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https://www.courtlistener.com/api/rest/v3/opinions/1599153/ | 729 So. 2d 1249 (1999)
Robert E. MOODY
v.
MISSISSIPPI DEPARTMENT OF PUBLIC SAFETY/HIGHWAY PATROL.
No. 98-CC-00233-SCT.
Supreme Court of Mississippi.
January 14, 1999.
Rehearing Denied March 25, 1999.
*1250 John Booth Farese, Ashland, Attorney for Appellant.
Office of the Attorney General by Charles S. Head, Rickey T. Moore, James W. Younger, Jr., Attorneys for Appellee.
EN BANC.
PRATHER, Chief Justice, for the Court:
I. INTRODUCTION
¶ 1. This case arises from the appellant's challenge to the statutory limitation on retirement benefits for Mississippi Highway Patrol employees. The hearing officer ruled the statute unconstitutional, and the Employee Appeals Board affirmed. The circuit court overruled the Employee Appeals Board, and held that the matter is a non-grievable issue under the Administrative Rules of the Employee Appeals Board; that the Employee Appeals Board is without authority to declare a statute unconstitutional; and, that the statute in question is constitutional. This Court affirms the judgment of the circuit judge.
II. STATEMENT OF THE CASE
¶ 2. On May 13, 1996, Robert E. Moody of the Mississippi Highway Patrol (hereinafter MHP) filed a grievance against the Mississippi Department of Public Safety (hereinafter DPS). Moody contended that the 85% statutory maximum on retirement benefits enumerated in Miss.Code Ann. § 25-13-11(e)[1] caused him to lose accumulated leave time. The hearing officer ruled Miss Code Ann. § 25-13-11(e) unconstitutional. Specifically, the hearing officer found that this statute violated Moody's right to substantive due process, because its application deprived Moody of 99.44 days of accumulated leave. The hearing officer ruled that Moody was entitled to either compensation for the earned, unused personal leave or to have it credited to him through the state retirement system.
*1251 ¶ 3. DPS appealed to the Mississippi Employee Appeals Board (hereinafter EAB). On May 12, 1997, the EAB affirmed the decision of the hearing officer.
¶ 4. Thereafter, on May 23, 1997, the Circuit Court of the First Judicial District of Hinds County granted DPS's petition for writ of certiorari. On January 7, 1998, the circuit court reversed the EAB's ruling. Specifically, the circuit court held:
This Court agrees with DPS's arguments that 1) the limits placed by statute on retirement benefits is a non-grievable issue in accordance with the EAB Administrative Rules, 2) that Miss.Code Ann. § 25-13-11(e) did not violate Moody's substantive due process rights, and 3) that the power to declare a statute unconstitutional lies with the judiciary, not an administrative agency. Thus, the decision of the EAB was unsupported by substantial evidence and beyond the scope of its powers and must, therefore, be reversed.
From that judgment, Moody appeals, and raises the following issues for consideration by this Court:
A. Whether the EAB correctly denied DPS's motion to dismiss and correctly found that Moody's appeal regarding retirement benefits and payment for unused compensated leave were grievable issues?
B. Whether the EAB is a lower tribunal that may rule on the constitutionality of a state statute in its application to Moody, since the test of the constitutionality of a statute, in its natural progression, is determined in the judicial system?
C. Whether, in its application, Miss.Code Ann. § 25-13-11(e) violated Moody's substantive due process rights, and the EAB was correct in its application of law to the facts and circumstances of this case?
D. Whether the circuit court of Hinds County erred in reversing the EAB decision absent a showing that the EAB decision was clearly erroneous, not based on substantial evidence, was arbitrary and capricious, beyond the DPS' scope of powers, or violated Moody's constitutional rights?
III. LEGAL ANALYSIS
A. Whether the EAB correctly denied the DPS's motion to dismiss and correctly found that Moody's appeal regarding retirement benefits and payment for unused compensated leave were grievable issues?
¶ 5. Moody first argues that the trial judge erred in finding that the calculation of retirement benefits is a non-grievable issue. In support of this argument, Moody cites Miss. Code Ann. § 25-9-129, which established the EAB, and provides:
The State Personnel Board shall appoint an employee appeals board, which shall consist of three (3) hearing officers, for the purpose of holding hearings, compiling evidence and rendering decisions on appeals of state agency action adversely affecting the employment status or compensation of any employee in the state service....
¶ 6. Moody does not even refer to the Administrative Rules of the EAB. In so doing, Moody fails to acknowledge that the Legislature has vested the State Personnel Board [hereinafter SPB] with "the authority to promulgate rules and regulations to interpret and enforce ... statutory imperatives" including the imperative contained in Miss.Code Ann. § 25-9-129. See Gill v. Mississippi Dep't of Wildlife Conservation, 574 So. 2d 586, 592 (Miss.1990) (citing Miss. Code Ann. § 25-9-115(c) (Supp.1990), which gives the SPB authority to "[a]dopt and amend policies, rules and regulations establishing and maintaining the State Personnel System").
¶ 7. Thus, the SPB's rules and regulations "`... enjoy legal validity via SPB's appropriate exercise of its statutory authority.'" Phillips v. Mississippi Veterans' Home Purchase Bd., 674 So. 2d 1240, 1242 (Miss.1996) (quoting Gill, 574 So.2d at 592). Moreover, the applicable EAB Administrative Rules, clearly provide that the following (among others) are "non-grievable issues": the "establishment and revision of the compensation plan, and the policies, procedures, rules and *1252 regulations pertaining thereto", and "employee benefits." See EAB Administrative Rules, Appendix B (effective May, 1996). EAB Administrative Rule 2(C) provides that "[n]o person may appeal a non-grievable action."
¶ 8. Thus, Moody "did not have the right to appeal this particular matter to the EAB, [and] it is not necessary to address the merits of [the EAB's] decision." See Phillips, 674 So.2d at 1242. However, even if this Court were to consider the merits of the EAB's decision, Moody's remaining arguments would fail.
B. Whether the EAB is a lower tribunal that may rule on the constitutionality of a state statute in its application to Moody, since the test of the constitutionality of a statute, in its natural progression, is determined in the judicial system?
¶ 9. Moody claims that the trial judge erred by holding that the EAB is without authority to rule on the constitutionality of a statute. This Court has acknowledged that the remedial process for State employees by which an employee may appeal a final decision of the EAB to the Circuit Court is the employee's "exclusive remedy" in cases which fall under the EAB's statutory authority. See Hood v. Mississippi Dep't of Wildlife Conservation, 571 So. 2d 263, 268 (Miss. 1990) (citing Miss.Code Ann. § 25-9-131(3), which provides that this appeals procedure will "replace any existing statutory procedure"). See also Miss.Code Ann. § 25-9-129 (which gives the EAB authority to render "decisions on appeals of state agency action adversely affecting the employment status or compensation of any employee in the state service").
¶ 10. Indeed, the EAB has statutory authority under Miss.Code Ann. § 25-9-131 to ensure that the employee is "afforded all applicable safeguards of procedural due process"; administer oaths; issue subpoenas; and, compel the attendance of witnesses and the production of documents. This Court has acknowledged that the EAB is a "tribunal inferior" for purposes of Miss.Code Ann. § 11-51-95 (which provides for certiorari review by the circuit court). See Mississippi Dep't of Wildlife Conservation v. Browning, 578 So. 2d 667, 668-69 (Miss.1991).
The remedial process provided such employees necessarily vests the employee's department, agency or institution, and ultimately the EAB, with full authority to hear not only the merits vel non of any charge of inefficiency or other good cause, but also any other matter of fact or law the employee may assert affecting his employment.
* * *
The more relaxed administrative appellate process before EAB is quite conducive to a full airing of the employee's constitutional claims. On judicial review the circuit court is specifically charged to consider whether EAB's action abridged "some ... constitutional right of the employee." Miss.Code Ann. § 25-9-132 (Supp.1990).
Hood, 571 So.2d at 268.
¶ 11. That is, the EAB has a "unique administrative charge to blend and pursue pragmatically and at once fact finding, legal interpretation and promotion of legislatively established public policy." Gill, 574 So.2d at 593. However, although the EAB does serve an adjudicative role in interpreting the constitutionality of a State agency's implementation of certain statutes, there is no authority for allowing the EAB to strike down a statute.
¶ 12. "It is a fundamental rule that administrative agencies may exercise only those powers that are granted by statute." Wright v. White, 693 So. 2d 898, 901 (Miss. 1997) (holding that the EAB is without statutory authority to transfer a case to the circuit court). Therefore, any act by the EAB that is not authorized by statute is void. See id. at 902 (citing Farrish Gravel Co. v. Mississippi State Highway Comm'n, 458 So. 2d 1066, 1068 (Miss.1984)).
This Court has further held that "any power sought to be exercised [by an administrative agency] must be found within the four corners of the statute under which the agency proceeds." Miss. Milk Comm'n v. *1253 Winn-Dixie Louisiana, 235 So. 2d 684, 688 (Miss.1970).
Wright, 693 So.2d at 902. There is nothing within the four corners of the statute creating the EAB that allows it to declare a statute unconstitutional. Therefore, the EAB was without authority to do so. See id. Moody's argument to the contrary is without merit.
¶ 13. In addition, although the EAB is not authorized to strike down statutes, the circuit court, on certiorari review, is directed by statute to address constitutional issues. See Miss.Code Ann. § 25-9-132 (Supp.1990). Therefore, even though the matter was non-grievable under the EAB's own rules, and, even though the EAB was without authority to strike down a statute, the circuit court, upon granting certiorari, properly disposed of the case.
C. Whether, in its application, Miss.Code Ann. § 25-13-11(e) violated Moody's substantive due process rights, and the EAB was correct in its application of law to the facts and circumstances of this case?
D. Whether the circuit court of Hinds County erred in reversing the EAB decision absent a showing that the EAB decision was clearly erroneous, not based on substantial evidence, was arbitrary and capricious, beyond the DPS' scope of powers, or violated Moody's constitutional rights?
¶ 14. Moody next argues that the trial judge erred by holding that Miss.Code Ann. § 25-13-11(e) is constitutional. Specifically, Moody argues that he has a vested property right in his accumulated leave, and that the 85% statutory limitation violates his right to substantive due process.
¶ 15. This Court has recently addressed a similar issue in State v. Jones, 726 So. 2d 572 (Miss.1998). In Jones, public school teachers claimed that statutory amendments, which reduced the amount of lump-sum payments for accumulated leave upon retirement, violated their right to substantive due process. This Court held that "the right to lump-sum payment for accumulated leave upon retirement is not guaranteed in the federal or State Constitutions." Jones, 726 So.2d at 574.
¶ 16. In analyzing the teachers' substantive due process claims, the Jones court found as follows:
... [B]ecause this case does not involve a suspect class or a fundamental right, "[u]nder both federal and state due process clauses, it must be shown that the [statute] was rationally or reasonably related to a proper legislative purpose." Wells, 645 So.2d at 893; Mississippi High School Activities Ass'n, Inc. v. Coleman, 631 So. 2d 768, 774 (Miss.1994) ("When no fundamental right is infringed by state action, yet a substantive due process challenge is lodged, the statute (or rule) will be upheld so long as it has a reasonable relation to the State's legitimate purpose.").
* * *
This Court has also recognized the importance of allowing "governmental units to order their fiscal planning." Wells, 645 So.2d at 894 (quoting Jetton v. Jacksonville Electric Authority, 399 So. 2d 396, 399 (Fla.Dist.Ct.App.1981)). "In sum, ... to allocate or conserve State fiscal resources has been held by this Court to be a legitimate legislative goal." Id.
Jones, 726 So.2d at 575-76.
¶ 17. Applying this reasoning, the 85% statutory limitation on retirement benefits in the case sub judice was rationally related to the legitimate legislative purpose of fiscal planning. Certainly, this Court recognizes that the members of the Mississippi Highway Patrol are vital to the service and protection of Mississippi citizens. However, the Legislature is the appropriate entity for balancing the importance of fiscal responsibility against the importance of properly rewarding retired officers for their years of service.
The Legislature is the appropriate branch of the government to deal with this matter because it can conduct hearings to determine the extent of the need, the amount of funds required, and the numerous related factors involved. While the legislature can view the full spectrum of the problem, the courts, *1254 which do not have the means or facilities to adequately study the problem or provide the remedy, can only deal with the problem on a case by case basis.
Mississippi Municipal Ass'n, Inc. v. State, 390 So. 2d 986, 988 (Miss.1980) (citations omitted). For these reasons, the ... judgement of the trial court [declaring the statutory amendments unconstitutional] is reversed and rendered.
Id. at 576.
¶ 18. Given this authority, this Court finds that Moody's right to substantive due process was not violated by Miss.Code Ann. § 25-13-11(e)the 1986 amendment which limited MHP employees' retirement benefits to 85% of their average compensation. See generally Zucker v. United States, 758 F.2d 637, 638 (Fed.Cir.1985) ("It is well settled that potential retirees have no protected property interest in any particular level of retirement benefits as they have no legitimate claim of entitlement to benefits which are subject to lawful change.").
¶ 19. For constitutional purposes, MHP employees "have earned what the Mississippi Legislature dictates they have earned. The Legislature is the entity charged with balancing the many competing philosophies with regard to the expenditure of State funds." See Jones, 726 So.2d at 576. Therefore, Moody's argument to the contrary is without merit, and the trial court's judgment on this issue is affirmed.
V. CONCLUSION
¶ 20. The trial judge properly reversed the decision of the EAB. That is, the trial judge correctly held that: (1) the statutory limitation on MHP retirement benefits is a non-grievable issue, pursuant to the EAB Administrative Rules; (2) the EAB is without authority to declare a statute unconstitutional; and, (3) Miss.Code Ann. § 25-13-11(e) does not violate Moody's substantive due process rights. Accordingly, the judgment of the trial judge is affirmed.
¶ 21. JUDGMENT IS AFFIRMED.
SULLIVAN and PITTMAN, P.JJ., SMITH, MILLS and WALLER, JJ., concur.
McRAE, J., dissents with separate written opinion joined by JAMES L. ROBERTS, Jr., J.
BANKS, J., not participating.
McRAE, Justice, dissenting:
¶ 22. I disagree with the majority's conclusion that Moody did not have a grievable issue under the rules of the Employee Appeals Board with regard to the statutory cap on his retirement benefits and payment for his accumulated leave time. These are two separate benefits for which Moody had contracted with the State of Mississippi. To say that he cannot now appeal the calculation of his retirement benefits deprives him of the opportunity to pursue a remedy for the deprivation of his substantive due process rights and the constitutional prohibition against the impairment of contractual obligations.
