)(1996). Compare Lipsett v. Univ. of Puerto Rico, 864 F.2d 881, 901 (1st Cir.1988) (employer liable for hostile environment sexual harassment perpetrated by supervisors if employer knew or should have known of the harassment and took no appropriate steps to halt it). In essence, an employer may be liable for non-employee misconduct when the employer has the requisite knowledge and control over the situation and fails to take remedial action.
In cases involving restaurants and casinos, for example, employers have been found liable for a patron's sexual harassment of employees when the employer either ratified or acquiesced in the harassment by not taking immediate and corrective action. A casino owner is deemed to have control over the situation and the ability to remove or ban a harassing patron from the premises. Folkerson v. Circus Circus Enter., 107 F.3d 754, 756 (9th Cir.1997). Likewise, an employer whose independent contractor is harassing an employee can terminate the contract. See Sparks v. Reg'l Med. Ctr. Bd., 792 F.Supp. 735, 738 (N.D.Ala.1992). See also Fiske v. R.P. Liquor, 16 MDLR 1044, 1054 (1994) (based on agency principles, employer liable under M.G.L. ch. 151B for hostile work environment created by owner's friend). Concomitantly, an employer can be held liable for harassment of employees by non-employees in the event of the employer's nonfeasance. Folkerson, 107 F.3d at 756 (employer liable if it fails to take corrective action against a patron involved in sexual misconduct against an employee); Powell v. Las Vegas Hilton Corp., 841 F.Supp. 1024, 1028 (D.Nev.1992) (same); Sparks, 792 F.Supp. at 735 (medical center may be liable for sexual misconduct of independent contractor).
Genesis claims, however, that it is in a distinctly different position than such employers because its relationship with patients is significantly constrained by federal and state regulations governing long term care facilities. Patients at such facilities are protected by a full range of rights, 42 C.F.R. §§ 483.10 (resident rights), 483.12(2) (transfer and discharge requirements), cannot be physically restrained for disciplinary purposes, 42 C.F.R. § 483.13; M.G.L. ch. 123 § 21, and cannot be transferred or discharged from a facility for sexual misconduct, 130 C.M.R. 610.220, (A). Moreover, Genesis avows, violation of these regulations exposes it to liability under M.G.L. ch. 93A, the state's consumer protection statute. Finally, as a practical matter, many residents of long term care facilities, including the Patient here, are either physically or mentally ill or both, making it far more likely that they may act in inappropriate ways.
Notwithstanding these considerations, the court does not believe that Genesis can shield itself from liability under Title VII and M.G.L. ch. 151B simply by relying on such regulations. State and federal laws cannot be administered in a discriminatory fashion. See E.E.O.C. v. Allegheny County, 705 F.2d 679, 681 (3d Cir.1983); Kober v. Westinghouse Elec. Corp., 480 F.2d 240, 246 (3d Cir.1973) (citing cases). Cf. E.E.O.C. v. Commonwealth of Massachusetts, 987 F.2d 64, 71 (1st Cir.1993). Although patients have rights, employees of long term care facilities also have the right to a workplace free from sexual harassment. Thus, Genesis may not disclaim all responsibility toward its employees in the name of patient care.
*231 Moreover, the court does not read the cited regulations in as restrictive a way as does Genesis. The regulations do not appear to foreclose Genesis from seeking to remove a patient from its facility. If anything, the regulations provide that if "the safety of individuals in the nursing facility is endangered" or "the health of the individuals in the nursing facility would be otherwise endangered," 130 C.M.R. 610.220(A);, 42 C.F.R. § 483.12, some affirmative action, including removal, may be permissible. Genesis' avowed lack of control over the situation appears to overstate the constraints within which it operates.
The court also rejects Genesis' claim that its written sexual harassment policy protects it from any constructive knowledge of actual harassment. The "Supreme Court has refused to guarantee safe harbor to every employer that provides a grievance procedure and policy against discrimination where the complaining employee failed to invoke that procedure." Cotto v. Gen. Accident Ins. Co. of Puerto Rico, Ltd., 975 F.Supp. 410, 415 (D.P.R.1997) (citing Meritor, 477 U.S. at 72, 106 S.Ct. at 2408). For an employer to insulate itself on that basis, the written policy must be clear, specific and alert to the consequences of sexual harassment. Id. See Farley v. Amer. Cast Iron Pipe Co., 115 F.3d 1548, 1554 (11th Cir.1997).
The applicable policy in the instant matter does not provide such protection. Genesis' sexual harassment "policy" consists of a single line in its Employment Policy Statement and indicates that an individual, believing him or herself to have been harassed, may file a complaint which will be investigated by the Regional Director. (Def. Exhibit 3.) In the court's estimation, this policy, standing alone, hardly shields Genesis from liability.
Nonetheless, because Plaintiff has not produced any material evidence with respect to the essential elements of her claim of sexual harassment, the court believes that Genesis is entitled to summary judgment with respect to Counts I and II. See Meritor, 477 U.S. at 69, 106 S.Ct. at 2406-07 (the existence of sexual harassment must be assessed "in light of the record as a whole and the totality of circumstances."). Thus, even were the court to find that the Patient's offensive action, looking up her blouse, was sufficiently severe and pervasive, which is doubtful, Plaintiff has not shown, nor can she show, that Genesis had actual or constructive knowledge that the Patient's conduct created a hostile environment which unreasonably interfered with Plaintiff's employment.
It is undisputed that Genesis knew that the Patient who was sixty-nine years old, depressed and bedridden, made inappropriate, often sexual, comments to female staff workers. For that very reason, Genesis devised a care plan to address both his mental health and his misconduct, requiring all employees responsible for the Patient's care, including Plaintiff, to note the Patient's behavior on his chart and immediately indicate to him its inappropriateness. When the Patient's behavior persisted, a more intensive regimen was implemented, including counseling and psychotherapy. At no time did Genesis tacitly acquiesce in the Patient's behavior.
However, and more importantly for purposes here, it is also undisputed that Plaintiff never complained to Genesis management about the Patient's behavior. Although she may have complained to several co-workers, the closest Plaintiff came to an allegation of "harassment" was when she mentioned to Bergland the inappropriateness of the Patient being allowed to lie naked in his bed. As a matter of law, however, that single incident does not rise to the level of sexual harassment, let alone a complaint about sexual harassment. So, while an employer, including a nursing home, may be liable for the actions of non-employees, including patients, this is not a situation which necessitates such a finding.
Everybody who came in contact with the Patient from the day he arrived was aware of his problems. His inappropriate behavior was consistently noted and addressed by Genesis in a professional fashion. There is simply no evidence that Genesis had any knowledge of the alleged effect of the Patient's behavior on Plaintiff, beyond what would reasonably be expected in a nursing home. Indeed, the first time Plaintiff reported that she believed the Patient's behavior amounted to sexual harassment was when she filed her complaint with the MCAD, *232 three months after her termination. Without any prior awareness that the misconduct created a hostile work environment for Plaintiff in particular, Genesis had no duty to take any further remedial action. Plaintiff proffers no evidence to the contrary. Accordingly, summary judgment will be allowed on the sexual harassment counts, Counts I and II, against Genesis.
2.
With respect to Counts III and IV, Plaintiff's claims against Genesis for retaliation, the elements of such claims are essentially the same under both Title VII and M.G.L. ch. 151B. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir.1996); Lewis v. Gillette Co., 22 F.3d 22, 24-25 (1st Cir.1994); MacCormack v. Boston Edison Co., 423 Mass. 652, 672 N.E.2d 1, 7 (1996). To establish a prima facie case of retaliation, a plaintiff must demonstrate first that she engaged in an activity protected by Title VII or M.G.L. ch. 151B or that she complained of a violation of those statutes. Lewis, 22 F.3d at 24-25. The success of her claim requires only that she reasonably believed the conduct she protested violated those statutes. Rodriguez-Hernandez v. Miranda-Velez, 132 F.3d 848, 855 (1st Cir.1998). Next, a plaintiff must show that "she suffered an adverse employment action ... and [that] a causal connection existed between the protected conduct and the adverse action." Fennell, 83 F.3d at 535. See also Lewis, 22 F.3d at 24-25; Costello v. Massachusetts Rehab. Comm'n, 982 F.Supp. 61, 66 (D.Mass.1997).
Following the burden shifting paradigm in discrimination cases, once a plaintiff makes a prima facie showing of retaliation, the defendant must proffer a legitimate non-discriminatory reason for the adverse employment action. Fennell, 83 F.3d at 535. Once proffered, the burden shifts back to the plaintiff to offer sufficient evidence that the proffered reason is pretextual. Denovellis v. Shalala, 135 F.3d 58, 63, (1st Cir.1998); Miner v. Connleaf, Inc., 989 F.Supp. 49, 52 (D.Mass. 1997); Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 646 N.E.2d 111, 117 (1995). More specifically, "[i]n a retaliation case, the plaintiff must prove by a preponderance of the evidence that the articulated reason, in significant measure, was a pretext for retaliation." Ruffino v. State Street Bank and Trust Co., 908 F.Supp. 1019, 1045 (D.Mass.1995).
If the claim is brought pursuant to Title VII, as opposed to M.G.L. ch. 151B, the plaintiff must also demonstrate evidence that discriminatory animus motivated the decision to retaliate. Miner, 989 F.Supp. at 52. Such retaliation may be shown by sufficient evidence that the adverse employment action occurred shortly after the protected activity. Costello, 982 F.Supp. at 66. In the alternative, a plaintiff may show retaliation through evidence that otherwise similarly situated individuals did not suffer the same adverse employment consequences. Id.
The court questions whether Plaintiff can even make a prima facie showing of retaliation, it being somewhat unclear in what protected activity she claims to have been engaged. At best, Plaintiff contends that Genesis terminated her in retaliation for her "self-report[ing]" sexual harassment by the Patient: looking up her blouse. This particular "complaint," which Plaintiff claims is distinguishable from her prior notations of the Patient's inappropriate behavior, occurred simultaneously with her reporting that she slapped him.