¶ 23. A showing that the State has deprived Moody of a protected interest in life, liberty or property is a prerequisite to any claims alleging denial of his rights to due process. Shelton v. City of College Station, 780 F.2d 475, 479 (5th Cir.1986). To have a property interest in a benefit, a person must have more than an abstract need or desire for it; that person must have a legitimate claim of entitlement to it. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed. 2d 548 (1972). In Mississippi, there is no difference between earned sick pay and earned vacation pay; both are earned and neither are compensation in lieu of wages. Lanterman v. Roadway Express, Inc., 608 So. 2d 1340, 1349 (Miss.1992).
¶ 24. Moody's entitlement to payment for accrued leave upon retirement in addition to his retirement benefits was a contractual right that could not be altered by the Legislature without offending the Due Process Clause of the Mississippi Constitution. He had a contractual relationship with the State of Mississippi, which was a property interest pursuant to the Due Process Clause. His reasonable expectation of receiving this contractual obligation is a sufficient allegation of a tangible interest to invoke protection against arbitrary and irrational government *1255 action. See State v. Jones, 726 So. 2d 572 (Miss.1998)(McRae, J., dissenting).
¶ 25. There is no legitimate purpose for denying Moody and other highway patrol officers the right to the full benefits they have earned over the course of their employment by the State. The majority suggests that the 85% cap on retirement benefits imposed by the Legislature in 1986 does not violate due process because it is rationally related to the legitimate purpose of fiscal planning. This assertion rings hollow. Moody went to work for the State Highway Patrol in July, 1963 and worked for twenty-three years without any expectation of a cap on retirement benefits. Surely, the Legislature's fiscal planning abilities cannot be too seriously taxed by figuring the provision of benefits for a finite number of highway patrol officers hired prior to 1986, whose years of service accumulated until that time are easily calculable. Further, payment of officers' accumulated leave time should not have any effect on the Legislature's fiscal planning one way or another. Moody just as easily could have taken several weeks of leave before he retired. His full salary would have been owed him for that time and the State would not have received the benefit of his services in return.
¶ 26. State Highway Patrol officers put their lives on the line for the people of Mississippi every day. To deny those who have served this State bravely for more than thirty years, the full benefits to which they should be entitled on the grounds of the Legislature's need for fiscal planning is a travesty. There simply is no legitimate basis for denying Moody and other similarly situated Highway Patrol officers the full extent of benefits they have earned during their years of service to our State. Once again, just as was done to the teachers in Jones, the majority has allowed the Legislature to ignore the legitimate expectations of those who serve the State and to renege on the State's contractual agreements. Accordingly, I dissent.
JAMES L. ROBERTS, Jr., J., joins this opinion.
NOTES
[1] Miss.Code Ann. § 25-13-11 deals with MHP retirement, and provides, in pertinent part, that
[t]he annual amount of the retirement allowance shall consist of:
(a) A member's annuity, which shall be the actuarial equivalent of the accumulated contributions of the member at the time of retirement, computed according to the actuarial table in use by the system.
(b) An employer's annuity which, together with the member's annuity provided above, shall be equal to two and one-half percent (2-½ %) of the average compensation, based on the four (4) highest consecutive years, for each year of membership service.
(c) A prior service annuity equal to two and one-half percent (2-½ %) of the average compensation, based on the four (4) highest consecutive years, for each year of prior service for which the member is allowed credit.
* * *
(e) Upon retiring from service, a member shall be eligible to obtain retirement benefits, as computed above, for life, except that the aggregate amount of the employer's annuity and prior service annuity above described shall not exceed more than eighty-five percent (85%) of the average compensation regardless of the years of service. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599185/ | 729 So. 2d 90 (1999)
Lydia DREW
v.
John William MARTELLO, Julie A. Aucoin, American National Property & Casualty Insurance Co. & Zurich Ins. Co.
No. 98-CA-1141, 98-CA-1142.
Court of Appeal of Louisiana, Fifth Circuit.
February 23, 1999.
*91 Clifford E. Cardone, Ivan A. Orihuela, New Orleans, LA, for Plaintiffs-Appellants.
John I. Hulse, IV, New Orleans, LA, Steven B. Witman, Metairie, LA, Gary A. Bezet, Baton Rouge, LA, Albert C. Miranda, Metairie, Harriet R. Campbell Young, J. Elliott Baker, Asst. Atty. Gen., New Orleans, Julie P. Silbert, New Orleans, for Defendants-Appellees.
Panel composed of Judges EDWARD A. DUFRESNE, Jr., SOL GOTHARD and THOMAS F. DALEY.
DUFRESNE, Judge.
This is an appeal by Lydia Drew, plaintiff-appellant, from a summary judgment dismissing Zurich Insurance Co., her employer's automobile liability insurer, on grounds that the policy at issue excluded uninsured motorist coverage. For the following reasons, we affirm that judgment.
The underlying facts are straightforward. On November 9, 1993, Drew was a regional manager for Knoll Pharmaceuticals, a subsidiary of BASF Corporation, and had flown into New Orleans for a business convention. Although she had a company car regularly assigned to her as part of her compensation package, that car was apparently at the airport in her home state. While walking along a service road of Interstate-10 from her hotel to a restaurant, she was injured when struck by an automobile driven by John Martello and owned by Julie Aucoin.
Almost one year later, Drew filed suit against Martello and Aucoin, and their insurers, the hotel, Jefferson Parish, the Louisiana Department of Transportation and Development, and Zurich, the automobile liability insurer of BASF and consequently of the company car assigned to Drew. Martello and Aucoin were alleged in the petition to be Louisiana residents, with service requested at Jefferson Parish addresses.
On April 13, 1998, over three years after the petition was filed, Zurich urged a motion for summary judgment asserting that the policy at issue did not provide uninsured motorist coverage. In support of this motion it filed a copy of the policy and the affidavit *92 of Gary W. Slumpff, the Director of Insurance for BASF and its subsidiary Knoll. In that affidavit Slumpff recites that, based on personal knowledge, BASF has in effect a nationwide contract of insurance negotiated by him with Zurich which covers the automobile at issue here. He further states that the corporation has in effect workmen's compensation insurance to cover all injuries to its employees while in the course and scope of their employment. It therefore does not carry uninsured motorist coverage for them in any states where it may reject entirely such coverage, and in states where some UM coverage is required it carries only the minimum amount mandated.
To accomplish his company's policy as to UM coverage, Slumpff negotiated and signed a policy which contained a section dealing with such coverage. That section begins with a four page summary setting forth the UM coverages under the policy for each state, and the summary is followed by an individual UM form for each state. At the end of the summary, the following appears:
The completion of this form precludes the necessity of showing the policy number, agent and Named Insured on the listed forms attached to this policy. By signing and dating this form in the spaces provided below, you agree that you have read and understand each state form and that the selections or rejections marked on the state forms have been accepted by you without signing and dating each form.
The above form is dated and signed by Slumpff.
The attached individual form for Louisiana states:
Your policy provides "bodily injury" uninsured motorists coverage, which includes "bodily injury" underinsured motorists coverage, equal to your "bodily injury" liability limits. You have the option of rejecting "bodily injury" uninsured motorists coverage entirely or selecting "bodily injury" uninsured motorists coverage in limits less than your "bodily injury" liability limits.
The form then provides a check-off box for rejection of uninsured coverage, including underinsured coverage, followed by boxes for selection of lower limits. The first box, indicating rejection of UM coverage, is checked off.
Based on the above affidavit and copy of the policy, the trial judge granted summary judgment dismissing Zurich from the suit. On plaintiffs motion, the trial judge found that there was no just reason to delay the appeal of this partial summary judgment and designated the matter as a final, immediately appealable judgment pursuant to La Code Civ. Pro., Art.1915.
Plaintiffs first assignment of error is that the granting of the summary judgment was premature. In several other assignments she also urges that there were essential factual matters either in dispute or not established by the defendant, thus precluding summary judgment. Because many of these issues overlap, we treat them together.
Article 966 of our Code of Civil Procedure provides the manner in which motions for summary judgment are to be urged and supported. The sections of that article pertinent here are as follows:
B. The motion for summary judgment and supporting affidavits shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.
C.(1) After adequate discovery or after the case is set for trial, a motion which shows that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law shall be granted.
Here, plaintiff's overall argument is that she was not given time to discover facts which might have shown genuine disputes as to the insurance policy and affidavit, particularly in regard to: 1) Slumpff's credibility; 2) whether the signature on the UM rejection forms was authentic; and 3) whether he was authorized by BASF to finalize the policy. We reject these arguments.
*93 Trial judges are given wide discretion in setting motions, including motions for summary judgment, and their decisions in such matters will be set aside by appellate courts only when there has been an abuse of that discretion to the prejudice of a party, Kelly v. Hanover Insurance Co., 98-506 (La.App. 5th Cir., 11/25/98), 722 So. 2d 1133. Here plaintiff had over three years between filing of suit and defendant's motion for summary judgment to conduct discovery on these issues, and apparently failed to do so. Moreover, there is nothing to suggest that had plaintiff been given additional time she would have discovered defects in the affidavit. In these circumstances, we find no abuse of discretion in the trial judge ruling on the motion when she did.
Further, plaintiffs basic argument about the affidavit is that the information in it should not have been taken as correct without further inquiry by the trial judge. To accept that position would be, in effect, to negate the clear wording of Art. 966, which provides that affidavits are competent evidence in support of summary judgments. This we decline to do. The sworn affidavit sets forth that Slumpff is the Insurance Director for BASF, that he negotiated and signed the attached policy which is at issue in this suit, and gives the reasons upon which the company bases its decision to reject UM coverage wherever possible. The document is thus sufficient to establish that the policy submitted is the authentic contract of insurance at issue. Plaintiffs next assertion is that the UM selection form was defective because it does not contain a separate check-off block or other space in which the insured could indicate its acceptance of coverage equal to the policy limits, and thus did not fully and clearly explain the options open to the insured under Louisiana UM insurance law. This argument was rejected in Daigle v. Authement, 96-1662 (La.4/8/97), 691 So. 2d 1213. There the court noted that the legal requirement is that the insurer inform the insured of the options available and give it an opportunity to make an informed choice of options. However, because UM coverage is automatically provided up to the bodily limits of the policy, there is nothing for the insured to select to receive this coverage. It is only when an insured wishes to reject UM coverage or select lower limits that it is required to take action. Thus, so long as the form clearly sets forth the law as to such coverage, it need only permit a meaningful selection of no coverage or lower limits.
In the present case, the form stated that the policy provided the statutorily mandated UM coverage equal to bodily injury limits. It went on to inform the insured that it had the option of rejecting such coverage entirely or selecting UM coverage at lower limits. It then provided check-off blocks for these latter options. This form clearly set forth the law as to UM coverage and gave the insured meaningful choices as to its options. In these circumstances we conclude that the waiver of UM coverage was valid. We also not here that our determination that the UM waiver was valid renders moot Zurich's alternative argument that plaintiff was not an insured under the terms of the policy even if UM coverage existed.
Plaintiffs final argument is that because she is a resident of another state and the policy was issued in yet a third state, that a choice of law inquiry should have been conducted to determine which state's UM law applied. Article 14 of the Louisiana Civil Code provides:
Unless otherwise provided by the laws of this state, cases having contacts with other states are governed by the law selected in accordance with the provisions of Book IV of this Code [Arts. 3515-3549].
The Louisiana UM law specifically provides that it is applicable to "any accident which occurs in this state and involves a resident of this state," La.R.S.22:1406(D)(1)(a)(iii). Here, plaintiff alleges in her petition that the driver and owner of the car which struck her are both Louisiana residents and has never shown or asserted otherwise. In this circumstance, Louisiana law was properly applied.
For the foregoing reasons, the summary judgment in favor of Zurich Insurance Co. is hereby affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599188/ | 3 So. 3d 835 (2008)
Bob RILEY et al.
v.
Luther S. PATE IV.
1071003.
Supreme Court of Alabama.
July 3, 2008.
Rehearing Denied August 15, 2008.
*836 Troy King, atty. gen., and Corey L. Maze, asst. atty. gen., for appellants.
William N. Slaughter, A. Lee Martin, Kirk D. Smith, and James W. Porter III of Haskell Slaughter Young & Rediker, LLC, Birmingham; and Thomas T. Gallion III and Jaime A. Johnston of Haskell Slaughter Young & Gallion, LLC, Montgomery, for appellee.
*837 WOODALL, Justice.
Governor Bob Riley, State Treasurer Kay Ivey, Finance Director James Allen Main, and Comptroller Robert L. Childree (hereinafter referred to collectively as "the officials") appeal from a preliminary injunction entered against them in an action filed by Luther S. Pate IV. The officials argue, in pertinent part, that Pate does not have standing to maintain the action. We agree. Consequently, we vacate the preliminary injunction, dismiss the action, and dismiss this appeal.
I. Factual Background
This dispute arose following this Court's decision in Exxon Mobil Corp. v. Alabama Department of Conservation & Natural Resources, 986 So. 2d 1093 (Ala.2007). That decision affirmed a judgment entered against Exxon Mobil ("the company") insofar as it awarded certain compensatory damages for the underpayment of oil and gas royalties owed to the State of Alabama by the company under offshore leases. On remand, the Montgomery Circuit Court entered a final judgment in the amount of $121,511,231. Of that amount, $58,174,033 were compensatory damages for the underpayment of oil and gas royalties. The remaining $63,337,198 represented 12% interest due under § 9-17-33, Ala.Code 1975, and § 8-8-10, Ala.Code 1975. The company paid the judgment, and the officials were responsible for allocating the proceeds to the appropriate State funds.
At the center of this dispute is Amendment No. 450 to the Alabama Constitution of 1901, which established the Alabama Trust Fund ("the Trust Fund").[1] The Trust Fund receives and manages 99% of the oil and gas capital payments derived from the State's offshore leases for the production of oil, gas, or other hydrocarbons. The remaining 1% is paid to the Lands Division of the Department of Conservation. Once the oil and gas capital payments are deposited into the Trust Fund, the board of trustees of the Trust Fund is responsible for investing the oil and gas capital payments for the purpose of "produc[ing] the greatest trust income over the term of such investments while preserving the trust capital." Amendment No. 450, § 5(b). Ten percent of the trust income must be reinvested in the Trust Fund. Amendment No. 450, § 4(c). The remaining income, which includes all interest and dividends, as well as up to 75% of capital gains, is paid directly into the general fund and, subject to two conditions, is "subject to appropriation and withdrawal by the legislature." Amendment No. 450, § 5(a). In any year in which the income of the Trust Fund exceeds $60 million, 10% of the income must be distributed to the Municipal Government Capital Improvement Fund and 10% must be distributed to the County Government Capital Improvement Fund. See § 219.04, Ala. Const.1901 (formerly Amend. No. 666, Ala. Const. 1901). Also, 10% of each year's trust income, not to exceed $15 million, must be distributed to the Alabama Forever Wild Land Trust. See § 219.07, Ala. Const. 1901 (formerly Amend. No. 543). The current balance of the Trust Fund is approximately $3 billion.