Even were the court to presume that Plaintiff makes a prima facie showing, she has not demonstrated the existence of specific facts that Genesis' nondiscriminatory justification for her termination slapping a patient was a mere pretext for retaliation. Plaintiff does not dispute the fact that she struck the Patient. In fact, Plaintiff stated at the time of the incident and again at deposition that she "hit [Patient]". Plaintiff also stated to a co-worker, just after she hit the Patient, that "I think I am going to be fired." Finally, when Plaintiff met with her supervisor, that same day, she said, "I will probably be terminated." Plaintiff points to no evidence that Genesis' decision to terminate her for the very reason she predicted was not well within anticipated norms or a pretext for retaliation. It strains credulity to believe that, since July of 1994, Genesis would have requested that staff members record the Patient's inappropriate behavior *233 only to terminate Plaintiff fifteen months latter for following those directions.
Genesis' employee handbook states that, "negligence and inconsiderate treatment in the case of patients" "may result in ... termination" and "rude, discourteous or uncivil behavior; fighting with other persons on facility property" may also "result in disciplinary action and/or termination". In the court's opinion, such grounds for termination are significantly less severe than the incident in question. If termination is justified for negligence or fighting on Genesis' property, then Genesis' proffered reason for terminating Plaintiff, hitting the Patient, is well grounded in its policies. Plaintiff offers little evidence that the termination was pretextual and no evidence that any other Genesis employee who became physical with a patient in violation of policy was allowed to keep his or her position.
In sum, no issues of fact need be resolved here. The only reasonable inference from the evidence presented to the court is that Genesis terminated Plaintiff because she struck a resident, not to retaliate against her. Thus, it is clear that Plaintiff's case fails under both the "pretext only" standard used by Massachusetts courts in the interpretation of chapter 151B, Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 686 N.E.2d 1303, 1309 (1997); Blare v. Husky Injection Molding Sys. Boston, Inc., 646 N.E.2d at 116-17, and the so-called "pretext plus" federal standard. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 524, 113 S.Ct. 2742, 2756, 125 L.Ed.2d 407 (1993). Given the paucity of evidence that Genesis' rationale for firing Plaintiff resulted from anything other than Plaintiff's own misconduct, the court will allow summary judgment on the retaliation counts, Counts III and IV.
B. Individual Defendants' Motion For Summary Judgment
Plaintiff's claims of personal liability against each of the three supervisors for retaliation (Counts V, VII, IX, XI, XIII and XV) and for aiding and abetting sexual harassment (Counts VI, VII [sic], X, XII, XIV, and XVI) can be dealt with in short order. Absent any discrimination or retaliation by Genesis, the Individual Defendants cannot be responsible under M.G.L. ch. 151B § 4(5) for aiding and abetting unlawful discrimination that simply did not exist. See Ruffino, 908 F.Supp. at 1048. At an equally rudimentary level, the Individual Defendants cannot be liable under the state statute because Plaintiff, by her own account, never complained of any harassment to them and has failed to present any genuine or material evidence that they were otherwise aware of such harassment.
The court need not address the more thorny issue of personal liability in Title VII claims. Defendants contend that Title VII was not designed to impose personal liability on supervisors or co-workers. This assertion, however, is a far greater generalization than can be supported by the state of the law in this jurisdiction. See Ruffino, 908 F.Supp. at 1047-48. But see Chatman v. Gentle Dental Ctr. of Waltham, 973 F.Supp. 228, 236-37 (D.Mass.1997). The First Circuit has explicitly declined to resolve the issue. Morrison, 108 F.3d at 444. Cf. Serapion v. Martinez, 119 F.3d 982 (1st Cir.1997). However, even if such personal liability could be imposed under Title VII, it cannot be imposed in this case for all the reasons described with respect to M.G.L. ch. 151B. Accordingly, the court will allow summary judgment on all counts against the Individual Defendants, Counts V through XVI.
IV. CONCLUSION
For the foregoing reasons the court will allow Defendants' motions for summary judgment. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599846/ | 1 So.3d 1054 (2007)
Jarvis Lamar BRIDGETT
v.
STATE of Alabama.
CR-06-1011.
Court of Criminal Appeals of Alabama.
November 2, 2007.
Rehearing Denied December 14, 2007.
*1055 Andrew John Segal, Huntsville, for appellant.
Troy King, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
BASCHAB, Presiding Judge.
Pursuant to a negotiated agreement, the appellant, Jarvis Lamar Bridgett, pled guilty to first-degree unlawful possession of marijuana for other than personal use, a violation of § 13A-12-213(a)(1), Ala.Code 1975. The trial court sentenced him to serve a term of five years in prison, but suspended the sentence and ordered him to serve three years on probation. The appellant did not file any post-judgment motions. This appeal followed.
The appellant argues that the trial court erred in denying his motion to suppress.[1] During the suppression hearing, Investigator Shane Killingsworth of the Huntsville Police Department testified that he and other officers responded to a domestic violence call at the home of the appellant's girlfriend, Gloria Curlan; that the appellant told them he wanted to pack a bag and leave; and that, while the appellant was upstairs packing, Curlan told the officers that there were guns in the bedroom. At some point, officers retrieved a key from the appellant's jacket pocket and discovered a lockbox under the bed where Curlan told them to look for the guns. Killingsworth testified that the appellant stated that the lockbox was his, stated that the key would not open it, and that he would not mind if the officers tried to open it with the key. When they opened the lockbox, the officers found marijuana.
The appellant specifically contends that the officers improperly obtained the key they used to open the lockbox that contained marijuana. The State argues that the relevant issues are confined to the fact that the appellant consented to use of the key to open the lockbox.
*1056 "All evidence obtained by a search that is conducted in violation of the Constitution of the United States is inadmissible in a state court. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961); Loyd v. State, 279 Ala., 447, 186 So.2d 731 (1966). The Fourth Amendment to the Constitution of the United States bans all unreasonable searches. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Whether a search is unreasonable depends upon the facts and circumstances of the particular case. Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). Warrantless searches are per se unreasonable unless they fall within a recognized exception. Ex parte Hilley, 484 So.2d 485(Ala.1985). Those exceptions include: objects in plain view, consensual searches, a search incident to a lawful arrest, hot pursuit or emergency situations, probable cause coupled with exigent circumstances, and a Terry `stop and frisk' situation. Daniels v. State, 290 Ala. 316, 276 So.2d 441 (Ala.1973). Where a search is executed without a warrant, the burden falls upon the State to show that the search falls within an exception. Kinard v. State, 335 So.2d 924 (Ala.1976)."
Ex parte Tucker, 667 So.2d 1339, 1343 (Ala.1995).
It also is well established that
"`[c]onflicting evidence given at [a] suppression hearing presents a credibility choice for the trial court.' Atwell v. State, 594 So.2d 202, 212 (Ala.Crim.App. 1991), cert. denied, 594 So.2d 214 (Ala. 1992). `[A] trial court's ruling based upon conflicting evidence given at a suppression hearing is binding on this Court, and is not to be reversed absent a clear abuse of discretion.' Jackson v. State, 589 So.2d 781, 784 (Ala.Crim.App. 1991) (citations omitted)."
Rutledge v. State, 651 So.2d 1141, 1144-45 (Ala.Crim.App.1994).
By denying the appellant's motion to suppress, the trial court, at least implicitly, made the credibility determination that the appellant did indeed consent to the use of the key to open the lockbox. In his brief to this court, the appellant does not challenge the State's claim that he consented to the actual search of the lockbox. Therefore, we conclude that the appellant consented to the officers' using the key to open the lockbox and that the trial court did not err in denying his motion to suppress. Accordingly, we affirm the trial court's judgment.
AFFIRMED.
McMILLAN, SHAW, and WISE, JJ., concur.
WELCH, J., dissents, with opinion.
WELCH, Judge, dissenting.
I respectfully dissent. The officers in this case, who responded to a report of domestic abuse, had the right to conduct a Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), patdown for their safety. Assuming, without deciding, that Jarvis Lamar Bridgett, the defendant, was actually wearing the jacket at the time of the patdown,[2] once the officers determined that Bridgett did not have a weapon on his person or within his reach and thus that their safety was not in jeopardy, the officers had no reasonable suspicion to detain Bridgett or justifying a search of Bridgett's room. The keys discovered and taken from Bridgett's jacket pocket in no way provided probable cause to conduct a warrantless *1057 search of his room. The warrantless search of Bridgett's room that followed the Terry patdown, specifically the search of the locked box taken from under Bridgett's bed, exceeded the scope of Terry.
Moreover, Bridgett would not have consented to the officers' unlocking and opening the box but for the illegal seizure of the keys. Thus, I believe the marijuana discovered in the box should have been excluded from evidence as it was fruit of the poisonous tree. "`[T]he fruit of the poisonous tree doctrine also extends to invalidate consents which are voluntary.'" Harris v. State, 568 So.2d 421, 424 (Ala. Crim.App.1990) ("[A]lthough the appellant voluntarily consented to the search of his trunk which resulted in the police officer's discovery of the stolen property, because the consent was governed by the fruit of the poisonous tree doctrine, it was invalid. The officer's improper stop of the appellant invalidated his consent to search and, therefore, the stolen property should not have been allowed into evidence.").
Because I believe that the officers exceeded the scope of Terry, I believe that the discovery of the marijuana was the fruit of the poisonous tree doctrine. Therefore, I must respectfully dissent.
NOTES
[1] When he entered his guilty plea, the appellant specifically reserved the right to raise this argument on appeal.
[2] If Bridgett was not wearing the jacket, the keys were discovered pursuant to a search for which there was no probable cause and therefore, were seized pursuant to an unlawful search. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1598990/ | 467 N.W.2d 578 (1991)
STATE of Iowa, Appellee,
v.
John Anthony McFADDEN, Appellant.
No. 89-1179.
Supreme Court of Iowa.
March 20, 1991.
Linda Del Gallo, State Appellate Defender and Andi S. Lipman, Asst. Appellate Defender, for appellant.
Bonnie J. Campbell, Atty. Gen., Amy M. Anderson, Asst. Atty. Gen., Mary E. Richards, County Atty., and Dennis W. Parmenter, Asst. County Atty., for appellee.
Considered by McGIVERIN, C.J., and LARSON, CARTER, NEUMAN and SNELL, JJ.
McGIVERIN, Chief Justice.
Defendant John Anthony McFadden was found guilty, following a jury trial, of third-degree theft in violation of Iowa Code sections 714.1(6) and 714.2(3) (1989). Defendant appeals, raising several contentions. The main issue involves whether criminal liability may result from the delivery of a postdated check.
We transferred the case to our court of appeals. That court affirmed.
We granted defendant's application for further review. We, now, affirm the decision *579 of the court of appeals and the district court judgment.
I. Background facts and proceedings. The record would allow the jury to find the following facts. On March 30, 1989, defendant phoned the Ames branch of Midland Financial Services (Midland) and asked Midland's employee Jeanne Vosika if he could get a cash advance on his parent's credit card. Defendant told Vosika that he did not have the credit card in his possession but that he knew the name of the card, the numbers on the card and the expiration date of the card. Vosika informed defendant that the credit card information, without the actual card, was insufficient to obtain a cash advance.
Defendant then asked whether Midland would cash a check drawn on another bank. Vosika replied that Midland would cash defendant's check drawn on another bank if he had an account at Midland.
Shortly thereafter, defendant arrived at Midland and presented Vosika with a $395 check drawn on the Ames branch of United Bank and Trust (United Bank). Defendant had written his Midland savings account number on the check. Defendant also crossed out the telephone number printed on the check and wrote in a different number. Also significant was the fact that the check was postdated to March 31. At the time of the transaction, however, Vosika did not notice that the check was postdated. Further, Vosika testified at trial that defendant did not tell her that he postdated the check. Vosika gave defendant $395 cash in exchange for the check.
After defendant left the bank, Vosika examined defendant's Midland savings account and discovered that it contained a $3 balance. Vosika called United Bank to verify that defendant had sufficient funds in his checking account to cover the check. She was told that defendant's account had been closed in November 1988 due to overdrafts.
Upon learning that defendant no longer maintained a checking account at United Bank, Vosika attempted to call defendant at the telephone number written on the check. That number was disconnected. Vosika also called the telephone number printed on the check and the telephone number defendant gave Midland when he opened his savings account. The persons answering those telephone calls did not know defendant. Vosika consulted with her supervisor who immediately presented the check to United Bank, and, after United Bank refused to honor the check, notified the police. Shortly thereafter, defendant was arrested. Defendant has never reopened his United Bank account nor reimbursed Midland.
Defendant was charged by trial information with one count of third-degree theft. See Iowa Code §§ 714.1(6), 714.2(3). Specifically, the trial information stated that defendant "did unlawfully make, utter, draw, deliver, or give checks and obtain property or service in exchange therefor while knowing the checks would not be paid when presented...." The case proceeded to a jury trial.
At the close of the state's evidence, defendant moved for judgment of acquittal, see Iowa R.Crim.P. 18(8), arguing that, as a matter of law, prosecution of a postdated check was not authorized under Iowa Code section 714.1(6). The court overruled defendant's motion. Defendant renewed his motion for judgment of acquittal at the close of all evidence and additionally argued that the state had failed to prove the charges against him beyond a reasonable doubt. The court again denied defendant's motion.
Defendant proposed two jury instructions concerning the effect of postdating a check. The court refused to give defendant's requested instructions, finding that the proposed instructions regarded questions of law which the court had previously decided.
The jury found defendant guilty of third-degree theft. Defendant filed motions in arrest of judgment and for a new trial, which were denied by the court. Judgment and sentence were entered against defendant. Defendant appealed.
We transferred the case to our court of appeals. The court of appeals concluded *580 that the district court properly disposed of all issues raised on appeal.
Defendant applied for further review. We granted defendant's application and now consider whether the trial court erred in: (1) ruling that a postdated check qualifies as a check under the theft statute, (2) ruling that criminal liability may be based on a postdated check, (3) overruling defendant's motion for judgment of acquittal because the evidence was not sufficient to support a conviction, and (4) failing to give defendant's requested jury instructions.
Additional facts will be stated as the issues are considered.
II. Defining "check." Defendant contends that, as a matter of law, a postdated check does not qualify as a "check" under Iowa Code section 714.1(6).
Section 714.1 provides, in part:
A person commits theft when the person does any of the following:
. . . .
6. Makes, utters, draws, delivers, or gives any check ... on any bank ... and obtains property or service in exchange therefor, if the person knows that such check ... will not be paid when presented.
Defendant asserts that, applying relevant definitions found in Article 3 of the Uniform Commercial Code (codified in Iowa Code chapter 554) to define the terms of section 714.1(6), we must rule as a matter of law that postdated checks cannot support a conviction under section 714.1(6). Defendant's theory is that postdated checks are not included within the definition of checks as that word is defined by Article 3 of the Uniform Commercial Code.
Initially, we note that definitions found in Article 3 of the Uniform Commercial Code do not control the meaning of words used in chapter 714. See, e.g., Iowa Code § 554.3104(1) & (2) (definitions apply only to Article 3 of the Uniform Commercial Code). The definitions are, however, helpful in determining the meaning of words used in chapter 714.
Article 3 of the Uniform Commercial Code defines check as a draft drawn on a bank and payable on demand. Iowa Code § 554.3104(2)(b). Defendant contends that his postdated check does not meet the requirements of this definition because it was not payable on demand.
Article 3 of the Uniform Commercial Code specifically addresses the effect of postdating checks. It states, in part, "1. The negotiability of an instrument is not affected by the fact that it is ... postdated. 2. Where an instrument is ... postdated the time when it is payable is determined by the stated date if the instrument is payable on demand." Iowa Code § 554.3114. This section provides two rationales concerning why postdating a check does not, by itself, remove an instrument from being classified as a check.
First, section 554.3114(1) explicitly states that a check's negotiability is not affected by the fact that it is postdated. This supports the position that a check's character is not affected by postdating. Further, section 554.3114(2) clearly contemplates that postdating a check does not remove that instrument from being payable on demand. The language of section 554.3114(2) establishes that a check can be both postdated and payable on demand; thus, refuting defendant's argument that a postdated check cannot qualify as a check because it is not payable on demand. Applying these definitions, postdating does not prevent an instrument from falling within the definition of check as the word is used in section 714.1(6).
III. Criminal liability for postdated checks. Defendant argues that even if we find that the instrument he delivered to Midland was a check as required by section 714.1(6), there still would be no criminal liability, citing State v. Doudna, 226 Iowa 351, 284 N.W. 113 (1939). Defendant's position is that Doudna establishes that criminal liability does not result from the delivery of a postdated check because postdating eliminates the fraudulent intent necessary to the criminal charge. We disagree with his interpretation of Doudna.
In Doudna, the defendant delivered a check dated November 28 on November 27. Id. at 353, 284 N.W. at 114. At the time *581 the check was issued, and at all times thereafter, there was not sufficient funds in Doudna's account to cover the check. Id. In upholding Doudna's conviction for falsely uttering a postdated check, we held that the fact that the check was postdated was not a bar to prosecution. Id. at 357-59, 284 N.W. at 116-17. We stated that:
The doctrine that criminal liability may not be predicated upon a postdated check is not based upon the fact that a check bears a date later than the date of its delivery. The reason for such holding is that the representations made refer to a time subsequent to delivery.
. . . .
The check in this case was given by appellant on November 27, after the bank had closed for the day. There was no representation that the check was not then cashable. On the contrary the giving of the check and the statements made at the time, in connection with the surrounding circumstances, were representations as to an existing condition, the same as though it had been given at 6 a.m., on November 28.
Id. at 357-58, 284 N.W. at 116.
Our more recent holding in State v. James, 310 N.W.2d 197 (Iowa 1981), confirms the approach taken in Doudna. In James, we stated that, "the gist of the offense under section 714.1(6) is obtaining something of value through deception." Id. at 200-01. Thus, we said that a person cannot be convicted under section 714.1(6) if the alleged victim knew the check was worthless when presented. Id. at 201. We noted that in that event the victim had not been deceived. Id.
Our holdings establish that when there is an understanding between the parties that a check is not cashable[1] at the time it is received, but will be made so at some time in the future, the representations made are only promises, there is no deception and, thus, no criminal liability results under section 714.1(6). If, however, the surrounding circumstances at the time a check is given, including the statements made, are representations that sufficient funds exist at that time to cover the check, then criminal liability may result even though a check is postdated. Our focus remains on the representations made at the time a check is delivered. State v. Cooper, 169 Iowa 571, 576, 151 N.W. 835, 838 (1915) (affirming conviction for making and passing a postdated check).
Under our approach, a postdate is only evidence that a check was intended as a promise of future payment and does not alone relieve a defendant of criminal responsibility. It must also be established that both parties understood that a check was not cashable when delivered before criminal liability is precluded as a matter of law. Where both parties do not understand that a postdated check is not cashable until a future date, the question of guilt should be submitted to the fact finder. It is then up to the fact finder to determine whether the maker deceived the party receiving the check by presenting a check that the maker knew, at the time of delivery, would not be paid when presented to the bank it was drawn upon.