Nine trustees serve on the board of trustees of the Trust Fund. Those trustees include the governor, who serves as chairman; the finance director, who serves as vice chairman; and the state treasurer, who serves as secretary. Three other trustees are appointed by the governor; two others by the lieutenant governor; and another by the speaker of the house of *838 representatives. See Amendment No. 450, § 3(a)-(f).
After the company paid the amount of the judgment, Finance Director Main requested an opinion from the attorney general concerning the proper allocation of the proceeds between the general fund and the Trust Fund. Consistent with a written opinion of the attorney general, the officials deposited the compensatory damages for the underpayment of oil and gas royalties, less attorney fees and costs, into the Trust Fund. Also consistent with that opinion, they deposited the interest received into the general fund.
Pate, an Alabama citizen and taxpayer, filed a "Complaint for Declaratory Judgment and Injunctive Relief and Petition for Writ of Mandamus" in the Montgomery Circuit Court, challenging the deposit of the interest into the general fund. He requested declaratory relief, mandamus relief, and preliminary and permanent injunctive relief that would require the officials to move the interest from the general fund to the Trust Fund. Pate filed a motion for a preliminary injunction, and the officials responded to the motion. Also, the officials filed a motion to dismiss. In both their response and their motion, the officials raised the issue of Pate's standing to bring the action.
On April 10, 2008, the trial court held a hearing on Pate's motion for a preliminary injunction. Pate presented no evidence at the hearing. On April 15, without addressing the issue of Pate's standing, the trial court granted the requested preliminary injunctive relief and ordered the officials "to immediately transfer into the ... Trust Fund all monies received as part of the Exxon final judgment, less appropriate legal fees, that have not been heretofore paid into such trust fund." The officials timely appealed to this Court. See Rule 4(a)(1)(A), Ala. R.App. P.
II. Discussion
"When a party without standing purports to commence an action, the trial court acquires no subject-matter jurisdiction." State v. Property at 2018 Rainbow Drive, 740 So. 2d 1025, 1028 (Ala.1999). Action taken by a trial court lacking subject-matter jurisdiction is void. 740 So.2d at 1029. Of course, "a void order or judgment will not support an appeal." Gallagher Bassett Servs., Inc. v. Phillips, 991 So. 2d 697, 701 (Ala.2008).
"[S]tanding turns on whether the party has suffered an actual injury and whether that injury is to a legally protected right." Carey v. Howard, 950 So. 2d 1131, 1135 (Ala.2006). A "`"mere `interest in a problem[,]' no matter how longstanding the interest and no matter how qualified the [plaintiff] is in evaluating the problem, is not sufficient by itself to render the [plaintiff] `adversely affected' or `aggrieved' so as to establish standing."'" Ex parte Richardson, 957 So. 2d 1119, 1125 (Ala.2006) (quoting Town of Cedar Bluff v. Citizens Caring for Children, 904 So. 2d 1253, 1260 (Ala.2004) (See, J., concurring specially)). Instead, an "actual or imminent, particularized, concrete, and palpable injury ... is required for a showing of standing." Town of Cedar Bluff, 904 So.2d at 1261 (See, J., concurring specially).
"`The right of a taxpayer to challenge[, either as unconstitutional or as not conforming to statute,] the unlawful disbursement of state funds ... is unquestioned.'" Hunt v. Windom, 604 So. 2d 395, 396 (Ala.1992) (quoting Zeigler v. Baker, 344 So. 2d 761, 764 (Ala.1977)). However, recent decisions have emphasized that "`it is the liability to replenish public funds that gives a taxpayer standing to sue.'" Jordan v. Siegelman, 949 So. 2d 887, 891 (Ala.2006) (quoting Broxton v. Siegelman, 861 So. 2d 376, 385 (Ala.2003)).
*839 The Trust Fund is, insofar as its purposes are concerned, no different than a charitable trust. See § 19-3B-405(a), Ala.Code 1975 ("A charitable trust may be created for the relief of poverty, the advancement of education ..., the promotion of health, governmental or municipal purposes, or other purposes the achievement of which is beneficial to the community."). Also, the uncertainty of the ultimate recipients of the income from the Trust Fund closely resembles a common characteristic of a charitable trust. See Neal v. Neal, 856 So. 2d 766, 780 (Ala.2002). "`[B]eneficiaries with a sufficient special interest in the enforcement of a charitable trust can institute a suit as to that trust.'" Rhone v. Adams, 986 So. 2d 374, 377 (Ala.2007) (quoting Jones v. Grant, 344 So. 2d 1210, 1212 (Ala.1977)). However, "mere potential beneficiaries, whose interest is no greater than the interest of all the other members of a large class of potential beneficiaries of a charitable trust, have no standing to maintain an action for the enforcement of the trust." Rhone, 986 So.2d at 377 (emphasis added).
With these principles in mind, we turn to the issue of Pate's standing to insist that the interest on the compensatory-damages award that was deposited in the general fund be transferred to the Trust Fund. Pate alleges that he has standing both as a taxpayer and as an intended beneficiary of the Trust Fund to challenge the deposit of the moneys to the general fund. However, it is clear that he has no standing in either capacity.
Pate's claim of standing as a taxpayer must fail, because the Trust Fund receives no tax revenue; it is funded only from royalties from the production of oil and gas under offshore leases. Consequently, as Pate admits, no taxpayer is liable to replenish any shortfall that might occur in the Trust Fund. The absence of any such liability defeats a claim of taxpayer standing. See Jordan and Broxton, supra. In attempting to distinguish Jordan, Pate argues that "Jordan simply does not control in a situation such as this, where a member of the class being benefitted by a trust is bringing suit to protect the capital of that trust from mismanagement." Pate's brief, at 21-22. Although this argument is relevant to Pate's claim of standing as an intended beneficiary of the Trust Fund, it is irrelevant to his claim of standing as a taxpayer.
We now turn to Pate's claim of standing as an intended beneficiary of the Trust Fund. As stated in Amendment No. 450, § 1, the Trust Fund was created "[f]or the continuing benefit of the state of Alabama and the citizens thereof." Thus, according to Pate, he, as does "each and every" Alabama citizen, has a "vested right" in the moneys derived from the assets of the Trust Fund. Pate's brief, at 20, 24. Pate admits that the Alabama Constitution does "not promise that any amount of trust-generated funds will be spent on projects that personally benefit [him] to a degree greater than other Alabama citizens." Pate's brief, at 27. However, according to Pate, "any citizen of the State of Alabama is a beneficiary of the... Trust Fund [and] has standing to bring suit to prevent the mismanagement of that trust." Pate's brief, at 25. We disagree.
It is obvious that Pate does not allege that he has suffered the "actual or imminent, particularized, concrete, and palpable injury," which is necessary to support a finding of standing. Town of Cedar Bluff, 904 So.2d at 1261. Although Pate may be a member of the community to be benefited by the Trust Fund, he cannot demonstrate a "sufficient special interest in [its] enforcement [to entitle him] to institute a suit as to that trust." Rhone, 986 So.2d at 377. Indeed, his arguments *840 belie any contention that his interest is "special" in any way. By his own admission, Pate's interest is no greater than that of millions of other Alabamians, all of whom may benefit, directly or indirectly, from the expenditure of the income derived from the assets of the Trust Fund. "`It is well established that persons are not entitled to sue if their only benefit from the enforcement of the trust is that shared by other members of the public.'" Hicks v. Dowd, 157 P.3d 914, 920 (Wyo. 2007) (quoting In re Clement Trust, 679 N.W.2d 31, 37 (Iowa 2004)).
In support of his argument that he has standing as a beneficiary of the Trust Fund, Pate likens his status to that of the plaintiff in Lee v. Bronner, 404 So. 2d 627 (Ala.1981). In that case, this Court held that a "contributing member of the [State] Employees' Retirement System" had standing to bring an action alleging "dereliction of duty and statutory violations concerning the retirement fund." 404 So.2d at 629. However, unlike Pate, the member had "contributed his own money to the retirement fund," and, thus, had a "direct pecuniary interest" in the management of the fund. Id. Indeed, Pate's situation is more analogous to that of the plaintiff in Knutson v. Bronner, 721 So. 2d 678, 680 (Ala.1998), in which this Court held that "a taxpayer who is not a member of the [Retirement Systems of Alabama] has [no] standing to bring an action against [its] chief executive officer."
In conclusion, Pate asks: "Finally, who would have standing to bring suit if not Pate or some other similarly situated citizen?" Pate's brief, at 28. The officials argue that the direct beneficiary of 1% of the oil and gas capital paymentsi.e., the Lands Division of the Department of Conservationwould suffer "the first and most quantifiable injury," State's brief, at 30, and that the funds constitutionally entitled to receive portions of the income from the Trust Fund would also be injured. Pate does not contest the standing of these entities; instead, he merely questions the strength of their incentives to sue the officials. His doubts about their incentives in no way cloak Pate with standing that otherwise cannot be established. Although Pate may be quite interested in what he perceives to be a problem, he has no standing to sue the officials under the facts of this case.
III. Conclusion
For the foregoing reasons, the preliminary injunction entered against the officials is vacated, and the action filed by Pate is dismissed. Further, because a void order will not support an appeal, this appeal is dismissed.
ORDER VACATED; ACTION DISMISSED; AND APPEAL DISMISSED.
COBB, C.J., and LYONS, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.
BOLIN, J., concurs specially.
SEE, J., concurs in the result.
BOLIN, Justice (concurring specially).
The main opinion states that "[t]he Trust Fund is, insofar as its purposes are concerned, no different than a charitable trust." 3 So.3d at 839. Inasmuch as Amendment No. 450 (now § 219.02, Ala. Const. 1901 (Off.Recomp.)) creates an express trust that is not a private trust, I agree that the Alabama Trust Fund is in the nature of a charitable trust. I write specially to comment that, notwithstanding the fact that Pate in this action alleged and argued only that he had standing as a taxpayer and/or as a beneficiary of the Trust Fund, there remains the question of what person or entity would have standing to enforce the trust as a settlor.
*841 A settlor is defined in § 19-3B-103(16), Ala.Code 1975, as
"a person, including a testator, who creates, or contributes property to, a trust. If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person's contribution except to the extent another person has the power to revoke or withdraw that portion."
(Emphasis added.) Assuming that the oil and gas capital payments obligated to the trust res or trust capital are being "contributed" by the State of Alabama, that accounts for only one of the possible types of potential settlors embraced in the definition above.
The Trust Fund was created not by legislative act, but rather, by the ratification of Amendment No. 450 by the citizens/electors of the State. Amendment No. 450 begins by stating: "For the continuing benefit of the state of Alabama and the citizens thereof, there is hereby created an irrevocable, permanent trust fund named `the Alabama trust fund' which shall be funded and administered in accordance with the provisions of this amendment"; it ends by stating that "[t]his amendment shall be self-executing...." (Emphasis added.) The legislative act proposing Amendment No. 450 was wholly ineffectual until it was given life by the electoratethe legislature can propose a constitutional amendment, but cannot ratify one. See In Re Opinion of the Justices, 252 Ala. 89, 39 So. 2d 665 (Ala.1949), and Gafford v. Pemberton, 409 So. 2d 1367 (Ala. 1982). I would submit that the Trust Fund is an express trust created by the citizens of the State of Alabama and funded by the sale of State assets, so that both the citizens and the State are joint settlors of the trust.
Contrary to the Restatement (Second) of Trusts, § 391 (1959), the Uniform Trust Code, in § 19-3B-405(c), Ala.Code 1975, specifically provides that "[t]he settlor of a charitable trust, among others, may maintain a proceeding to enforce the trust." (Emphasis added.) The question is therefore posed: Who has the authority, and attendant standing, to carry out the power of enforcement conferred by this section with regard to the Trust Fund? A trustee is a fiduciary and has a fiduciary's obligation to marshal and take possession of all assets that properly belong to the trust res. Section 19-3B-809, Ala.Code 1975, directs that "[a] trustee shall take reasonable steps to take control of and protect the trust property." Section 19-3B-812 further directs that "[a] trustee shall take reasonable steps to compel a ... person to deliver trust property to the trustee...." These sections from the Uniform Trust Code combine to grant the settlor of a charitable trust the right to maintain a proceeding to compel a negligent or recalcitrant trustee to take control of trust property, and, if necessary, to compel a person to deliver trust property to the trust. In addition to the right of a trust beneficiary who has enforcement standing by virtue of an "actual or imminent, particularized, concrete, and palpable injury," Town of Cedar Bluff v. Citizens Caring for Children, 904 So. 2d 1253, 1261 (Ala.2004) (See, J., concurring specially), the legislature clearly granted an additional right to a sole or joint settlor of a charitable trust to enforce that trust; unfortunately, however, the legislature was not as clear in setting out what person or entity actually possesses that standing as a settlor.
Notwithstanding any ability Pate may have had to bring suit as a settlor to enforce the trust, either as a member of the citizenry who created the trust or as a representative of the same, it could not have been successful. A suit to enforce a trustee's duty must be brought against the trustees of the trust. In this action, Pate *842 sued only three of the nine trustees of the Trust Fundthe governor, the finance director, and the state treasurer, both in their official capacities and as trustees of the Trust Fund. Therefore, even assuming that Pate would have standing as a settlor, there would have been a failure to name indispensable parties to the action.
NOTES
[1] Although Amendment No. 450 has been incorporated into the Alabama Constitution of 1901 as § 219.02, for ease of reference, we will continue to refer to § 219.02 throughout this opinion as Amendment No. 450. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599192/ | 467 N.W.2d 451 (1991)
STATE of North Dakota, COUNTY OF CASS, ex rel. Gail Rae GULLICKSON, and Luke William Gullickson, a minor child, by and through his guardian, Bonnie Johnson, Plaintiffs and Appellees,
v.
Charles William GRUCHALLA, Defendant and Appellant.
Civ. No. 900119.
Supreme Court of North Dakota.
March 19, 1991.
*452 Charles William Gruchalla, defendant and appellant pro se.
Stephen R. Dawson (argued), Asst. States Atty., Regional Child Support Enforcement Unit, Fargo, for plaintiffs and appellees.
ERICKSTAD, Chief Justice.
Charles Gruchalla appeals from an order of the District Court for the East Central Judicial District, dated February 13, 1990, which approved, adopted, and affirmed the findings of fact and conclusions of law of the judicial referee in a civil contempt proceeding. Gruchalla was found in civil contempt of court for failure to pay his child support obligations. Gruchalla appeals, asserting that he was improperly denied court-appointed counsel. We reverse and remand.