Other jurisdictions faced with deciding whether the fact that a check is postdated should, under all circumstances, be an absolute defense to a criminal charge have reached a similar result. See, e.g., State v. Ramsbottom, 89 Idaho 1, 7, 402 P.2d 384, 387 (1965) (a crime is committed when a person knowingly and intentionally issues a postdated check without calling to the attention of the payee that it is postdated); Mercer v. Commonwealth, 332 S.W.2d 655, 655-56 (Ky.1960) (fact that a check is postdated does not by itself relieve the maker of criminal liability for uttering a worthless check; testimony of person accepting the check that he believed the check was good is sufficient to create a jury question); People v. Gerber, 115 Misc.2d 222, 229, 453 N.Y.S.2d 998, 1002-03 (N.Y.Crim.Ct.1982) (person receiving a postdated check must have notice of the postdating before the *582 person writing the check can avoid criminal liability); State v. Bruce, 1 Utah 2d 136, 139-40 262 P.2d 960, 962-63 (1953).
Defendant cites State v. Papillon, 223 Neb. 325, 389 N.W.2d 553 (1986), in support of his position that criminal liability can never result from a postdated check. We, however, believe that Papillon does not stand for that proposition. In Papillon, the Nebraska supreme court held that, "where the maker of a postdated check informs the payee at the time of its delivery that he or she has no funds in the bank to pay the check if presented immediately after issuance, the maker cannot be guilty of [a crime]." Id. at 329, 389 N.W.2d at 556. The Nebraska supreme court did not hold that the postdating of a check is an absolute defense to criminal liability; it did not determine the result when the maker represents that the check is then good and the payee is not aware that a check is postdated. That is the situation we have in this case.
In reaching the conclusion that postdating a check should not be an absolute defense, the Utah supreme court suggested the following hypothetical:
[A]ssume a maker postdated a check when he had no account whatsoever and never had any intention of having one. To eliminate the possibility of argument or doubt, suppose further that in the presence of witnesses he had so declared and that he had a scheme to defraud the payee by the use of a postdated check because he knew that he would thus be immune from criminal prosecution; add to this the fact that he used active concealment, trickery or falsehood in leading the payee to believe the check was not postdated and that the circumstances were such that the payee, acting with due care, relied thereon and accepted the check as one of the current date. Surely it would not then be contended that the maker should be rewarded for his chicanery and held immune from prosecution because he included the postdating of a check as part of his scheme to defraud.
Bruce, 1 Utah 2d at 139-40, 262 P.2d at 963. Thus, that court determined that if, "the payee acting reasonably accepts the check as one of the current date, ... the question of guilt should be submitted to the jury." Id. at 140, 262 P.2d at 963. We agree with the statements of the Utah supreme court.
In this case there was evidence that Vosika, the Midland teller, was not aware that defendant's check was postdated. Further, Vosika testified that she would not have accepted defendant's check if she had known that the check was not then good. This testimony provided evidence that the parties had no understanding that defendant's check would not be collectible until a later date. Therefore, because both parties did not understand that the check was not immediately cashable, defendant was not entitled to a judgment of acquittal as a matter of law. The district court properly submitted the question of guilt to the jury.
IV. Sufficiency of the evidence. Defendant contends there was not sufficient evidence to support his conviction for third-degree theft under sections 714.1(6) and 714.2(3).
The instructions given at trial required the state to prove beyond a reasonable doubt each of the following elements:
1. That on or about March 30, 1989, the defendant did make, utter, draw, deliver or give to Midland Financial a check in the amount of $395.
2. That the check was drawn on United Bank and Trust.
3. That upon delivery of the check the defendant received $395 cash.
4. That the defendant knew at the time he presented the check to Midland Financial it would not be paid when presented for payment to United Bank and Trust.
Defendant's specific contention is there was not sufficient evidence to support a finding that he knew the check he cashed at Midland would not be paid when presented. We disagree. In addition to other evidence we have set forth, the following testimony was introduced at trial to establish that defendant knew the check would not be paid when presented: Defendant's own testimony stating he had received notice *583 via certified mail that his checking account at United Bank had been closed due to overdrafts more than 4 months prior to his delivering the check to Midland on March 30, and, that he owed United Bank more than $800 in connection with those overdrafts; and defendant never informed the teller that the check was postdated and was not then cashable. Finally, the fact that defendant cashed a check drawn on his closed United Bank account at Midland when there was a United Bank within close walking distance provides further evidence that defendant knew the check would not be honored by United Bank when presented.
We have reviewed the record in this case and agree with the district court and the court of appeals that there is substantial evidence such that a rational trier of fact could have found defendant guilty beyond a reasonable doubt of every element of third-degree theft.
V. Jury instructions. Defendant next contends the trial court erred in failing to give certain requested jury instructions.
The court of appeals found no error in the trial court's rulings on these issues and we agree.
We affirm the decision of the court of appeals and judgment of the district court.
DECISION OF COURT OF APPEALS AND JUDGMENT OF DISTRICT COURT AFFIRMED.
NOTES
[1] We use the words "not cashable" in the sense that the check is not then payable from funds on deposit. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599021/ | 729 So.2d 671 (1999)
Mary Ann COX
v.
Rosa MASUN, et al.
No. 98-CA-1857.
Court of Appeal of Louisiana, Fourth Circuit.
February 10, 1999.
Writ Denied April 30, 1999.
*672 Robert P. Hogan, Madisonville, Louisiana, Jeffrey E. Richardson, Margaret M. Joffe, Adams and Reese, L.L.P., New Orleans, for defendants-appellees.
William E. Mura, Jr., Warren A. Forstall, Jr., New Orleans, Louisiana, for plaintiff-appellant.
BYRNES, J.
Plaintiff, Mary Ann Cox, sued for injuries allegedly sustained when the driver of the van in which she was riding allegedly without warning braked suddenly, throwing plaintiff to the floor. Plaintiff alleges that the driver of the van braked when an unknown vehicle unexpectedly pulled into the path of the van. Plaintiffs petition does not allege that the actions of the unknown vehicle were in any way negligent. No collision occurred and the "phantom" vehicle has never been identified. Plaintiff sued MGA Insurance Company as the liability insurer and as the uninsured/underinsured motorist insurer of the van in which she was a passenger; Economy Fire & Casualty Insurance Company as plaintiffs uninsured motorist carrier; Rosa Masun and Virginia Johnson as owners of the van and as the employers of Bobby Harris; and Bobby Harris as the driver of the van.
Prior to trial, plaintiff dismissed all defendants with the exception of MGA as the U.M. insurer of the van and Economy Fire & Casualty Insurance Company as plaintiffs personal U.M. insurer.
With the consent of all parties, the matter was submitted to the trial judge based on the depositions of the plaintiff, the driver of the van and Dr. Nutik along with the insurance policies. All parties were given the opportunity to submit post-trial memoranda. The trial judge rendered judgment dismissing plaintiffs claims and subsequently denied plaintiffs motion for a new trial. Plaintiff appealed. We affirm.
The trial court ruled that the plaintiff failed to prove that the van was insured by MGA. A prerequisite for the successful prosecution of plaintiffs claim for uninsured motorist coverage is the making of a successful case proving that an uninsured motorist was at fault in causing the accident. The foundation *673 of any such case must necessarily be based on allegations to that effect. But plaintiffs petition and amended petitions make no such allegations. The second numbered paragraph of plaintiffs original petition mentions that a phantom vehicle "crossed lanes into traffic in front of the van" but makes no allegation of negligence or causation in connection therewith. The only implication of negligence contained in that paragraph is not directed at the phantom vehicle, but to the van in which the plaintiff was a passenger was driving which plaintiffs petition alleged was being driven "at an excessive rate of speed." In the sixth numbered paragraph of her original petition, plaintiff specifically alleged that her injuries were caused by the negligence of the driver and owners of the van and described what those acts of negligence were. Plaintiff failed to allege any acts of contributory negligence on the part of the "phantom" driver.
In plaintiff's First Supplemental and Amending Petition For Damages, plaintiff added MGA as a defendant as the insurer of Virginia's Medical Transportation, but made no mention of the phantom driver.
In plaintiff's Second Supplemental And Amending Petition, plaintiff names MGA as the underinsured/uninsured insurer of Virginia's Medical Transportation, but again fails to make any reference to the phantom vehicle.
The mere naming of a U.M. carrier defendant in not sufficient to establish negligence and causation on the part of a phantom vehicle in the absence of any allegations of negligence or causation on the part of the phantom vehicle. This is especially true where the only allegations of negligence and causation directly and by implication indicate that plaintiffs alleged injuries were caused entirely through the fault of parties other than the phantom vehicle. Plaintiffs allegations are not sufficient to support a finding of phantom vehicle fault, even if such fault could be demonstrated.
The only information in the record about the facts of the accident is contained in the depositions of the plaintiff and the driver. Neither of them could identify the van in which the plaintiff was a passenger with sufficient certainty to enable the trial court to determine whether the van was one of the vans listed in the MGA insurance policy. Plaintiff offered no other evidence concerning the identity of the van. We cannot say that the trial court was manifestly erroneous in finding that plaintiff failed to prove that the van was insured by MGA.
The trial court found plaintiff could not recover from her own uninsured motorist carrier, Economy, because LSA-R.S. 22:1406(D)(1)(f) requires that when there is no contact between the vehicles, proof of the negligence of the phantom vehicle must be made by an independent and disinterested witness. It is undisputed that the deposition testimony of the plaintiff does not meet the requirements of LSA-R.S. 22:1406(D)(1)(f). The only other testimony about causation of the accident came from the deposition of the driver of the van who was a defendant at the time he was deposed.[1] It is undisputed that he was not a disinterested witness at the time of his deposition. The trial court held, and we agree that where deposition testimony is used in lieu of live testimony, the independent status of the witness under LSA-R.S. 22:1406(D)(1)(f) is to be determined at the time he gives his deposition, not the time at which his deposition may be used at trial. This same reasoning applies to plaintiffs claim against MGA for U.M. coverage, although the trial court did not specifically refer to MGA when analyzing this issue.
We find no merit in plaintiffs contrary argument that the language of LSA-C.C.P. art. 1450 implies that we should evaluate the disinterestedness of a witness at the time the deposition is offered at trial in lieu of live testimony[2], rather than at the time *674 that the witness-defendant was deposed. O'Boyle v. Piglia, 95-990 (La.App. 5 Cir. 2/27/96); 670 So.2d 1339, is inapposite. In O'Boyle the plaintiff settled with the witness-defendant prior to the time that witness testified. The O'Boyle court found that under those circumstances the witness was disinterested when he testified at trial even though he had not yet been dismissed formally from the case. In view of the settlement, at the time the witness in O'Boyle testified he was a defendant only in a technical sense in name only, but in reality and in substance he was disinterested, i.e., he had no further interest in the outcome of the case. Economy makes the excellent point that the fact that Harris' deposition testimony is introduced at trial minutes after plaintiff dismissed her claims against him does not somehow magically transform his biased deposition testimony into that of a disinterested witness. Additionally, Economy points out that even though the plaintiff may have dismissed her claims against Harris at the time of trial, Economy did not dismiss its cross-claim.
For the foregoing reasons, the judgment of the trial court is affirmed.
AFFIRMED.
NOTES
[1] Plaintiff did not offer the testimony of the only potentially disinterested witness, Barbara Flowers, plaintiff's fellow guest passenger.
[2] At the same time that the parties agreed to submit the case on depositions, the plaintiff dismissed her case against, among others, the driver, Bobby Harris, retaining as the only defendants MGA and Economy in their capacity as U.M. carriers. Plaintiff contends that her dismissal of Harris as a defendant made him a disinterested party at the time of trial. Plaintiff argues that it is this independent status at the time of trial that should determine the way the trial court and this Court should view his deposition testimony. We disagree. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1645267/ | 994 So.2d 535 (2008)
LOUTRE LAND AND TIMBER COMPANY
v.
Wilton A. ROBERTS, Edward Roberts, Mark A. Roberts and Toni L. Roberts Daschke.
No. 2008-C-1422.
Supreme Court of Louisiana.
October 31, 2008.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599135/ | 729 So. 2d 536 (1999)
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, Appellant,
v.
Ray BALAGUER, Appellee.
No. 98-234.
District Court of Appeal of Florida, First District.
April 16, 1999.
Elsa Lopez Whitehurst, Assistant General Counsel, Department of Business and Professional Regulation, Tallahassee, for Appellant.
William J. Johnson, Tallahassee, for Appellee.
WEBSTER, J.
The Department of Business and Professional Regulation (Department) seeks review of a final order of the Commission on Human *537 Relations that adopted findings of fact made by an administrative law judge and granted a petition for relief from an unlawful employment practice, directing the Department to "cease and desist discriminating against applicants for promotion on the basis of gender" and to promote appellee (Balaguer). According to the Department, several critical findings of the administrative law judge are clearly erroneous, and the remaining findings are legally insufficient to sustain the order. We agree and, accordingly, reverse.
Balaguer was a finalist for promotion to law enforcement sergeant in the Department's Division of Alcoholic Beverages and Tobacco, as was a woman. The woman received the promotion, and Balaguer filed a petition with the Commission on Human Relations, claiming that he had been discriminated against based on age and gender. Following an investigation, the Commission's executive director determined "that there [wa]s no reasonable cause to believe that an unlawful employment practice ha[d] occurred." Balaguer then requested a formal administrative hearing.
Following the hearing, the administrative law judge issued a recommended order in which he found that the Department, through its Division of Alcoholic Beverages and Tobacco, had engaged in unlawful gender discrimination, and recommended that the Department be directed to stop such discrimination and to promote Balaguer to sergeant. Notwithstanding the Department's exceptions to the recommended order, the Commission on Human Relations concluded that the administrative law judge's findings of fact "[we]re supported by competent substantial evidence," and adopted them. It also adopted (with minor modifications) the administrative law judge's conclusions of law and recommendations, and directed the Department to stop discriminating based on gender and to promote Balaguer to sergeant.
Among the critical findings of fact made by the administrative law judge are the following: (1) "There was no consideration of the candidates' formal education"; (2) "The [interview] panel considered [the female applicant's] resume"; (3) "[Balaguer's] supervisor of 11 years, who interviewed both [the female applicant] and [Balaguer], found that [Balaguer] was not as skilled in licensing as [the female applicant] not because his answers were wrong, but because they reflected a management style or approach which was less compatible with his than was [the female applicant's]"; (4) "[The woman] was subsequently discharged for reasons relating to her conduct"; (5) There was "evidence of a comment made by an unidentified member of the [interview] panel that promotion of a female was desirable in terms of the agency's equal opportunity goals.... [T]his comment... reflects a bias based upon sex which was accepted and went unchallenged by the other members of the panel all of whom were senior officers in the agency"; (6) "[The female applicant] alone filed a resume which was considered by the panel and the panel did not consider the education of the applicants in accordance with historic precedent." As the administrative law judge acknowledged in his conclusions of law, these findings constituted the support for his ultimate finding that Balaguer had been discriminated against because of his gender. The Department filed an exception to each of these findings with the Commission on Human Relations, arguing that they were not supported by competent, substantial evidence. It renews that argument here.
The Department correctly acknowledges that, with regard to employment discrimination cases such as this, the proper standard of review as to findings made by the administrative law judge is whether the findings are "clearly erroneous." In Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991), an employment discrimination case, we said:
The ultimate question of the existence of discrimination is a question of fact. Thus, an appellate court's power to alter the lower tribunal's finding in that regard is limited to those findings that are clearly erroneous.... Consequently, a hearing officer's finding of no discrimination should only be set aside if that finding is clearly erroneous, or is based on clearly erroneous findings of fact or a mistaken view of the law.
(Citations omitted.)
Having carefully read the record, we can find no evidentiary support for the critical *538 findings of fact set out above. As a result, we are constrained to conclude that they are clearly erroneous. Without the support of those findings, the ultimate finding of gender discrimination is, likewise, clearly erroneous, and cannot stand. Because there is no competent evidence from which one might find that the Department had discriminated against Balaguer based on gender, we reverse the final order of the Commission on Human Relations, and we remand with directions that the Commission enter an order denying Balaguer's petition for relief.
REVERSED and REMANDED, with directions.
BOOTH and JOANOS, JJ., CONCUR. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1822379/ | 969 So. 2d 610 (2007)
STATE of Louisiana
v.
Robert BAILEY, Jr.
No. 2007-KK-1922.
Supreme Court of Louisiana.
December 7, 2007.
Writ denied.
CALOGERO, C.J., and KIMBALL, J., would grant.
JOHNSON, J., dissents with reasons.
JOHNSON, Justice, would grant the writ application and assigns reasons.
Robert Bailey, Jr., defendant, filed a motion to recuse LaSalle Parish District Attorney, J. Reed Walters, alleging that he has abused his prosecutorial authority by taking race into account when exercising his charging authority. On June 13, 2007, the trial court denied the motion to recuse the district attorney. Bailey sought writs to the court of appeal. The court of appeal denied Bailey's writ application.
The facts of this case are well known because of wide spread media coverage. Bailey is one of the six African-American youths,[1] known as the "Jena 6", who were arrested and charged with attempted second degree murder, and conspiracy to commit second degree murder, following an altercation at Jena High School on December 4, 2006, where a white student, Justin Barker was beaten.[2]
On August 31, 2006, several African-American students at Jena High School requested to sit beneath a large tree located on the school's grounds, which was known in the community as traditionally reserved only for white students. The African American students were granted permission by a school administrator, and they sat beneath the tree. The next day, September 1, 2006, students arrived on campus at Jena High School to find three nooses dangling from the large tree. On September 6, 2006, the Principal called an assembly. The Jena Police Department *611 asked that La Salle Parish District Attorney, J. Reed Walters, attend and speak at the assembly. The students believed to be responsible for hanging the nooses were identified, and the Principal of Jena High School, Scott Windam, recommended that they be expelled. However, the LaSalle Parish School Board, represented by District Attorney J. Reed Walters, determined that the noose hangings were a "prank," rather than a hate crime, and the District Attorney refused to use his authority to charge any students with a criminal offense. The white students found responsible received only a three days in-school suspension.
The mild punishment received by the white students involved in hanging the nooses on the school campus sparked a series of confrontations between African-Americans students and white students, and heightened racial tension throughout the town of Jena, Louisiana. On December 1, 2006, there was a private party at the Jena Fair Barn where Six Black youths, including 16 year-old Bailey attempted to enter the party, but were refused entrance. An unknown white male and the black students got into a fight, and all were told to leave the party. Once outside, the black students were involved in another fight with a group of whites males, who were not students. The Police were called to investigate. Justin Sloan, a white male, was charged with simple battery for his role in the fight.
On December 2, 2006, there was an altercation between three African-American students, including the defendant, and Matt Windam, an older white male, at the "Gotta-Go" convenience store. Windam alleged that Bailey and his friends chased him, that he ran to get his gun, and that the students wrestled it away from him. The District Attorney charged Bailey and two other African American students in connection with this incident, but no criminal charges were filed against the older white male involved in the altercation. The same weekend, Bailey was targeted and beaten in the head by several older white males while attending a party. Justin Sloan was the only attacker who was apprehended that night, and he was charged only with simple battery, a misdemeanor offense.
On December 4, 2006, another fight broke out, this time at Jena High school, where Justin Barker allegedly received several contusions as a result of the altercation, and was sent to the local hospital for treatment. He was released from the hospital within three hours, and was able to attend a school ring ceremony that evening. Bailey and five other African-Americans students were arrested and charged with aggravated second-degree battery in connection with the school fight involving Barker, and all six students were expelled from Jena High School. The District Attorney elected to charge all six of the African-American Students with attempted second-degree murder and conspiracy to commit second-degree murder in connection with the school fight.