During November of 1982, a paternity action was commenced against Gruchalla. On December 10, 1982, the district court entered an order, pursuant to a stipulation by the parties, which established a parent-child relationship between Gruchalla and the child in question. Gruchalla was ordered to pay child support in the amount of $100 per month. The rights to the support payments were subsequently assigned to the State of North Dakota upon the mother's application for public assistance.
On ten separate occasions since February of 1984, the State of North Dakota has requested that civil contempt citations be imposed upon Gruchalla as a result of his failure to meet his child support obligations. Prior to this appeal, Gruchalla spent 30 days incarcerated as a result of civil contempt proceedings.
The latest request for the issuance of a civil contempt citation, and the subject of this appeal, was initiated on December 8, 1989. During those proceedings, Gruchalla asked to be represented by court-appointed counsel. The record discloses that the district *453 court was initially reluctant to provide court-appointed counsel in a civil proceeding, but none-the-less agreed to provide Gruchalla with counsel provided Gruchalla could first prove he was indigent.
The district court asked Gruchalla to provide evidence that he was indigent. Gruchalla refused, asserting that under the Fifth Amendment to the United States Constitution, he was entitled to remain silent on the ground that to answer might tend to incriminate him. Gruchalla indicated that he would be willing to testify concerning his indigence upon the condition that he be granted immunity from prosecution. As an alternative, Gruchalla suggested that the court hold an in camera hearing to consider his claim of indigence. The district court denied Gruchalla's request for an in camera hearing and subsequently denied his request for counsel at state expense.
Although it appears to be a question of first impression of this Court, it is well-settled that the Sixth Amendment right to counsel attaches in some civil contempt proceedings where the penalty of incarceration will be imposed.[1]E.g., Colson v. Joyce, 646 F. Supp. 102, 105 (D.Me.1986). Colson provides an excellent discussion of the right to counsel in civil contempt proceedings. Id. at 105-106. It asserts that all Federal Circuit Courts of Appeals have held that such a right exists. Id. at 105.
The United States Supreme Court has also recognized, in dicta, that indigent defendants have a right to have counsel appointed at government expense when their physical liberty is in jeopardy. Lassiter v. Department of Social Services, 452 U.S. 18, 26-27, 101 S. Ct. 2153, 2159-2160, 68 L. Ed. 2d 640 (1981). We agree that indigent defendants in civil contempt proceedings should be granted counsel at state expense when, if they lose, they will likely be deprived of their physical liberty.[2]
In the instant case, Gruchalla was afforded the right to counsel at state expense provided he offered proof of his indigence. The issue, therefore, is whether or not Gruchalla could refuse to provide evidence concerning the question of indigence based upon the Fifth Amendment privilege against self-incrimination.
Gruchalla asserts that the Fifth Amendment provides him with an "absolute" privilege to remain silent at any time. One's rights under the Fifth Amendment are not quite that simple.
We recognize that the Fifth Amendment protection against self-incrimination may be asserted in civil, criminal, or administrative proceedings. Estate of Fisher v. C.I.R., 905 F.2d 645, 648 (2nd Cir.1990) (citing Kastigar v. United States, 406 U.S. 441, 92 S. Ct. 1653, 32 L. Ed. 2d 212 (1972)); *454 State v. Gross, 351 N.W.2d 428, 432 (N.D. 1984).
The witness may assert the privilege when he or she believes that the testimony sought may "furnish a link in the chain of evidence needed to prosecute" him or her for a crime.[3]Hoffman v. United States, 341 U.S. 479, 486, 71 S. Ct. 814, 818, 95 L. Ed. 1118 (1951).
"The right not to answer potentially incriminating questions in a civil or criminal proceeding, however, is not absolute.
The prohibition against compelling the testimony of a witness in any setting is predicated upon there being a real danger that the testimony might be used against the witness in later criminal proceedings. As Justice Blackmun noted in his concurrence in Pillsbury [v. Conboy,] `[i]t is black-letter law that a witness cannot assert a Fifth Amendment privilege not to testify "if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness."` 459 U.S. [248] at *455 273, 103 S.Ct. [608] at 622 [74 L. Ed. 2d 430 (1983) ] (quoting Brown v. Walker, 161 U.S. 591, 597, 16 S. Ct. 644, 647, 40 L. Ed. 819 (1896))."
Andover Data Services v. Statistical Tabulating, 876 F.2d 1080, 1082 (2nd Cir.1989).
The Fifth Amendment privilege against self-incrimination does not allow a blanket refusal to answer any questions in a civil matter. E.g., Estate of Fisher, 905 F.2d at 648-49; United States v. Shivers, 788 F.2d 1046, 1049 (5th Cir.1986); American State Bank of Dickinson v. Stoltz, 345 N.W.2d 365, 369 (N.D.1984). In Stoltz, a case involving a refusal to answer questions during a hearing supplementary to the execution of a judgment, we said:
"It is well settled that there is no blanket Fifth Amendment right to refuse to answer questions in noncriminal proceedings. The privilege must be asserted with respect to particular questions, and in each instance it is for the court to determine the propriety of the refusal to testify. [Citation omitted.]"
345 N.W.2d 369. We also noted in Stoltz:
"`The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himselfhis say-so does not of itself establish the hazard of incrimination. It is for the court to say whether his silence is justified....'"
Id. (quoting Hoffman, 341 U.S. at 486, 71 S.Ct. at 818, 95 L. Ed. 1118); Estate of Fisher, 905 F.2d at 648.
When the danger of incrimination is not apparent "the burden of establishing its existence rests on the person claiming the privilege." Estate of Fisher, 905 F.2d at 649. The asserting party has the burden to "specifically establish that a real and appreciable danger of incrimination exists with respect to each question." Stoltz, 345 N.W.2d at 369.
Gruchalla refused to answer any questions presented to him, and refused to provide the court with a rationale as to why his testimony would violate his privilege against self-incrimination. However, in light of the fact that he was facing a contempt charge for failure to pay child support, had Gruchalla testified relative to indigence without the assurance that his testimony would not be used against him, he likely would have been testifying concerning income and assets available to him, and that testimony could "furnish a link in the chain of evidence needed" to prove the contempt. We conclude that, as any disclosure of facts relative to proof of indigence could be used to incriminate him in the contempt proceedings, he should have been afforded an opportunity to prove his indigence during an in camera hearing.[4]
In so concluding, we have not relieved Gruchalla of his burden of providing evidence of his indigence, nor have we relieved him of showing cause why he should not be found to be in contempt of court for *456 failing to support his child. If he proves his indigence in camera, he should be permitted to have counsel appointed to represent him at state expense in the contempt proceedings before another judge who has not participated in the in camera proceedings. This procedure will permit Gruchalla to have his right to the appointment of counsel at state expense determined without the risk of incriminating himself.
In United States v. Rylander, a case in which the defendant had been charged with civil contempt for failure to comply with an IRS summons, the United States Supreme Court said:
"The Court of Appeals also gave weight to the fact that Rylander's asserted reason for refusing to allow cross-examination was his claim that answering such questions might lead him to incriminate himself. But while the assertion of the Fifth Amendment privilege against compulsory self-incrimination may be a valid ground upon which a witness such as Rylander declines to answer questions, it has never been thought to be in itself a substitute for evidence that would assist in meeting a burden of production. We think the view of the Court of Appeals would convert the privilege from the shield against compulsory self-incrimination which it was intended to be into a sword whereby a claimant asserting the privilege would be freed from adducing proof in support of a burden which would otherwise have been his. None of our cases support this view."
460 U.S. 752, 758, 103 S. Ct. 1548, 1553, 75 L. Ed. 2d 521 (1983). While our decision is intended to protect Gruchalla's right to counsel, it should not be read to expand the right generally to claim the Fifth Amendment privilege against self-incrimination.
For the reasons stated above, we reverse and remand this case for further proceedings consistent with this opinion.
VANDE WALLE, GIERKE and MESCHKE, JJ., concur.
LEVINE, Justice, concurring specially.
I concur in that portion of the opinion which holds that when there is a right to counsel which, as I understand, the State has conceded in this case, then, a defendant is entitled to at least some in camera procedure when his testimony about indigence may be self-incriminating. As a prerequisite, a defendant must first, however, "specifically establish that a real and appreciable danger of incrimination exists with respect to each question." American State Bank of Dickinson v. Stoltz, 345 N.W.2d 365, 369 (N.D.1984).
My disagreement with the majority arises from the proper application of Stoltz to the facts at hand. I disagree that Gruchalla has established that he is automatically entitled to a full in camera proceeding on the issue of his alleged indigence. I agree, however, that on remand, he is entitled to show, in camera, as a threshold matter, why his right to self-incrimination generally is really and appreciably endangered. Stoltz. If he does meet this threshold requirement, there should follow, still in camera, individual questions relating to his alleged indigence and he should be called upon to explain why each question poses a "real and appreciable danger of incrimination." If Gruchalla does not establish a real and appreciable danger, either generally or specifically, the in camera proceeding should be terminated.
I agree that this case should be remanded for further proceedings. I, therefore, specially concur.
NOTES
[1] The right to counsel in criminal prosecutions in North Dakota is protected by Article I, § 12 of the North Dakota Constitution. The legislature has also addressed the right to counsel. Some examples of statutory provisions relating to the appointment of counsel are: § 27-20-26 (right to counsel during juvenile proceedings); § 27-20-45 (right to counsel in matters concerning the termination of parental rights); § 29-05-20 (right to counsel following an arrest); § 29-01-06 (right to counsel in criminal defense); § 29-07-01.1 (providing for the compensation of state appointed counsel); § 29-32.1-05 (right to counsel in post conviction proceeding). We also note that a party may be afforded counsel in proceedings to establish paternity under N.D.C.C. § 14-17-18. Initially, Gruchalla asserted his right to counsel under § 14-17-18, but later appeared to rely on the Sixth Amendment right to counsel. Because we have disposed of this case on the basis of the Sixth Amendment right, we need not determine the extent of the right to counsel provided by § 14-17-18. The North Dakota Rules of Criminal Procedure also addressed the right to counsel: N.D.R.Crim.P. 10 (defendants are to be informed of their right to counsel); N.D.R.Crim.P. 5(b)(1) (defendants shall be informed of their right to counsel at their initial appearance); N.D.R.Crim.P. 5(b)(2) (when faced with felony charges, defendants have a right to counsel during the preliminary hearing); N.D.R.Crim.P. 44 (indigent defendants have the right to counsel in felony cases and in all non-felony cases where the defendant is faced with imprisonment).
[2] Because the state has failed to challenge the district court's determination that Gruchalla should be afforded counsel, we will not question that decision on appeal. However, we note that where "conditional" penalties are imposed for contempt, the defendant may not be entitled to the same protections that a defendant under the risk of purely punitive penalties is entitled. Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S. Ct. 1423, 99 L. Ed. 2d 721 (1988); see infra, note 3.
[3] We have not yet established the boundaries for determining when persons may assert their Fifth Amendment privileges against self-incrimination arising from a fear of criminal prosecution. The United States Supreme Court has, however, said:
"[O]ur Constitution guarantees that no person shall be `compelled' to be a witness against himself when he is threatened with deprivation of his liberty."
Application of Gault, 387 U.S. 1, 87 S. Ct. 1428, 1455, 18 L. Ed. 2d 527 (1967). In Gault, the Supreme Court reversed the committal of a juvenile to the Arizona State Industrial School, in part, on the basis that the state had failed to advise the boy of his privilege against self-incrimination.
More recently, the United States Supreme Court narrowed that view, saying:
"Gault's sweeping statement that `our Constitution guarantees that no person shall be "compelled" to be a witness against himself when he is threatened with deprivation of his liberty,' is plainly not good law. Although the fact that incarceration may result is relevant to the question whether the privilege against self-incrimination applies, ... involuntary commitment does not itself trigger the entire range of criminal procedural protections. [Citations omitted.]"
Allen v. Illinois, 478 U.S. 364, 372, 106 S. Ct. 2988, 2994, 92 L. Ed. 2d 296 (1986).
Even more recently in a case involving a contempt proceeding following a failure to comply with a child support order, the United States Supreme Court distinguished between civil and criminal contempt and indicated the different consequences that flow from each:
"The question of how a court determines whether to classify the relief imposed in a given proceeding as civil or criminal in nature, for the purposes of applying the Due Process Clause and other provisions of the Constitution, is one of long standing, and its principles have been settled at least in their broad outlines for many decades. When a State's proceedings are involved, state law provides strong guidance about whether or not the State is exercising its authority `in a nonpunitive, noncriminal manner,' and one who challenges the State's classification of the relief imposed as `civil' or `criminal' may be required to show `the clearest proof' that it is not correct as a matter of federal law. Nonetheless, if such a challenge is substantiated, then the labels affixed either to the proceeding or to the relief imposed under state law are not controlling and will not be allowed to defeat the applicable protections of federal constitutional law. This is particularly so in the codified laws of contempt, where the `civil' and `criminal' labels of the law have become increasingly blurred.
"Instead, the critical features are the substance of the proceeding and the character of the relief that the proceeding will afford. `If it is for civil contempt the punishment is remedial, and for the benefit of the complainant. But if it is for criminal contempt the sentence is punitive, to vindicate the authority of the court.' The character of the relief imposed is thus ascertainable by applying a few straight-forward rules. If the relief provided is a sentence of imprisonment, it is remedial if `the defendant stands committed unless and until he performs the affirmative act required by the court's order,' and is punitive if `the sentence is limited to imprisonment for a definite period.' If the relief provided is a fine, it is remedial when it is paid to the complainant, and punitive when it is paid to the court, though a fine that would be payable to the court is also remedial when the defendant can avoid paying the fine simply by performing the affirmative act required by the court's order. These distinctions lead up to the fundamental proposition that criminal penalties may not be imposed on someone who has not been afforded the protections that the Constitution requires of such criminal proceedings, including the requirement that the offense be proved beyond a reasonable doubt. [Citations and footnotes omitted.]"
Hicks on Behalf of Feiock v. Feiock, 485 U.S. 624, 108 S. Ct. 1423, 1429-30, 99 L. Ed. 2d 721 (1988).
Our Court has quite recently delineated the differences between civil and criminal contempt in Baier v. Hampton, 417 N.W.2d 801 (N.D. 1987).
[4] Because the state has not challenged Gruchalla's assertion of the privilege, we have refrained from deciding whether or not a person may invoke the privilege against self-incrimination where the fear is that the evidence may be used in a "civil" contempt proceeding. The United States Supreme Court has recognized that "conditional" contempt penalties are civil in nature. Hicks, 485 U.S. 624, 108 S.Ct. at 1430. In Hicks, the Supreme Court stated:
"The distinction between relief that is civil in nature and relief that is criminal in nature has been repeated and followed in many cases. An unconditional penalty is criminal in nature because it is `solely and exclusively punitive in character.' Penfield Co. v. SEC, 330 U.S. 585, 593, 67 S. Ct. 918, 922, 91 L. Ed. 1117 (1947). A conditional penalty, by contrast, is civil because it is specifically designed to compel the doing of some act. `One who is fined, unless by a day certain he [does the act ordered], has it in his power to avoid any penalty. And those who are imprisoned until they obey the order, "carry the keys of their prison in their own pockets."` Id., at 590, 67 S.Ct., at 921, quoting In re Nevitt, 117 F. 448, 461 (CA8 1902)."