Bailey alleges that he and other African-Americans were victims in several incidents, and the District Attorney failed to act because the perpetrators were white. At the hearing on the motion to recuse, the defense counsel was prevented from eliciting testimony about the District Attorney's role as advisor to the LaSalle Parish School Board, and his involvement in the decision to expel Bailey.
Our Justice system has failed if citizens can not expect equal protection of the law and equal application of the law.
Generally, the district attorney has charge of every criminal prosecution by the state in his district. La. Const. art. V, § 26. See also LSA-.C.Cr.P. art. 61. The *612 district attorney determines whom, when, and how he shall prosecute. LSA-C.Cr.P. art. 61. Nonetheless, it has long been the rule in Louisiana that the district attorney, as a quasi-judicial officer, must be fair and impartial, and animated by a sense of public duty, rather than stimulated by a hope of private gain. State v. Tate, 185 La. 1006, 1019, 171 So. 108 (1936). Thus, LSA-C.Cr.P. art. 680(1) provides:
A district attorney shall be recused when he:
(1) Has a personal interest in the cause or grand jury proceeding which is in conflict with fair and impartial administration of justice[.]
In Plaquemines Parish Com'n Council v. Perez, 379 So. 2d 1373 (La.1980), this court held that LSA-C.Cr.P. art. 680 is not an unconstitutional restriction of the plenary powers granted to district attorneys by La. Const. art. V, § 26 because the recusation provision found in Article 680 is required by the constitutional guarantee of the fair and impartial administration of justice. In reaching this conclusion, the court cited La. Const. art. I, § 2, which provides, "No person shall be deprived of life, liberty, or property, except by due process of law." Id., 379 So.2d at 1377. Additionally, the court cited La. Const. art. I, § 22, which provides, "All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights." Id., 379 So.2d at 1377-78.
The legislature first provided for the recusation of district attorneys in 1877. Id., 379 So.2d at 1376. At that time, the grounds provided for recusation of a district attorney were specified relationships to an accused or injured party, and prior employment or consultation of the district attorney by the accused party. Id. An additional ground for recusation was added in art. 310 of the 1928 Code of Criminal Procedure such that recusal was required if the district attorney had "a personal interest adverse to the prosecution." Id.
In Tate, the court ordered recusation under LSA-C.Cr.P. art. 310 (1928) of a district attorney who was employed as an attorney in several civil suits against the defendant, stating that a district attorney "should not be involved or interested in any extrinsic matters which might, consciously or unconsciously, impair or destroy his power to conduct the accused's trial fairly and impartially." Tate, 185 La. at 1020, 171 So. at 112. Subsequently, in State v. Marcotte, 229 La. 539, 86 So. 2d 186 (1956), the Court followed Tate when it declared improper the trial court's refusal to hear evidence on a motion to recuse a district attorney for allegedly having a personal interest adverse to that of the prosecution. Subsequently, the grounds of recusation of a district attorney were placed in LSA-C.Cr.P. art. 680 and generally followed LSA-C.Cr.P. art. 310 (1928) and Louisiana jurisprudence. See LSA-C.Cr.P. art. 680, Comment (b). The former ground of "personal interest adverse to that of the prosecution" was changed to the current language of "personal interest in the cause which is in conflict with fair and impartial administration of justice" to codify the Tate decision and to address its criticism by two of the Marcotte Justices. See Id. See also Perez, 379 So.2d at 1377; Charles J. Yeager & Lee Hargrave, The Power of the Attorney General to Supercede a District Attorney: Substance, Procedure & Ethics, 51 La. L.Rev. 733, 746 (1991) ("The ethical ideal of Tate and its codification, article 680, is that of the district attorney as an excellent instrument of the law, who actualizes the law objectively in his professional choices and judgments, *613 but without the influence of personal or self interest in those judgments.").
This amended language was at issue in Perez. That case involved an alleged theft of public funds by an employee of the Plaquemines Parish Commission Council that was accomplished by the use of forged checks drawn against the Council's account with the Delta Bank and Trust Company. A special grand jury was convened by the district attorney to investigate the allegations. Plaintiffs, the Council and its president, brought suit to compel the recusation of the district attorney and to enjoin him from taking any action with respect to the investigation of the theft and of the Council. The Council president was the brother of the district attorney. The petition for recusation alleged the district attorney had a disqualifying personal interest in the cause because he was the chairman of the board of directors of the Delta Bank and a major stockholder. The petition also alleged the district attorney was employing the current investigation as a means of gratifying his personal animosity against his brother. In response to the suit, the district attorney filed several exceptions, including an exception of no cause of action.
In my view, based on the standard set forth above, I find that the record contains sufficient evidence for recusal of the LaSalle Parish District Attorney, J. Reed Walters. In the public statement, the District Attorney stated his intent to charge Bailey and his co-defendants with the harshest crimes, and to seek the maximum penalty allowed by law, while characterizing efforts to intimidate African-Americans as a "prank," and bringing only misdemeanor charges against the whites who assaulted Bailey.
NOTES
[1] The six charged were Robert Baily, Jr.(17 y.o.); Mychal Bell(16 y.o.);Carwin Jones (18 y.o.); Bryant Purvis (17 y.o.); Theodore Shaw (17 y.o.); and Jesse Ray Beard, who was charged as a juvenile because he was 14 years old at the time of the incident.
[2] The bill of information was amended to charge Bailey with aggravated second degree battery and conspiracy to commit aggravated second degree battery in violation of LSA-R.S. 14:34.7 A (1)(2) and B | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599881/ | 788 F. Supp. 324 (1992)
Charles N. WORTHAM and Anna F. Wortham, Ind. and d/b/a Electro-Comm System, Plaintiffs,
v.
EXECUTONE INFORMATION SYSTEMS, INC., Defendant.
Civ. A. No. H-91-3689.
United States District Court, S.D. Texas, Houston Division.
April 2, 1992.
*325 Robert G. Taylor, II, Taylor & Cire, Houston, Tex., for plaintiffs.
Andrew C. Schirrmeister, III, Baker & Botts, Houston, Tex., for defendant.
ORDER
HITTNER, District Judge.
Pending before this Court is a motion to remand (Document # 5) filed by plaintiffs Charles N. Wortham and Anna Faye Wortham, Individually and d/b/a Electro-Comm System ("the Worthams"). The Court has considered the motion, the submissions of the parties, and the applicable law.
The Worthams originally filed this action on September 6, 1991, in the 189th Judicial District of Harris County, Texas, alleging breach of contract, gross negligence, injury to business reputation, embarrassment, humiliation, and mental anguish. On September 17, 1991, counsel for the Worthams sent a copy of the Plaintiffs' Original Petition and citation, along with a letter indicating that the Petition had been filed, to defendant Executone Information Systems, Inc. ("Executone"). See Document # 5, Exhibit B. Executone's Vice-President and General Counsel received the letter and Petition on September 21, 1991. Id. On October 14, 1991 and again on November 13, 1991, the Worthams agreed to delay formal service until Executone could consider settlement possibilities. Id. at Exhibit C; Document # 6, Exhibit A. Executone's registered agent received formal service on November 26, 1991. See Document # 6, Exhibit B. Executone filed its notice of removal on December 13, 1991. See Document # 1. The Worthams claim in the instant motion that Executone's removal was untimely, and thus, this cause should be remanded to state court.
The notice of removal must be filed "within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based ..." 28 U.S.C.A. § 1446(b) (West Supp.1991). When, as here, removability can be determined from the face of the original state court petition, the thirty day removal period runs from the date the defendant receives the petition. Harding v. Allied Products Corp., 703 F. Supp. 51, 52-53 (W.D.Tenn.1989) (relying on plain language of § 1446(b), which says "receipt by defendant, through service or otherwise ..."); Uhles v. F.W. Woolworth Co., 715 F. Supp. 297, 298 (C.D.Cal.1989) (holding that thirty day period began to run when defendant's in-house counsel received copy of complaint and engaged in settlement negotiations). See also Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-109, 61 S. Ct. 868, 872, 85 L. Ed. 1214 (1941) (noting that removal statutes are to be strictly construed against removal). Even if the petition has not been formally served, the defendant is on notice as to removability. The fact that Executone was evaluating settlement possibilities did not abate the thirty day period for removal. Executone could have initiated removal proceedings while considering settlement options or obtained a formal waiver of the time period in § 1446(b) from the Worthams.
*326 Based on the foregoing, the Court
ORDERS that the Worthams' motion to remand (Document # 5) is GRANTED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599882/ | 1 So. 3d 1052 (2008)
Teresa Lynn MORRISON
v.
Danny MORRISON.
2070136.
Court of Civil Appeals of Alabama.
July 18, 2008.
Joshua J. Lane, Anniston, for appellant.
William Thompson, Talladega, for appellee.
BRYAN, Judge.
Teresa Lynn Morrison ("the wife") appeals a judgment divorcing her from Danny *1053 Morrison ("the husband"). For the reasons given below, we dismiss the wife's appeal.
On May 27, 2004, the wife sued the husband for a divorce on the grounds of incompatibility of temperament and irretrievable breakdown of the marriage. She sought an equitable division of the parties' marital assets and debt, an award of pendente lite and "permanent" alimony, and an award of an attorney's fee. Answering, the husband counterclaimed seeking a divorce on the ground(s) of adultery and/or incompatibility. Additionally, he sought an equitable division of the marital assets, reimbursement for certain debts, and an award of "temporary and permanent support and maintenance."
The trial court held an ore tenus proceeding. On July 6, 2007, the trial court entered a judgment divorcing the parties on the ground of incompatibility and allocating the parties' marital assets and debt. The wife purported to move to alter, amend, or vacate the trial court's judgment, seeking an additional portion of the marital assets, an award of periodic alimony, and an award of a portion of the husband's retirement benefits. The trial court subsequently denied the wife's motion. The wife then appealed.
On appeal, the wife argues that the trial court erred by failing to award her periodic alimony and by failing to reserve jurisdiction to award periodic alimony in the future. However, neither party questions the jurisdiction of this court.
"`Although neither party has raised the issue of this court's jurisdiction over this appeal, we note that "jurisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu." Nunn v. Baker, 518 So. 2d 711, 712 (Ala.1987). The question whether a judgment is final is a jurisdictional question, and the reviewing court, on a determination that the judgment is not final, has a duty to dismiss the case. See Jim Walter Homes, Inc. v. Holman, 373 So. 2d 869, 871 (Ala.Civ.App.1979).'"
Novak v. Novak, 963 So. 2d 652, 653 (Ala. Civ.App.2007) (quoting Hubbard v. Hubbard, 935 So. 2d 1191, 1192 (Ala.Civ.App. 2006)). Furthermore,
"[a] final judgment is one `that conclusively determines the issues before the court and ascertains and declares the rights of the parties involved.' Bean v. Craig, 557 So. 2d 1249, 1253 (Ala.1990). See also McCollough v. Bell, 611 So. 2d 383, 385 (Ala.Civ.App.1992)(`Any decision, order, or [judgment] of the trial court which puts an end to the proceedings between the parties to a cause in that court is final and may be reviewed on appeal.'). `A final judgment is one that completely adjudicates all matters in controversy between the parties.' Wilson v. Glasheen, 801 So. 2d 848, 849 (Ala.Civ.App.2001)(emphasis added). It is well settled that `"[a]ppellate review in a piecemeal fashion is not favored."' Harper Sales Co. v. Brown, Stagner, Richardson, Inc., 742 So. 2d 190, 192 (Ala.Civ.App.1999)(quoting Brown v. Whitaker Contracting Corp., 681 So. 2d 226, 229 (Ala.Civ.App.1996), overruled on other grounds, Schneider Nat'l Carriers, Inc. v. Tinney, 776 So. 2d 753 (Ala. 2000)). The only exception to the rule of finality is when the trial court directs the entry of a final judgment pursuant to Rule 54(b), Ala. R. Civ. P. See generally Carlisle v. Carlisle, 768 So. 2d 976, 977 (Ala.Civ.App.2000)."
Wilkerson v. Wilkerson, 868 So. 2d 1119, 1121 (Ala.Civ.App.2003).
The trial court did not adjudicate the wife's claim seeking an attorney's fee. However, the failure to adjudicate that claim does not effect the finality of the judgment. See State Bd. of Educ. v. Waldrop, *1054 840 So. 2d 893, 899 (Ala.2002) ("[A] decision on the merits disposing of all claims is a final decision from which an appeal must be timely taken, whether a request for attorney fees remains for adjudication."). Nevertheless, the trial court did not dispose of the husband's claim seeking "permanent support and maintenance."
Furthermore, the trial court did not certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P. Even if the trial court had certified the judgment as final, such a certification would have been inappropriate in view of this court's disfavoring the adjudication of divorce cases in piecemeal fashion. See, e.g., Flores v. Flores, 978 So. 2d 791 (Ala.Civ.App.2007) (concluding that Rule 54(b) certification was inappropriate because a wife's claim for a modification of periodic alimony was so intertwined with the husband's counterclaim seeking, among other things, a termination of his child-support obligation); and Blythe v. Blythe, 976 So. 2d 1018, 1020 n. 3 (Ala. Civ.App.2007) (concluding that a judgment certified pursuant to Rule 54(b) would have been inappropriate when the judgment failed to actually divide the marital property and failed to adjudicate a party's claim seeking alimony).
Because the trial court failed to adjudicate the husband's claim seeking "permanent support and maintenance," we conclude that the judgment is nonfinal. Accordingly, we must dismiss the wife's appeal. See Novak, supra.
APPEAL DISMISSED.
THOMPSON, P.J., and THOMAS and MOORE, JJ., concur.
PITTMAN, J., concurs in the result, without writing. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599219/ | 3 So.3d 400 (2009)
Gary Sheldon WHITE, Appellant,
v.
Linda J. WHITE, Appellee.
No. 2D07-5013.
District Court of Appeal of Florida, Second District.
February 6, 2009.
*401 Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
Kathy C. George of Law Offices of Boake & George, St. Petersburg, for Appellee.
CASANUEVA, Judge.
Gary Sheldon White appeals an order denying his petition to reduce or eliminate his permanent periodic alimony obligation to his former wife, Linda J. White. Because the trial court improperly relied upon a defense not pleaded or otherwise raised before trial in denying the petition, we reverse.
In the petition, Mr. White sought to modify his permanent periodic alimony obligation to his former wife on two bases. First, Mr. White claimed that the parties' relative financial circumstances had changed.[1] Second, Mr. White asserted that Ms. White had established a supportive relationship with another man with whom she resided.[2]
*402 After a lengthy hearing, the trial court made the following pertinent findings:
B. The Former Husband has demonstrated that the Former Wife has a "supportive relationship" as envisioned by § 61.14, Florida Statutes. The supportive relationship involves living with a certain "Charles Murphy," and the supportive relationship would lead the Court to conclude that alimony should be modified on a downward basis or terminated.
C. The Former Husband, however, comes before the Court with unclean hands. The Former Husband has not done equity and therefore cannot come into a Court of equity requesting that his alimony be decreased or eliminated. The Former Husband has not made a good-faith effort to pay the alimony as previously ordered and has substantial arrearages. Moreover, the Former Husband has not made any meaningful effort to provide health insurance for the Former Wife as provided in the Final Judgment of Dissolution of Marriage.
D. Because the Former Husband has unclean hands, the Former Husband is not entitled to relief and his Supplemental Petition for Modification will therefore be denied.
On appeal, Mr. White argues that the trial court erred in applying the "unclean hands" doctrine because it is an affirmative defense and had not been pleaded.
There is no mention of "unclean hands" in any of the pleadings, motions, or pretrial statements in the record before this court. The pretrial conference order also contains no mention of this defense. The first time the defense appears to have been raised was during trial, when Ms. White sought to introduce certain documents into evidence to support the defense. Mr. White objected on the basis that "[c]lean hands is an affirmative defense [and t]here are no affirmative defenses in this case." The trial judge overruled the objection on Ms. White's assurances that there was case law "to support being able to raise the question of Clean Hands even though [she had] not pled it as an affirmative defense."
Florida Rule of Civil Procedure 1.140(h)(1)[3] provides:
A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).
Because Ms. White did not plead this defense or raise it in a pretrial motion, she waived it pursuant to rule 1.140. Moreover, because Mr. White timely objected once Ms. White announced her intention to raise "unclean hands" as a defense, it was not tried by consent. See Paul Gottlieb & Co. v. Alps S. Corp., 985 So.2d 1, 5 (Fla. 2d DCA 2007) (holding that it is an exception to the pleading requirement when there is no objection to evidence introduced solely to prove an unpleaded issue). "It is axiomatic that a party may not be held liable on an issue that was neither pleaded nor tried by consent." Aills v. Boemi, 990 So.2d 540, 548 (Fla. 2d DCA 2008). Therefore, the trial court abused its discretion in *403 relying upon the "unclean hands" defense and denying the petition. See Buxton v. Buxton, 963 So.2d 950, 953 (Fla. 2d DCA 2007) ("If the trial court determines that a `supportive relationship' exists, we review the trial court's decision to reduce or terminate alimony for abuse of discretion.").
Ms. White did not challenge the trial court's finding in paragraph B of the order on appeal that she is in a supportive relationship that supports reducing or eliminating alimony under section 61.14(b)(1). Regardless, after applying the appropriate standard of review to any questions of fact and law, we believe the finding to be correct. See Buxton, 963 So.2d at 953 (holding that a decision under section 61.14(b) "presents a mixed question of law and fact, which calls for a mixed standard of review").
Accordingly, we reverse the denial of Mr. White's petition. On remand, the trial court shall enter an order consistent with its findings in paragraph B of the order on appeal by determining whether Mr. White's permanent periodic alimony obligation should be reduced or eliminated entirely.
Ms. White's Motion for Attorney's Fees
Ms. White seeks an award of appellate attorney's fees. Florida Rule of Appellate Procedure 9.400(b) requires a party to file a motion stating "the grounds on which" an award is sought. The "grounds on which" an award is sought requires a party to identify a source of entitlement to an award of fees. "Virtually all claims for attorney's fees rest on contract or statutory bases." Rados v. Rados, 791 So.2d 1130, 1132 (Fla. 2d DCA 2001) (citing Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 406 (Fla.1999)).
Here, the motion cites neither a statutory nor a contractual basis for entitlement to an attorney's fee award. Instead, it claims an entitlement based on Rados. The Rados opinion is not a basis for entitlement to attorney's fees. Therefore, Ms. White's motion for appellate attorney's fees and costs is denied.
Reversed and remanded.
WHATLEY and WALLACE, JJ., Concur.
NOTES
[1] Section 61.14(1)(a), Florida Statutes (2006), states that "[if] the circumstances or the financial ability of either party changes . . . either party may apply to the circuit court . . . for an order decreasing or increasing the amount of . . . alimony[.]"
[2] Section 61.14(b)(1) provides that "[t]he court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides."
[3] Florida Family Law Rule 12.140 provides that "[d]efenses shall be governed by Florida Rule of Civil Procedure 1.140." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/463833/ | 782 F.2d 971
228 U.S.P.Q. 450
In re Joseph W. NEWMAN.
Misc. No. 89.
United States Court of Appeals,Federal Circuit.