Id. In the case at hand a conditional penalty was imposed upon Gruchalla. Gruchalla could either spend a maximum of 30 days in jail, or, at anytime, comply with the court ordered support payments and be released. Although this seems significant in determining whether or not providing evidence which could be used in the contempt proceedings would have been "self-incriminating," because the state failed to challenge the district court's initial determination that Gruchalla should have counsel, we will not question that determination today. See supra, note 1. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599209/ | 729 So. 2d 1141 (1999)
STATE of Louisiana
v.
Theresa MORRIS.
No. 98-K-2684.
Court of Appeal of Louisiana, Fourth Circuit.
March 10, 1999.
Harry F. Connick, District Attorney, Eli Nelson, Assistant District Attorney, Norman Comeaux, Assistant District Attorney, Orleans Parish, New Orleans, Louisiana for Plaintiff/Relator.
Court composed of Judge JOAN BERNARD ARMSTRONG, Judge CHARLES R. JONES and Judge MIRIAM G. WALTZER.
ARMSTRONG, Judge.
We grant the State's application for supervisory writs to consider the correctness of a trial court ruling granting the defendant Theresa Morris' motion to withdraw the guilty plea. For the following reasons, we affirm the ruling of the trial court.
On November 25, 1996, the defendant was charged with one count of distribution of marijuana, a charge to which she originally pled not guilty. However, on July 1, 1998, she withdrew this plea and pled guilty as charged. The court reset sentencing, and on September 18, 1998, new counsel filed a motion to withdraw the guilty plea. A hearing was held on this motion on September 21, 1998 and at that time the court noted it was not going to rule on the motion until after sentencing. Sentencing was reset to September 22, 1998 when the defendant reurged the motion. Again, the court deferred ruling on the motion, and it sentenced the defendant to serve ten years at hard labor as per the plea bargain agreement. On October 2, 1998 the court again considered the motion to withdraw the guilty plea, and on October 6th the court granted the motion and set a trial date of December 2, 1998. The State sought relief in this court in mid-November 1998, and at that time this court stayed the trial pending resolution of this matter. In compliance with orders from this court, the State has supplemented its application with the transcripts of the September 21, September 22, and October 2, 1998 hearings, and the trial court filed a per curiam.
In its application, the State argues that the trial court should not have allowed the defendant to withdraw her guilty plea because she *1142 had already been sentenced. A reading of the supplemental transcripts reveals the defendant filed the motion to withdraw the guilty plea prior to sentencing and repeatedly attempted to have the court rule on the motion prior to sentencing. However, the court refused to do so, noting the plea was taken many months prior to the hearings. It is equally clear that the trial court did not grant the motion based upon the reason set forth in the motion to withdraw, that the plea was not knowingly given because there was an actual conflict between her interests and those of her codefendant, who was also represented by the defendant's counsel at the time the defendant pled guilty. Instead, the per curiam and the transcripts indicate the trial court granted the motion based upon the defendant's showing that the court failed to advise her of her right to conflict-free counsel, as set forth in La.C.Cr.P. art. 517.
The standard of review in determining whether a trial court erred in its ruling on a motion to withdraw a guilty plea, filed and ruled upon prior to sentencing, is whether the trial court's discretion is abused or arbitrarily exercised. See State v. Pichon, 96-0886 (La.App. 4 Cir. 11/20/96), 684 So. 2d 501.[1] Although La.C.Cr.P. art. 559 authorizes the trial court to grant a motion to withdraw only prior to sentencing, this authority has been extended in a limited fashion to cases where the motion is filed after sentencing. In those cases, a trial court is authorized to allow a defendant to withdraw his guilty plea if it finds the plea was not freely or voluntarily entered or that the plea is unconstitutionally infirm. See State v. Lewis, 421 So. 2d 224 (La.1982); State v. Smith, 406 So. 2d 1314 (La.1981); State v. King, 93-2146 (La.App. 4 Cir. 6/30/94), 639 So. 2d 1231.[2]
In the instant case, the motion was filed prior to sentencing, but over defense objection the trial court refused to rule until after sentencing. In light of these facts, we find the "pre-sentence" abuse of discretion standard applies. Indeed, the defendant should not be penalized, in that a stricter standard would be required to grant her motion, simply because the trial court refused to rule on the motion prior to sentencing.
Under an abuse of discretion standard, we uphold the trial court's ruling. As noted in the court's per curiam, La.C.Cr.P. art. 517 mandates that jointly-represented defendants be advised of their rights to conflict-free representation. Art. 517 provides:
A. Whenever two or more defendants have been jointly charged in a single indictment or have moved to consolidate their indictments for a joint trial, and are represented by the same retained or appointed counsel or by retained or appointed counsel who are associated in the practice of law, the court shall inquire with respect to such joint representation and shall advise each defendant on the record of his right to separate representation.
B. Unless it appears that there is good cause to believe that no conflict of interest is likely to arise, the court shall take such measures as may be appropriate to protect each defendant's right to counsel.
In the present case, defense counsel submitted affidavits from prior counsel and from the court's own court reporters that the court failed to advise the defendant of her right to conflict-free counsel prior to accepting her plea of guilty. Given the court's failure to comply with the mandates of art. 517, we find that the trial court did not abuse its discretion by finding such failure rendered the plea involuntary.
Even if we were to employ the stricter standard used to determine if a plea should be set aside where the motion to do so is filed after sentencing, it still appears the trial court did not err. The court stated that by failing to advise the defendant of her right to conflict-free counsel, it could not find that her plea was knowingly given, which is a basis for granting a motion to withdraw a guilty plea which is filed after sentencing. Thus, it appears the trial court did not err even if the stricter standard is employed.
*1143 CONCLUSION
Because the defendant filed her motion to withdraw her guilty plea prior to sentencing and objected to the imposition of sentence prior to the ruling on the motion, we should not "penalize" her by employing a stricter standard of review of the trial court's ruling. The facts of the case indicate the trial court did not abuse its discretion by granting the motion. Accordingly, we grant the application for supervisory writs, and affirm the ruling of the trial court.
WRIT GRANTED; AFFIRMED.
NOTES
[1] Writ den. 97-0520 (La.9/5/97), 700 So. 2d 504.
[2] Overruled on other grounds, State v. Green, 93-1432 (La.App. 4 Cir. 4/17/96), 673 So. 2d 262. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601897/ | 361 F. Supp. 825 (1973)
UNITED STATES of America
v.
Kenneth Arnold MILLER.
No. A-73-59.
United States District Court, W. D. North Carolina.
July 24, 1973.
*826 Mr. Miller proceeded pro se.
Keith Snyder, U. S. Atty., Asheville, N. C., for the United States.
MEMORANDUM OF DECISION and ORDER
CRAVEN, Jr.,[*] Circuit Judge.
This is a petition to vacate, set aside, or correct sentence brought by Kenneth Arnold Miller pursuant to 28 U.S.C. § 2255. Proceeding pro se, Mr. Miller informally addressed the petition to me because I was his sentencing judge. I declined to consider it and remanded it to the district court. Thereafter, the United States Attorney, also proceeding informally, joined in Mr. Miller's request that I cause myself to be designated to sit as a district judge to consider and determine the petition. After discussion with Chief Judge Haynsworth and with Chief Judge Jones of this district, I agreed to do so and have been so designated.
This is a Tucker problem.[1] On May 12, 1966, in my then capacity as District Judge for the Western District of North Carolina, I sentenced Miller and his confederate, Carver, for bank robbery. Carver got ten years and has long since been successfully paroled. He carried the weapon used in the robbery, and in my opinion, was the more culpable of the two. Miller got eight years. I thought then, and think now, that he is not violence-prone, and probably would not deliberately harm another person, even to escape apprehension and punishment for a serious offense. Nevertheless, bank robbery is a serious matter, and I believe somewhat in the validity of the deterrent theory, despite there being much evidence to the contrary.[2]
After serving approximately three and one-half years in the Atlanta Penitentiary, Miller was paroled to the supervision of Mr. Robert Colville of the Probation Department of the United States District Court for this district. By his own determination, and with the help of Mr. Colville, Miller stayed out of trouble for nearly three years. But Miller is an alcoholic: he has probably never violated the law except when drunk. He was arrested for driving drunk and public drunkenness, and his parole was revoked in November 1972. He has now served some four years and two months of this eight-year sentence, and with time off for good behavior, which he has always earned, he should complete service of his sentence in approximately three and one-half years.
In his petition, Miller urges that 75 percent of his prior criminal record, which was presented to me as a part of the presentence report, should not have been considered because he was not represented by counsel. Commendably, the United States Attorney has verified Miller's attack on particular convictions and stipulates that he was, in fact, unrepresented by counsel and did not waive the appointment of counsel. Accordingly, there is no fact issue to be resolved, and I have determined it is unnecessary for Miller to be in attendance or to have counsel appointed. The Congress has required neither. 28 U.S.C. § 2255.
It is true, as conceded by the United States Attorney, that prior convictions of automobile larceny, breaking and entering, and receiving stolen property are void by reason of Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), and, under Tucker, *827 should not have been considered in the sentencing process.
The United States Attorney joined in Miller's prayer that I hear this matter because he thought that no one could know quite so well as I what factors entered into the formulation of the sentence imposed. But memory fails. I cannot reconstruct what I thought about on May 12, 1966. The best I can do is rely upon habit: always in the course of ten years as a trial judge (state and federal) I took into account a defendant's prior criminal record when I sentenced him. I can only assume that I must have done so with respect to Miller.
The void sentences are not only the most serious ones, but are later in point of time, and therefore more significant factors in the determination of a proper sentence than those suffered when he was very young. Since I always took into account a man's prior record, I must assume that if his "laundered" record had been presented to me it would have been to his advantage.
Miller's sentence is now inappropriate because prior convictions of serious offenses (that now must be treated as void) contributed to the formulation of sentence and enhanced punishment. See Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972), and Brown v. United States, 483 F.2d 116 (4th Cir. 1973) (concurring and dissenting opinion). I therefore conclude that under the Tucker doctrine Mr. Miller is entitled to vacation of his sentence and to be resentenced.
What is now an appropriate sentence? All of my judicial life I have wished for precision in the art of sentencing, and it eludes me. It seems to me incongruous that trial judges, without either training or experience in penology, are accorded finality in the determination of punishment.
What happens at this juncture depends largely on the judge's conscience or, as some have suggested, the state of his digestion. Nine out of ten defendants plead guilty without trial. For them the punishment is the only issue, and yet we repose in a single judge the sole responsibility for this vital function.
Not long ago when my colleague on this panel, Judge Walsh, was Deputy Attorney General, he strikingly pointed out the glaring inconsistency of our approach. This is what he said, "One of the greatest problems the judge has is sentencing. The defendant, too. If he makes a mistake of law, he can be reviewed by an appellate court and be straightened out. If he makes a mistake in sentencing, there's nothing much that can be done about it. He makes a mistake and it sticks."
. . . . . .
The complexity of the problem persists whatever standards the judge avows in determining the sentence, whether it be rehabilitation, deterrence or vindication of the community sense of justice. . . . It is both unwise and unfair, it seems to me, to let a single judge handle the job alone with no authority in any quarter to check on possible aberrations, however unjust the result may be, provided only that the statutory limit has not been exceeded. The truth is that passing sentence is far too delicate a power and too consequential to be lodged in any man's hands entirely unsupervised. It jars with our traditional notions of human freedom to say that the exercise of such vast power by one man shall remain beyond review by anyone else. I see no reason why our basic concepts of checks and balances should not apply to men's destinies as well as to procedural matters, civil damages and the like. In no other role can a judge so freely impose a pattern of his personal reactions, philosophy and animosity as when he sentences a man who has no right of appeal though the effect may be his destruction. In no other area of the law are judicial prerogatives so uncontrolled or criteria so obscure in no other country is such a situation permitted to exist.
*828 Address by Judge Sobeloff, Symposium of the Judicial Conference of the United States Court of Appeals for the Second Circuit, September 24, 1962, 32 F.R.D 264, 265-268.
Even today one can graduate from the nation's best law schools without receiving so much as one hour of instruction in penology. It should not be surprising that this is sofor penology is not law: it is sociology. The only law is the maximum sentence. When I was a trial judge, and charged with the responsibility of sentencing, I used to make myself scan and sometimes read the quarterly entitled "Federal Probation" devoted to the science of penology. That, plus attendance at a sentencing institute and visits to three prisons comprised nearly all of my training and experience for the sentencing function. I think it not enough. I have about concluded that the trial judges I have known (including me, especially) are not as qualified by education and experience as are those from other disciplines to decide whether a man should go, nor how long he should remain in prison. See generally, Frankel, Criminal Sentences 12-16 (1973). Indeed, I wonder if any one man can be truly qualified for such an awesome responsibility: to do right may require a panel of persons with diverse sociological expertise. ABA Standards Relating to Sentencing Alternatives and Procedures 8, 9, 200 & 230 (Approved Draft 1968); See Hayner, Sentencing by an Administrative Board, 23 Law & Contemp. Prob. 477 (1958). It seems to me that a federal probation officer's experience and probable aptitude equip him better than most to decide what is best for Kenneth Miller and what degree of risk to society his release may entail. For longer than I have been a judge Mr. Colville has dealt with the Kenneth Millers of this world. Mr. Colville has now recommended that the remainder of Miller's sentence be suspended and that he be placed on probation.
Because the eight-year sentence imposed on May 12, 1966, was enhanced to some degree by reason of my consideration of certain prior criminal offenses which should not have been taken into account, I conclude that the sentence of May 12, 1966, was inappropriate, and Mr. Miller is entitled to be resentenced. In the exercise of sentencing discretion, Mr. Miller will be resentenced to an indeterminate sentence of seven years, pursuant to 18 U.S.C. § 4208(a)(2).[3] The computation of the seven-year resentence will, of course, run from May 12, 1966, and will be imposed nunc pro tunc.
The recommendation of the federal probation officer is accepted and adopted as my own, and the remainder of the seven-year sentence will be suspended and Mr. Miller will be placed on probation subject to all of the general conditions of probation and this special condition: that he cooperate and participate in the alcoholism treatment program of the Blue Ridge Community Mental Health Center. The suspension period will be for a term of two years.
It is so ordered.
NOTES
[*] Sitting as a district judge by designation.
[1] United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972).