Jan. 13, 1986.
John P. Flannery, II, Washington, D.C., for petitioner.
Joseph F. Nakamura, Sol., Fred E. McKelvey, Deputy Sol., and Thomas E. Lynch, Associate Sol., Office of the Sol., Arlington, Va., for respondent.
Before MARKEY, Chief Judge, and NEWMAN and BISSELL, Circuit Judges.
ORDER
NEWMAN, Circuit Judge:
1
Joseph W. Newman petitions for writ of mandamus ordering the United States District Court for the District of Columbia to vacate or modify its orders dated October 2 and 9, 1985, which authorized the United States Patent and Trademark Office (PTO), through the National Bureau of Standards (NBS), to conduct tests of the device for which Newman seeks a United States patent. We grant the petition in part.
Background
2
Petitioner Newman applied for a patent on an invention that he entitled "Energy Generation System Having Higher Energy Output Than Input". The PTO rejected the application, on the basis that the device was a "perpetual motion machine" and thus "impossible", (i.e., not useful within the meaning of 35 U.S.C. Sec. 101). Petitioner denies this label, and asserts that his device works as described in his patent application.
3
A civil action was brought in the district court under 35 U.S.C. Sec. 145. In view of the conflicting representations before it, the district court appointed a Special Master, former Commissioner of Patents William E. Schuyler, Jr., who concluded that the claimed invention met all of the requirements for patentability. The PTO criticized the Master's report, the court held some of the Master's findings to be clearly erroneous, and at the PTO's request the district court remanded petitioner's patent application for a new examination. The patent examiner then rejected the application under 35 U.S.C. Secs. 101, 102, 103, and 112, and ordered that a working model be delivered within 30 days to the NBS for testing.
4
Meanwhile petitioner had sought relief from this remand by writ of mandamus, which this court denied on May 29, 1985 on the basis that interlocutory review was unnecessary because the asserted errors were of a nature that could be corrected on appeal from the district court's final decision. In re Newman, 763 F.2d 407, 226 U.S.P.Q. (BNA) 97 (Fed.Cir.1985).
5
On June 18, 1985, at the suggestion of the district court, the Commissioner served on petitioner a request under Rule 34 of the Federal Rules of Civil Procedure. Rule 34 provides in relevant part:Any party may serve on any other party a request ... to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 26(b) and which are in the possession, custody or control of the party upon whom the request is served....
6
* * *
7
* * *
8
The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts.
9
The Commissioner's Rule 34 request required that petitioner promptly transport working models of his device to the Bureau of Standards in Maryland; that the device be relinquished to the NBS for at least seven months; that the device be delivered before the tests and test methods were designed; that only the PTO would be advised in advance of the testing program and who would conduct the tests; that the inventor and his counsel could observe but no expert could be present on petitioner's behalf; that the PTO would control disposition of the working models after the tests, contemplated to be returned to petitioner four days after the trial date; and that the NBS on reasonable notice to petitioner could dismantle or destroy the device.
10
Upon petitioner's objections, the district court modified the PTO's Rule 34 request in that the NBS was ordered to complete its evaluation and make its report in thirty days rather than seven months; and Newman, his counsel, and one other person would be allowed to observe "any final tests". The NBS was "expressly permitted to render any or all of the devices inoperable in part or in whole if necessary to make its determinations aforesaid", and the requirement that prior notice of dismantling or destruction be given to petitioner was not included in the court's order.
Analysis
11
Because this court, and only this court, has jurisdiction over any appeal from a final decision in this case, it has jurisdiction to hear and decide this petition. In re Mark Industries, 751 F.2d 1219, 224 U.S.P.Q. (BNA) 521 (Fed.Cir.1984); Mississippi Chemical Corp. v. Swift Agricultural Chemicals Corp., 717 F.2d 1374, 219 U.S.P.Q. (BNA) 577 (Fed.Cir.1983).
12
Petitioner asserts that the test conditions authorized by the district court are unreasonable, and thus that the order exceeds the district court's discretionary authority. The petitioner alleges irreparable harm if this court does not intervene. We conclude that a prima facie case of irreparable harm has been made by the district court's authorization that the NBS may destroy petitioner's machine, and is supported by other irregularities in the proposed procedures. Mandamus is appropriate because no subsequent appeal will necessarily redress any damage. See 9 J. Moore, B. Ward & J. Lucas, Moore's Federal Practice p 110.28 (2d ed. 1985). See also Schlagenhauf v. Holder, 379 U.S. 104, 110, 85 S. Ct. 234, 238, 13 L. Ed. 2d 152 (1964) (review by mandamus is appropriate in view of the "undecided question" of the appellate court's power in these "unusual circumstances").
13
Petitioner states that during the course of patent prosecution he had offered the machine to the PTO for testing. The examiner refused these offers, and the deputy solicitor refused to view the machine when he was in Mississippi for depositions in this action. Petitioner asserts that this history shows his past readiness and willingness to produce his machine for testing, and that the PTO having refused these opportunities can not now insist on such tests. Petitioner also states his willingness now to produce the machine, under reasonable conditions.
14
We have recently held that the PTO is entitled to reject an application for insufficient proof when a device by its nature occasions reasonable skepticism as to its operativeness under Sec. 101. Fregeau v. Mossinghoff, 776 F.2d 1034, 227 U.S.P.Q. (BNA) 848 (Fed.Cir.1985). See also In re Langar, 503 F.2d 1380, 183 U.S.P.Q. (BNA) 288 (CCPA 1974). We discern no abuse of discretion in the holding of the district court that additional tests of petitioner's device should be conducted.
15
When petitioner had objected to the "extraordinary burden" imposed by the test conditions authorized by the district court, the court responded that this "unprecedented" device "needs precedented [sic: unprecedented?] procedural adaptations of the Federal Rules". However, the Federal Rules of Civil Procedure are more than guidelines for orderly litigation; they ensure that the proceedings are conducted fairly, with the objective of uncovering the truth, and in accordance with fundamental principles of due process.
16
We are not told why routine Rule 34 safeguards must in this case be denied, nor why it is essential that the NBS have authority to destroy the machine in order to determine if it operates as described. The record before us contains no allegation that the machine does not correspond with the specification, and we do not here deal with any basis for rejection other than the asserted lack of utility under Sec. 101.
17
The PTO represents in its brief that the NBS will not dismantle or destroy the device until it has first determined that the device works in accordance with the specification. From this, we assume that the purpose of the destruction would be to determine not if, but how, it works. The PTO is not a guarantor of scientific theory and, although the record shows that the laws of thermodynamics were debated before the district court, it is not the province of the PTO to ascertain the scientific explanation. See In re Anfhauser, 399 F.2d 275, 283, 158 U.S.P.Q. (BNA) 351, 357 (CCPA 1968) (applicant "is not legally required to comprehend the scientific principles on which the practical effectiveness of his invention rests.") Thus, although we encourage petitioner to cooperate in the testing program, at the risk of adverse inferences as mentioned by the district court, we agree with petitioner that his device should not be dismantled or destroyed without his consent.
18
Rule 34 discovery is a common procedure, as is inter partes testing in general, arising in actions where there is a need to conduct inspections and tests for evidentiary purposes. Such tests routinely are made in the presence of the opposing party, and the test data are routinely provided to all parties. Wagoner v. Barger, 463 F.2d 1377, 1382, 175 U.S.P.Q. (BNA) 85, 88 (CCPA 1972) ("the results of tests made by one party ... without notice to, and in the absence of, the other party ... [are] for that reason alone entitled to little or no weight"); Congoleum Industries, Inc. v. Armstrong Cork Co., 319 F. Supp. 714, 716, 168 U.S.P.Q. (BNA) 263, 264 (E.D.Pa.1970) ("the established doctrine that evidence of experiments conducted by an interested party, in the absence of his adversary, is always received with suspicion and given only negligible probative value").
19
The objectivity of the tester is a fundamental rule not only of evidence but of conscience. The Bureau of Standards enters this arena with the aura of a national laboratory of scientific distinction, untainted by partisan obligation. Yet the record relates that a spokesman of the NBS criticized to the press the machine that the NBS had not yet tested. Petitioner advises that there was submitted by the PTO to the district court the affidavit of an employee of the NBS, criticizing the machine that he had neither seen nor tested. These events support petitioner's argument that the safeguards of inter partes representation should not be denied.
20
Petitioner also complains that the PTO has not undertaken, or been ordered, to be bound by the findings of the NBS. However, it is not the PTO but the district court that must decide this case under 35 U.S.C. Sec. 145. The court has not abused its discretion by declining to decide in advance how the test results will be treated.
21
We conclude that the district court exceeded its discretionary authority in departing from standard procedures and safeguards implementing Rule 34, to the extent that fundamental fairness is absent from the tests as authorized. The court presented no reason for barring petitioner from observing all the tests on his device, or from knowing in advance what tests are to be conducted. Such procedures are highly irregular, and taint the evidentiary value of the test results. We have been directed to no instance where they have been condoned.
Therefore, IT IS ORDERED THAT:
22
The stay of the district court's order of October 2 as modified on October 9 is lifted, and compliance therewith is ordered, subject to the following modifications:
23
(a) Petitioner is to produce his device for testing at the NBS within fourteen days after notification of this order.
24
(b) Prior to said production date, the PTO shall request the NBS to design a testing program that tests the utility set forth in the specification but does not require dismantling or destruction of the device; the NBS shall notify the parties of that program before testing begins.
25
(c) Both parties shall have the right to observe all tests.
26
(d) Upon issuance of the NBS' test report, copies of which shall be supplied to both parties, petitioner's device shall forthwith be returned to petitioner.
27
In all other respects the district court's order is affirmed. Attention is directed to the requirement that the tests be completed and the report issued within 30 days after delivery of the device. | 01-03-2023 | 08-23-2011 |
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