[2] It may have been Dickens who first reported that pickpockets used to pick the pockets of people watching the hanging of a pickpocket. See Generally R. Donnelly, J. Goldstein & R. Schwartz, Criminal Law 48 (1962); H. Packer, The Limits of the Criminal Sanction 39 (1968).
[3] I believe it can make no difference now to Kenneth Miller whether he is resentenced under 42 U.S.C. § 4208(a)(2) or receives a so-called "straight" sentence.
Because Miller has succeeded in the prosecution of his writ under § 2255, and because he will be accorded greater leniency than the sentence previously imposed, I am inclined to think that it would be an exercise in futility to formally convene the court and accord him, again, the right of allocution. But since the application of Rule 32(a) to resentencing is not entirely clear, I do not deny it to him. At Mr. Miller's request I will formally resentence him and accord to him the right of allocution. His failure to make such a request shall be deemed a waiver.
Mr. Miller is also hereby notified that he has a right to appeal which must be exercised within thirty days of the entry of this order. If he is unable to pay the costs of an appeal, he may apply for leave to appeal in forma pauperis. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599164/ | 729 So. 2d 796 (1998)
BAY ST. LOUIS COMMUNITY ASSOCIATION, Preserve Diamondhead Quality, Inc., Gulf Islands Conservancy, Inc., and Concerned Citizens to Protect the Isles and Point, Inc.
v.
COMMISSION ON MARINE RESOURCES, Hancock County Port and Harbor Commission and Casino World, Inc.
No. 97-CC-00101-SCT.
Supreme Court of Mississippi.
July 23, 1998.
Rehearing Denied October 15, 1998.
Reilly Morse, Gulfport, Attorney for Appellants.
Ben H. Stone, Terese T. Wyly, Eaton & Cottrell, Gulfport, Attorneys for Appellees.
Before SULLIVAN, P.J., and McRAE and MILLS, JJ.
McRAE, Justice, for the Court:
¶ 1. Before this Court is a question of the exhaustion of administrative remedies. The Chancery Court of Hancock County dismissed the appeal of an order of the Commission on Marine Resources (CMR) granting a permit to Casino World, Inc. and Hancock County Port and Harbor Commission (appellees) on the basis that it was not timely filed pursuant to Miss.Code Ann. § 49-27-39 (1972). The chancellor below ruled that the Bay St. Louis Community Association, Preserve Diamondhead Quality, Inc., Gulf Islands Conservancy, Inc., and Concerned Citizens to Protect the Isles and Point, Inc. (appellants) should have filed their appeal to the chancery court within thirty days after the permit was mailed to the appellees. Finding that the chancellor below erred in dismissing the appeal in the chancery court as untimely, we reverse and remand.
*797 FACTS
¶ 2. Casino World and Hancock County Port and Harbor Commission applied to the CMR to amend the use plan at a site on the north shore of St. Louis Bay from "general" to "industrial" and to issue a permit for a casino resort. Four community groups, objected to the application. On July 16, 1996, CMR granted the requested plan change and permit. Between July 20 and July 30, 1996, several individuals and groups, including the appellants, filed requests for reconsideration of CMR's decision as authorized by the Coastal Program. CMR notified the appellants that the petitions for reconsideration would be brought before the Commission at its next meeting on August 20, 1996.
¶ 3. On August 13, 1996, pursuant to Miss. Code Ann. § 49-27-37, the Department of Marine Resources (DMR) mailed the permit to Casino World and Hancock County Port and Harbor Commission. DMR notified the recipients of the permit, "As you are aware, the Commission action approving this project is the subject of a Commission reconsideration scheduled for August 20, 1996." DMR did not mail a copy of the permit to the appellants.
¶ 4. On August 20, 1996, CMR voted to deny reconsideration of its decision. At the same meeting, CMR adopted a written statement entitled "Findings of Fact and Conclusions of Law with Respect to Approval of the Application of Hancock County Port and Harbor Commission and Casino World Permit Application for an Adjustment to the Coastal Wetlands Use Plan and Wetlands Permit." The statement read, "It is therefore ordered that the wetlands permit be granted and the conditional "I" designation of the permit site shall become effective upon execution of these findings."
¶ 5. On September 18, 1996, appellants filed their notice of appeal, thirty-six days after the Department of Marine Resources mailed the permit to the Hancock County Port and Harbor Commission, Casino World, Inc., Cathy Mallette, Ronald Krizman of the COE, and Jim Morris of the DEQ. Casino World and Hancock County Port and Harbor Commission filed a motion to dismiss the appeal as untimely. CMR did not join the motion. On December 30, 1996, the chancellor granted the motion to dismiss, holding that the appeal time commenced with the issuance of the permit, rather than with the final decision of CMR to deny reconsideration. The appeal to this Court was timely perfected. The appellants frame their assignments of error as follows:
1. The lower court erred in holding that the time for appeal commenced before CMR's order became final.
2. Appellants properly and justifiably followed CMR's regulations for reconsideration and appeal, and therefore the appeal was timely filed.
3. The lower court erred in disregarding Appellants' duty to exhaust their administrative remedies before appealing the CMR's decision.
4. Section 49-27-39 begins the time for appeal from the mailing of the CMR order of issuance of the permit, and CMR failed to mail the permit to Appellants.
Issues 1, 2, and 3 are inextricably intertwined. The basis of these assignments is that the chancellor below erred in dismissing appellants' appeal as untimely, because 1) the appellants had not yet exhausted their administrative remedies before filing and 2) the appellants followed CMR's regulations for reconsideration and appeal. Accordingly, we address the first three assignments of error together.
DISCUSSION
1. The lower court erred in holding that the time for appeal commenced before CMR's order became final.
2. Appellants properly and justifiably followed CMR's regulations for reconsideration and appeal, and therefore the appeal was timely filed.
3. The lower court erred in disregarding Appellants' duty to exhaust their administrative remedies before appealing the CMR's decision.
¶ 6. The activities of the Mississippi Commission on Marine Resources are governed by the Coastal Wetlands Protection Act, Miss.Code Ann. § 49-21-1, et seq. Regarding issuance of permits,
*798 [t]he commission shall send a copy of any order in issuance, denial, revocation or suspension of a permit to the parties stated in section 49-27-17, and such orders must be sent within ninety (90) days from the receipt of the application in the case of granting or denying or thirty (30) days from the date of the hearing in the case of suspension or revocation.
Miss.Code Ann. § 49-27-37 (Supp.1997). Further, Miss.Code Ann. § 49-27-39(a) (1990) reads:
An appeal may be taken by the applicant, or any person or corporation, municipal corporation, county or interested community group who has been aggrieved by such order, from the denial, suspension or revocation of a permit or the issuance of a permit or conditional permit and who has filed written protest or objection as specified in sections 49-27-9 to 49-27-21, within thirty (30) days after the mailing to the parties of the order of issuance, denial, suspension or revocation of any such permit, to the chancery court of any county having jurisdiction over the property which may be affected by any such proposed activity to be authorized by such permit.
The crux of the dispute here is the effect of the mailing of the permit. The appellees contend that when the actual permit was mailed to Casino World on August 13, 1996, the thirty-day appeals clock began to run against the appellants. The appellees were aware that the Commission action approving this project and issuing a permit was the subject of a Commission reconsideration scheduled for August 20, 1996. The appellants contend that since the CMR did not vote against reconsideration of its original decision until August 20, 1996, the thirty-day appeals clock did not start running until that date. Appellants argue that the permit decision was not final and appealable because no final order granting the permit existed until the Commission completed the reconsideration of the permit issuance on August 20, 1996.
¶ 7. The Commission on Marine Resources is a state administrative agency. Appeals from state administrative agency hearings are controlled by statute and will only be allowed after entry of a final order. Wilson v. Mississippi Employment Sec. Comm'n, 643 So. 2d 538, 540 (Miss.1994). For the chancellor's dismissal of the appellants' claim to be valid, then, this Court first must conclude that the letter to Casino World (dated August 13, 1996) containing the permit issued by the CMR on July 16, 1996, constituted an "order of issuance ... of any such permit" such that the appeals clock in 49-27-39 would start running on August 13, 1996.
¶ 8. Initially, it must be noted that the letter containing the permit did not contain anything styled as an "order" from the Commission. Further, it also must be noted that on reconsideration of the action approving the permit and project, the Commission issued what was styled as "Findings of Fact and Conclusions of law with Respect to Approval of the Application of Hancock County Port and Harbor Commission and Casino World Permit Application for an Adjustment to the Coastal Wetlands Use Plan and Wetlands Permit." Nonetheless, even though the word "order" was not used in the letter and the Commission on Marine Resources did not issue a standard "Order Issuing Permit," the permit accompanying the letter would have been valid if no request for reconsideration had been made. We find that the letter submitted to Casino World by the DMR constituted an "order of issuance of permit." The question remains, however, whether such order was final and appealable.
¶ 9. Though the letter effectively would have granted a permit to Casino World had no objection been made, it defies logic that the letter from the DMR, on behalf of the CMR, to Casino World constituted a final order from which an appeal could be made to the chancery court, when such letter specifically recognized that the Commission was entertaining the idea of disapproving the project upon reconsideration. It is axiomatic that administrative remedies must be exhausted before judicial review can be sought. Mississippi Dep't of Pub. Safety v. McKnight, 623 So. 2d 249, 252 (Miss.1993). Moreover, "`[a]n order is interlocutory when `the substantial rights of the parties involved in the action remain undetermined and when *799 the cause is retained for further action.''" Blankenship v. Delta Pride Catfish, Inc., 676 So. 2d 914, 916 (Miss.1996) (quoting Freeman Truck Line, Inc. v. Merchants Truck Line, Inc., 604 So. 2d 223, 224 (Miss.1992)). If, as Casino World/CMR claims, the letter from the DMR was an order, then nothing in that "order" finalized the questions raised by the appellants' petition for reconsideration. See Blankenship, 676 So.2d at 918 (finding that since order from Workers' Compensation Commission established "that all matters among the parties currently before the Commission were determined by the order and further, that nothing had been retained by the Full Commission or remanded to the Administrative Law Judge for further consideration," order was final and appealable). In fact, the letter from the DMR, on behalf of the CMR, explicitly stated that the permit was the subject matter of a petition for reconsideration that was pending before the Commission. If the order was being reconsidered, it could not have been final. Ergo, the order was interlocutory, and no appeal could be taken from it until its final disposition on August 20, 1996.
¶ 10. Accordingly, we find that the chancellor erred in dismissing the appellants' appeal as untimely. The appeals time frame mentioned in Miss.Code Ann. § 49-27-39 refers to the mailing of a final order of issuance of a permit. Because the order by the Commission that was mailed on August 13, 1996 was up for reconsideration, it was not final and therefore interlocutory. The final order was issued on August 20, 1996.[1] The appellants filed their appeal to the chancellor within thirty days of August 20, 1996, thus satisfying the limitations period.
4. Section 49-27-39 begins the time for appeal from the mailing of the CMR order of issuance of the permit, and CMR failed to mail the permit to Appellants.
¶ 11. Appellants also claim that CMR breached its duty to mail notice of the issuance of the order granting the permit to them, pursuant to Miss.Code Ann. § 49-27-39. It is not clear that the statute was referring to entities objecting to a grant of a permit. Section 49-27-37 identifies the parties entitled to orders in issuance of a permit as those listed in Miss.Code Ann. § 49-27-17, which includes two groups: those parties entitled to receive a copy of such application under Miss.Code Ann. § 49-27-13, and the owners of record of adjacent land and all known claimants to water or riparian rights in or adjacent to the coastal wetlands affected. The appellants have not shown that they are members of either group. Even so, § 49-27-17 explicitly states that failure to notify those two groups of parties of a hearing by the commission would not invalidate any permit granted thereafter. This assignment of error is without merit.
CONCLUSION
¶ 12. We find that because the motion to reconsider was pending before the Department or the Commission, the administrative remedy of the appellants had not been exhausted until that motion had been considered and ruled upon. The chancellor erred in ruling that the appellants' appeal to the chancery court was untimely. Therefore, we reverse the chancellor's ruling and remand this matter to the Chancery Court of Hancock County for proceedings consistent with this opinion.
¶ 13. REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.
PRATHER, C.J., SULLIVAN and PITTMAN, P.JJ., and JAMES L. ROBERTS, Jr., SMITH, MILLS and WALLER, JJ., concur.
BANKS, J., concurs in result only.
NOTES
[1] The heart of the error lies with the Commission, for the permit in this case should not have been issued until reconsideration was complete. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/682476/ | 40 F.3d 215
UNITED STATES of America, Plaintiff-Appellee,v.Marvin Dexter LINNEAR, Defendant-Appellant.
No. 94-1689.
United States Court of Appeals,Seventh Circuit.
Submitted* Sept. 9, 1994.Decided Nov. 16, 1994.
1
Rodney Cubbie (submitted), Office of the U.S. Atty., Milwaukee, WI, for plaintiff-appellee.
2
Richard H. Hart, Milwaukee, WI, for defendant-appellant.
3
Before BAUER, and FLAUM, Circuit Judges, and FOREMAN, District Judge.**
4
FOREMAN, District Judge.
5
Appellant Marvin Dexter Linnear challenges the thirty-year prison term he received after he pled guilty in a cocaine conspiracy. Because we find that the district court correctly calculated the appellant's sentence under the federal Sentencing Guidelines, we affirm the sentence.
I. BACKGROUND
6
The appellant was charged in a three-count indictment which alleged that Linnear and other members of a Los Angeles gang known as the East Coast Crips had conspired to operate various drug houses in Milwaukee, Wisconsin, with drugs shipped in from California. Linnear pled guilty to conspiracy to possess with intent to distribute in excess of five kilograms of cocaine. Based upon the plea agreement, the government dismissed a second count charging Linnear with conspiracy to possess with intent to distribute heroin. He was not charged in the third count.
7
The plea agreement stipulated that for purposes of the Sentencing Guidelines, Linnear's relevant conduct was five to fifteen kilograms of cocaine. Accordingly, the district court found that Linnear's base offense level was 32. The court further found that Linnear qualified for several sentencing enhancements, including a two-level enhancement for possession of a dangerous weapon during the offense; a three-level enhancement for his role in the offense as a manager or supervisor in a criminal activity involving five or more participants; and a two-level enhancement for obstruction of justice. The court rejected Linnear's request for a reduction based upon acceptance of responsibility.
8
Linnear's criminal history included convictions for robbery (arrest on July 13, 1984, with sentencing on August 20, 1984); sale of a controlled substance (arrest on April 16, 1986, with sentencing on June 12, 1986); felon in possession of a firearm (arrest on February 12, 1990, with sentencing on March 19, 1992); felon in possession of a firearm (arrest on August 23, 1990, with sentencing on March 19, 1992); and possession of marijuana for sale (arrest on September 20, 1990, with sentencing on March 19, 1992). Linnear received two criminal history points for the 1984 robbery, two points for the 1986 drug charge and three points for each of the remaining convictions. The total of 13 points established a criminal history category of VI.
9
Linnear attempted to argue that the latter three convictions should be computed as a related offense under Guidelines section 4A1.2(a)(2), which would have given him a total of three points for these convictions rather than nine. Under this calculation, he would have had a grand total of seven points and a criminal history category of IV. The district court rejected this argument, finding that the three convictions had not been consolidated for sentencing, as required under section 4A1.2, Application Note 3. The court noted, however, that this finding was immaterial because Linnear qualified as a career offender under Guidelines section 4B1.1, which provides that "[a] career offender's criminal history category in every case shall be Category VI." Thus Linnear's criminal history category would be VI in any event.
10
Based upon the total offense level of 391 and criminal history category VI, Linnear was subject to a Guidelines range of 360 months to life in prison. The district judge sentenced Linnear to 360 months, with five years of supervised release, a $3,000 fine and a $50 special assessment. The pending appeal challenges the factual basis for the sentencing enhancements as well as the district court's determination that Linnear qualified for career offender status.
II. ANALYSIS
11
We review a sentencing court's factual findings under the Sentencing Guidelines under a clearly erroneous standard. United States v. Delgado, 936 F.2d 303, 306 (7th Cir.1991), cert. denied, --- U.S. ----, 112 S. Ct. 972, 117 L. Ed. 2d 137 (1992). However, where the district court's decision involves an interpretation of the scope of the Guidelines, it is a question of law that is reviewed de novo. United States v. DeCicco, 899 F.2d 1531, 1535 (7th Cir.1990).
12
A. Factual Basis for Sentencing Enhancements
13
The appellant argues that the district court lacked sufficient evidence for its factual findings on the sentencing enhancements. The Guidelines require that a district court's factual findings be supported by a preponderance of the evidence. See United States v. Corbin, 998 F.2d 1377, 1387 (7th Cir.1993), cert. denied, --- U.S. ----, 114 S. Ct. 1124, 127 L. Ed. 2d 432 (1994). The court may rely upon hearsay evidence at the sentencing hearing, but only if such evidence is "reliable" and the defendant has "a reasonable opportunity to rebut [the] contested hearsay...." United States v. Johnson, 997 F.2d 248, 254 (7th Cir.1993).
14
As a preliminary matter, the Court notes that some of the evidence that the district judge considered at sentencing came from the trial of other members of the conspiracy to which Linnear pled guilty. Linnear's counsel objected on the grounds that his client was not a party to that trial and the witnesses were not available at the sentencing hearing for cross-examination. Sentencing Tr. at 30-31. The appellant's brief attempts to renew the objection on appeal but provides no authority that would bar a district court from considering pertinent evidence that was presented at a separate proceeding.
15
To the contrary, this court and others have recognized that evidence presented in another proceeding may be used to determine a defendant's sentence--so long as the defendant has an opportunity "to rebut the evidence or generally cast doubt upon its reliability...." United States v. Coonce, 961 F.2d 1268, 1281 (7th Cir.1992); United States v. Ramirez, 963 F.2d 693, 708 (5th Cir.), cert. denied, --- U.S. ----, 113 S. Ct. 388, 121 L. Ed. 2d 296 (1992); United States v. Ponder, 963 F.2d 1506, 1508 (11th Cir.1992); United States v. Castellanos, 904 F.2d 1490, 1496 (11th Cir.1990); United States v. Beaulieu, 893 F.2d 1177, 1180-81 (10th Cir.), cert. denied, 497 U.S. 1038, 110 S. Ct. 3302, 111 L. Ed. 2d 811 (1990). Those procedural safeguards were followed here. Linnear's presentence report put him on notice of the facts that the district court would consider in relation to the sentence enhancements. In response to Linnear's objections to the presentence report, the district court stated that the factual findings were supported by testimony presented in the trial of Linnear's co-conspirators. Linnear then had an opportunity to rebut the evidence or to challenge its reliability.
16
Having given Linnear this opportunity, the district court was free to consider the evidence that it determined to be reliable. Therefore, we turn to Linnear's challenges to the reliability of specific items of evidence.
17
1. Enhancement for Possession of a Dangerous Weapon
18
The appellant argues that the district court erred in enhancing his sentence under section 2D1.1(b)(1) of the Guidelines, which provides that "[i]f a dangerous weapon (including a firearm) was possessed, increase [the base offense level] by 2 levels." United States Sentencing Commission, Guidelines Manual Sec. 2D1.1(b)(1). The Guidelines commentary states that this enhancement "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." Id. Sec. 2D1.1(b)(2) comment. (n. 3).
19
The district court's finding on this issue was based upon testimony from Charles Shaw, the government's key witness in the prior trial involving Linnear's co-conspirators. Shaw asserted that he had walked into a residence where Linnear was packaging two kilograms of cocaine and that Linnear pulled a handgun on Shaw but put it away when he recognized him.
20
Linnear contends that the district court should not have relied upon Shaw's statements because defense counsel had cast doubt on Shaw's credibility by showing that he had been given immunity from prosecution, that he had gotten out of problems with law enforcement officials when government agents intervened on his behalf, and that he was less than accurate on his facts. The appellant argues that there is no corroboration for Shaw's testimony from any source and, therefore, the finding regarding the gun was not supported by a preponderance of the evidence.
21
This circuit, however, "has never held that corroboration is essential in sentencing." United States v. Atkin, 29 F.3d 267, 268 (7th Cir.1994). "[C]orroboration is a step toward, but no guarantee of, reliability. Sometimes the corroboration is illusory; sometimes hearsay is rock solid without corroboration." Id. In this case, the district judge had an opportunity to observe Shaw testify in the earlier proceeding and to consider his testimony in the context of all of the evidence regarding the conspiracy.2 Because Shaw's statements regarding other aspects of the conspiracy were corroborated by other witnesses, the district court could properly find that his testimony regarding the gun was also reliable despite the fact that it was uncorroborated.
22
Although Shaw has received certain benefits for testifying for the government, that fact alone does not render his testimony unreliable. "[W]e have made clear on several occasions that at sentencing the 'testimony of one witness, even one arguably biased against the defendant, is sufficient to support a finding of fact.' " United States v. Lindsey, 30 F.3d 68, 70-71 (7th Cir.1994) (quoting United States v. Cedano-Rojas, 999 F.2d 1175, 1180 (7th Cir.1993)). "[S]o long as the information which the sentencing judge considers has sufficient indicia of reliability to support its probable accuracy, the information may properly be taken into account in passing sentence." United States v. Lueddeke, 908 F.2d 230, 234 (7th Cir.1990) (quoting United States v. Miller, 891 F.2d 1265, 1270 (7th Cir.1989)).
23
Linnear's attempts to portray Shaw's testimony as inaccurate are unpersuasive. Linnear first points to Shaw's statement that Linnear had paid him $500 for various dealings and that Linnear had given him $500 within a few days after August 25, 1990. Linnear argues that the statement is untrue because jail and court records show that Linnear was arrested on August 23, 1990, and not released until August 29, 1990. Thus he contends that he could not possibly have made the payment at the time described by Shaw. However, Shaw's statement was not that the payment was made on August 25, 1990; rather, he stated that the transaction occurred a few days after that date. If the payment was made soon after Linnear's release on bond, that transaction would still be within a few days after August 25, 1990. Thus, the jail records do not refute Shaw's testimony.
24
Linnear also argues that Shaw incorrectly stated that Linnear had operated a drug house at 12th and Center street in Milwaukee. During the sentencing hearing, the government conceded that Shaw was not the actual operator of the house. However, Linnear admitted that he supplied drugs to the person who did operate the house. In short, Shaw's characterization of Linnear's involvement was not entirely accurate. However, this minor discrepancy does not undermine the overall reliability of Shaw's testimony linking Linnear to the drug house--much less the reliability of his testimony regarding Linnear's possession of a gun.
25
Significantly, Linnear failed to present any evidence or testimony on this issue other than his own statement denying that he had a gun as alleged by Shaw. Although the district court characterized the witnesses as "two liars," the court ultimately determined that Shaw was more credible. The district court indicated that it was familiar with Shaw, having heard him testify in the previous case. The court further found that Linnear's credibility was nil because he had written a letter to a potential witness which the court construed as an attempt to suborn perjury.3
26
"Special deference must be accorded to the lower court's credibility determinations because 'only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.' " United States v. Hamm, 13 F.3d 1126, 1129-30 (7th Cir.1994) (quoting Matter of Weber, 892 F.2d 534, 538 (7th Cir.1989)). Based upon the trial court's observation of the witnesses and its knowledge of the conspiracy as a whole, we cannot say that the court's credibility determination in favor of Shaw was clearly erroneous.2. Defendant's Role in the Offense
27
The appellant argues that the district court erred in enhancing his sentence for his role in the offense pursuant to Guidelines section 3B1.1(b), which provides for a three-level increase "[i]f the defendant was a manager or supervisor (but not an organizer or leader) and the criminal activity involved five or more participants or was otherwise extensive...." U.S.S.G. Sec. 3B1.1(b). Under the terms of the plea agreement, the government made no recommendation regarding an enhancement under this provision at the time of sentencing, but argues on appeal that the district court's decision is amply supported by the record.
28
In finding that the enhancement was warranted, the district court relied upon Alcohol, Tobacco and Firearms Agent Scott Perala's statement that Linnear had supervised seven individuals in the conspiracy. Linnear denied the allegation and argues that there is no corroborating evidence to support Perala's statement. Thus, Linnear contends that Perala's allegation cannot be shown to be reliable.
29
The district court, however, found that Perala's statement was supported by the totality of evidence presented at the sentencing hearing and at the prior trial involving the co-conspirators. As the district judge observed: "[T]he testimony is replete with references to his role in terms of supplying, in terms of directing, in terms of paying, and I am also satisfied that he was a leader of the 118th Street East Coast Crips and that he remained in charge of the conspiracy as an ultimate leader even though he was incarcerated in California." Sentencing Tr. at 45.
30
Linnear made no attempt to rebut or otherwise challenge the reliability of the evidence presented during the prior trial. Accordingly, we find that the district court's finding regarding Linnear's role in the offense is not clearly erroneous.
3. Obstruction of Justice
31
Guidelines section 3C1.1 provides for a two-level increase in a defendant's base offense level "[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense...." U.S.S.G. Sec. 3C1.1. The district court found this enhancement applicable based upon allegations that (1) Linnear sent a letter soliciting false testimony from potential witness Brandon Arnold, a Crip gang member who was incarcerated in a California prison for murder; and (2) Linnear attempted to escape from the Waukesha County Jail while being detained there pending trial.
32
Linnear argues that there was insufficient evidence to support either factual finding. He admits that he wrote the letter to Arnold and that he was trying to prepare Arnold for his anticipated testimony. However, he contends that the district court overreacted in viewing the letter as an attempt to solicit perjury.
33
To the contrary, even a cursory review of the document indicates that the district court's assessment was not clearly erroneous. For example, the letter states that "I am tring [sic] to put this move in motion and I need you to throw down with me in this move that I am tring [sic] to Orchestrate." It then goes on to give Arnold detailed instructions as to how he should testify when asked various questions about Linnear and other aspects of the drug conspiracy. The letter then states that "if this shit go through right, then I can get up out of here. And if I do, I will make sure you get up out of there you know. Even If I have to go and find that fool that lived on Imperial and give him $20,000 to change his whole story, and say that homicide told him to say that shit, you know."
34
Linnear contends that the letter cannot constitute obstruction of justice because Arnold never testified in the case and, therefore, did not commit perjury. The appellant, however, fails to recognize that section 3C1.1 of the Guidelines clearly punishes "attempts to obstruct justice as well as actual obstruction of justice." United States v. Caicedo, 937 F.2d 1227, 1235 (7th Cir.1991) (quoting United States v. Gaddy, 909 F.2d 196, 199 (7th Cir.1990) (emphasis in original) (internal quotation marks omitted)).
35
As for the escape attempt, the government made an offer of proof that during a shakedown at the jail, a jailer saw Linnear throw a toothbrush box in a garbage can in his cell. The box was retrieved, and authorities found a hacksaw blade inside. Further investigation revealed a metal heating grate at the back of Linnear's cell had been hacksawed on all soldering joints.
36
Linnear denied being involved in any escape attempt but declined further comment because of possible criminal prosecution and failed to present any other evidence to rebut the government's allegation. In fact, Linnear's counsel stated that he had no basis to contest the government's offer of proof. His only argument is that the government's evidence, while suggestive, was not sufficient for the court to find by a preponderance of the evidence that Linnear was engaged in an escape attempt. Based upon the government's offer of proof, however, we find that the district court's conclusion was not clearly erroneous.
37
The Guidelines commentary states that the obstruction enhancement is warranted for "committing, suborning, or attempting to suborn perjury" and "escaping or attempting to escape from custody before trial or sentencing...." U.S.S.G. Sec. 3C1.1 comment. (n. 3(b), (e)). Having found that Linnear engaged in both types of conduct, the district court correctly assessed a two-level enhancement against Linnear under this provision.
4. Acceptance of Responsibility
38
The appellant argues that he should have been given credit for acceptance of responsibility under Guidelines section 3E1.1. The district court, however, denied the reduction based upon allegations that Linnear tried to minimize his involvement in the conspiracy and tried to escape from custody.4
39
At the outset we note that Linnear objected to the reference to the escape attempt in this section of his presentence report because he was already subject to an enhancement under section 3C1.1 for this conduct. The Guidelines commentary suggests that there is some merit to this argument. See U.S.S.G. Sec. 3E1.1 comment. (n. 4) ("Conduct resulting in an enhancement under Sec. 3C1.1 ... ordinarily indicates that the defendant has not accepted responsibility for his criminal conduct. There may, however, be extraordinary cases in which adjustments under both Secs. 3C1.1 and 3E1.1 may apply."). But the appellant did not argue the issue in his brief on appeal and, therefore, has waived it.
40
Moreover, we find ample support for the district court's conclusion that Linnear attempted to minimize his role in the offense. As discussed above, the district court found that Linnear falsely denied possessing a gun while engaged in a drug offense and falsely denied that he had a supervisory role in the organization. The district court also rejected other meritless objections Linnear raised to the presentence report's description of his conduct in the conspiracy.
41
"[A] defendant who falsely denies ... relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility." United States v. Rosalez-Cortez, 19 F.3d 1210, 1219 (7th Cir.1994) (quoting U.S.S.G. Sec. 3E1.1, comment. (n. 1(a))). We find, therefore, that the district court was not clearly erroneous in concluding that the defendant had attempted to minimize his role and was not entitled to a reduction for acceptance of responsibility.
42
B. Application of the Career Offender Provision
43
The appellant contends that the district court erred in applying the career offender provision in section 4B1.1 of the Sentencing Guidelines, which states that:
44
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
45
U.S.S.G. Sec. 4B1.1.
46
The appellant first challenges the fact that the Guidelines commentary states that the term "controlled substance offense" includes "the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. Sec. 4B1.2 comment. (n. 1). The appellant cites the case of United States v. Price, 990 F.2d 1367 (D.C.Cir.1993), for the proposition that the Sentencing Commission exceeded its authority by including conspiracy within the statutory definition of a controlled substance offense. However, another panel of this court very recently rejected Price and followed several other circuits in holding that the Sentencing Commission did in fact have authority to include conspiracy offenses under the career offender provision. United States v. Damerville, 27 F.3d 254, 256-57 (7th Cir.1994). Linnear has given us no reason to reconsider the well-reasoned decision in Damerville. We, therefore, find that section 4B1.1 applies to Linnear's conspiracy conviction.
47
The appellant next argues that he lacks the requisite prior felony convictions to qualify as a career offender. He acknowledges that his criminal history includes two adult5 felonies involving controlled substances: the April 1986 sale of narcotic controlled substance and the September 1990 possession of marijuana for sale. However, he contends that only the first of those convictions occurred prior to the instant offense. This argument is based upon the fact that the indictment for the pending offense charged that the conspiracy existed from January 1, 1988, to August 25, 1992. Linnear argues that he was not sentenced for the 1990 offense until March 1992. Thus, in his view, his only "prior" conviction was on the 1986 charge.
48
This argument fails to recognize that section 4A1.2(a)(1)6 defines the term "prior offense" to mean "any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendre, for conduct not part of the instant offense." U.S.S.G. Sec. 4A1.2(a)(1). The Guidelines commentary further states that "[a] sentence imposed after the defendant's commencement of the instant offense, but prior to sentencing on the instant offense, is a prior sentence if it was for conduct other than conduct that was part of the instant offense." Id. Sec. 4A1.2, comment. (n. 1). Linnear has presented no evidence that his conviction on the 1990 offense was in any way related to his conviction in the instant case. Thus, by the terms of section 4A1.2(a)(1) and its application notes, the appellant's argument must fail.
49
The appellant also argues that his 1990 drug conviction and the convictions on the two 1990 firearms charges should be counted as one offense because they were consolidated for plea and sentencing on March 19, 1992. This argument has no bearing on Linnear's status as a career offender, however, because Linnear would have the requisite two felonies even if the 1990 offenses were considered as one offense.7 His argument could have a bearing on the calculation of his criminal history category under Sec. 4A1.1. But as the district court pointed out, this calculation would be immaterial because the career offender provision establishes a mandatory criminal history category of VI. See Sec. 4B1.1. Thus, even if Linnear's criminal history category was IV under Sec. 4A1.1, that determination would be superseded by the category VI mandated by Sec. 4B1.1.8
50
In sum, we conclude that the district court correctly calculated Linnear's criminal history category at VI regardless of whether it is determined under the criminal history provisions of Sec. 4A1.1 or under the career offender provision in Sec. 4B1.1.
III. CONCLUSION
51
For the foregoing reasons, appellant Marvin Dexter Linnear's thirty-year sentence is hereby
52
AFFIRMED.
*
This case was submitted to the panel on the briefs after the parties' joint motion to waive oral argument was granted
**
Hon. James L. Foreman, of the Southern District of Illinois, is sitting by designation
1
The career offender provision establishes an offense level of 37 for crimes carrying a maximum prison term of life in prison, as is the case here. United States Sentencing Commission, Guidelines Manual Sec. 4B1.1. However, this offense level applies only if it "is greater than the offense level otherwise applicable...." Id. Based upon the base offense level of 32 with enhancements for use of a dangerous weapon, obstruction of justice, and a supervisory role in the offense, the district court calculated Linnear's total offense level at 39. Section 4B1.1 provides that this higher figure be used instead of the presumptive level 37 that would otherwise be applicable under Sec. 4B1.1
2
The record suggests, for example, that the house where Shaw says he encountered Linnear with the gun was occupied by a coconspirator, Carolyn Ward, and that drugs were distributed out of that location. The record also indicates that several handguns were recovered from various other members of the conspiracy. This evidence does not directly corroborate Shaw's statement that Linnear himself possessed a gun, but shows that Shaw's statement is consistent with the other evidence in the case
3
The district court's finding with respect to this letter is discussed in more detail below
4
The presentence report also referred to an alleged attempt by Linnear to get fellow inmates to help assault a guard at the county jail. The district court did not consider this allegation in making its determination
5
The Guidelines commentary states that the term " 'prior felony conviction' means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed." U.S.S.G. Sec. 4B1.2 comment. (n. 3)
6
The application notes state that the provisions of Sec. 4A1.2 "are applicable for the counting of convictions under Sec. 4B1.1." U.S.S.G. Sec. 4B1.2, comment. (n. 4)
7
In fact, the firearms convictions do not constitute an applicable felony under the career offender provision because Sec. 4B1.1 refers to prior felony convictions for "either a crime of violence or a controlled substance offense." U.S.S.G. Sec. 4B1.1. The application notes state that the term " 'crime of violence' does not include the offense of unlawful possession of a firearm by a felon." Id. Sec. 4B1.2 comment. (n. 2)
8
Linnear's argument is without merit in any event. Guidelines section 4A1.2(a)(2) provides that "[p]rior sentences imposed in related cases are to be treated as one sentence for purposes of Sec. 4A1.1(a), (b), and (c)." Id. Sec. 4A1.2(a)(2) (emphasis added). The Guidelines commentary explains that "prior sentences are considered related if they resulted from offenses that (1) occurred on the same occasion, (2) were part of a single common scheme or plan, or (3) were consolidated for trial or sentencing." Id. Sec. 4A1.2, comment (n. 3). However, the commentary explicitly states that "[p]rior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)." Id. Thus, even assuming that Linnear's 1990 charges were consolidated for plea and sentencing, they cannot be considered as related offenses because they were separated by intervening arrests | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2607625/ | 783 P.2d 641 (1989)
CONTINENTAL INSURANCE, Fireman's Fund Insurance Company; St. Paul Insurance Company; Royal Insurance Company; Centennial Insurance Company; and American Home Insurance Company, Appellants (Plaintiffs),
v.
PAGE ENGINEERING COMPANY, Does I-X, inclusive, Appellees (Defendants).
No. 87-295.
Supreme Court of Wyoming.
December 5, 1989.
*642 Vincent J. Horn, Jr., Cheyenne, and Larry D. Henson, Henson & Henson, San Francisco, Cal., for appellants.
Gary M. Greenhalgh, Greenhalgh, Bussart, West & Rosetti, Rock Springs, and John H. Anderson, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for appellees.
Before CARDINE, C.J., THOMAS, URBIGKIT, and MACY, JJ., and BROWN, J., Retired.
THOMAS, Justice.
The essential determination that the court must make in this case is whether tort theories may be invoked by a purchaser of a product in an instance in which the failure of the product causes damage only to the product that failed (economic loss in the parlance of the authorities). An additional issue is raised questioning the propriety of the entry of a summary judgment in favor of the seller when the buyer asserts that a genuine issue of material fact exists concerning the contractual duties owed by the seller to the buyer. The parties also have argued the applicability of the law relating to an insurance company acting as a volunteer in the payment of the claim for insurance proceeds filed by the buyer. The trial court ruled that the complaint of Continental Insurance, Fireman's Fund Insurance Company, St. Paul Insurance Company, Royal Insurance Company, Centennial Insurance Company, and American Home Insurance Company (Appellants collectively referred to as Continental) failed to state a claim in those counts asserting negligence, strict liability, or failure to warn against Page Engineering (Page) because the only damages asserted were the economic loss to Bridger Coal (Bridger), the buyer of the product. With respect to contractual claims that were asserted, the trial court found that the contract was not ambiguous and that Page's duties expired long before any cause of action accrued. In addition, the district court ruled that Continental was a volunteer with respect to its payment of Bridger's insurance claim. We hold that the trial court correctly ruled that Continental's claims of negligence, strict liability, and failure to warn do not state a claim upon which relief can be granted. We are in accord with the district court's ruling that Page had no existing duty under the contract that related to Bridger's loss in this case. Given those determinations, the question of whether Continental acted as a volunteer in paying Bridger's claims for insurance is moot, and we need not address it. We affirm the trial court's entry of summary judgment in favor of Page, recognizing that, in substance, the judgment constituted a dismissal with prejudice of the claims for relief under tort theories and was a true summary judgment with respect to claims based upon breach of an express or implied contract.
This case arose out of the failure of a reeving block on a very large dragline that Bridger had purchased from Page. A break in the reeving block caused the 100 yard long boom to separate from the rest of the dragline structure and, when it fell, the boom was destroyed. Continental paid Bridger for its damages, which were caused by the collapse of the dragline, and then sought to recover from Page asserting its rights as a subrogee of Bridger.
In the Appellants' Brief, Continental sets forth five primary issues to be addressed, each of which encompasses several sub-issues and arguments. Those are stated as:
*643 "A. Whether a district court in treating a Wyoming Rules of Civil Procedure Rule 12(B)(6) motion to dismiss as a summary judgment motion may make factual assumptions as to the type of loss, cause of loss, and insurance coverage for the loss; deny plaintiff the right to conduct further discovery; and then grant summary judgment to defendant on the basis of the assumed type of loss, cause of loss, and insurance coverage?
"B. Whether a manufacturer who sells heavy machinery in Wyoming and later discovers that one component of said machinery has a correctable unreasonably dangerous defect may escape liability for `negligent failure to warn' under the `economic loss' doctrine when the dangerously defective component fails in a foreseeable manner and destroys a non-defective component of the machinery?
"C. Whether the `economic loss' limitation on product liability actions should entirely preclude a product liability action which sounds in negligence or strict liability where an unreasonably dangerous defective component of a product fails in a foreseeable manner and destroys a non-defective component?
"D. Whether the district court may make factual assumptions as to cause of loss and based thereon enter summary judgment that the loss was not covered by insurance and thus that insurers are not entitled to subrogation?
"E. Whether any continuing obligation should be implied under a contract for sale of heavy machinery where, after the sale, the manufacturer continues to conduct technical, training and assistance visits to the jobsite; and, if there is no such continuing obligation, whether discovery should be allowed to ascertain the obligations and requirements understood by the manufacturer or imposed by industry custom and practice as to the subsequent visits to the jobsite?"
Page Engineering, in its Brief of Appellee, states the issues presented in this way:
"I. Whether the trial court properly applied the economic loss doctrine, which is cited with approval by the Wyoming Supreme Court and is the controlling law in a clear majority of jurisdictions, to enter summary judgment for appellee on appellants' tort claims (Counts I, II, IV-VI) which seek to recover only for loss to the dragline boom?
"II. Whether any finding of fact was necessary to the district court's award of summary judgment for appellee as a matter of law?
"III. Whether the courts recognize an exception to the doctrine approved by the United States Supreme Court in the East River decision denying recovery for economic loss (damage to the product itself) when the failure of one component of a product damages another component?
"IV. Whether the economic loss doctrine bars strict liability claims for damage to the product itself?
"V. Whether the economic loss doctrine bars claims for negligent failure to warn?
"VI. Whether the trial court properly awarded summary judgment for appellee on appellants' claim for breach of contract for failure to maintain insurance (Count III), negligent failure to maintain insurance (Count IV) and express indemnity (Count V) where the clear and unambiguous language of the 1974 agreement, the only contract relied on by appellants in the record, provides that appellee's duties to Bridger lapsed under the 1974 agreement eight years before the collapse of the dragline?
"VII. Whether the trial court properly denied appellants' motion for continuance of discovery where appellants only sought discovery of facts to establish their theory of failure to warn and the trial court had already found this theory legally insufficient?
"VIII. Whether the trial court properly awarded summary judgment for appellee because appellants were not entitled to subrogation since appellants admitted that the loss to the dragline was due to a latent defect in the dragline and recovery for loss due to a latent defect was excluded from coverage under appellants' insurance policy."
*644 In 1974, Bridger commenced negotiations with Page to purchase a dragline, to be used in its open pit mining operations in Wyoming, which Page would manufacture. Those negotiations culminated in a Purchase Contract which demonstrates a carefully negotiated and prepared agreement of the parties with respect to the responsibilities of both the buyer and the seller. That Purchase Contract provided for integration with a merger clause, which stated:
"This Purchase Contract, including these terms and conditions, the specifications attached hereto and any additional terms and conditions incorporated in and attached hereto constitutes the sole and entire agreement between the parties. The Seller's proposal is incorporated in and made a part of this Purchase Contract only to the extent of specifying the nature and description of the Equipment ordered, and then only to the extent that such terms are consistent with the terms of this Purchase Contract. No other items or conditions shall be binding upon Buyer unless accepted by it in writing."
In paragraph ten of the purchase agreement, Page's warranty of the dragline was set forth in this language:
"Seller warrants that the Equipment and all parts thereof shall be free from defects in design, material, workmanship and title, and shall conform in all respects to the terms of this Purchase Contract, and, if no quality is specified, shall be of the best quality consistent with the nature and type of equipment usual and customary for draglines. If within one (1) year from (a) the date that the equipment is available for commercial operation (capable of stripping overburden) or (b) thirty (30) days after the date the dragline first walks, whichever is earlier, the Equipment, or any part thereof, does not conform to these warranties, and Buyer shall have notified the Seller within a reasonable time after its discovery of such nonconformity, Seller shall thereupon promptly correct such nonconformity at its sole expense. The conditions of any subsequent tests shall be mutually agreed upon and Seller shall be notified of and may be represented at all tests that may be made. In the event that the Equipment or any component parts are replaced pursuant to this warranty, such replacement Equipment and parts shall be warranted and guaranteed as provided herein for a period of one (1) year after such replacement and acceptance thereof by Buyer. The Seller shall not be liable hereunder for any damages as defined and excluded in paragraph 6.0 of this contract [relating to consequential or special damages] nor shall Seller be responsible under any breach of this warranty for any injury to any person proximately resulting from the breach of this warranty. THIS WARRANTY IS THE ONLY WARRANTY MADE AND THERE ARE NO OTHER WARRANTIES OR GUARANTEES, EXPRESSED OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR PARTICULAR USE."
The contractual duties which Continental contends were not performed by Page are found in paragraphs eighteen, nineteen, and twenty of the Purchase Contract. According to paragraph eighteen, Page would furnish consultants during the erection, which was defined to terminate when the dragline became operable, and for a period not in excess of sixty days after completion of the erection of the dragline. In paragraph nineteen, Page agreed to "continuously carry" insurance on the dragline in the amount of one million dollars "to protect against and from all loss by reason of injury to persons or damage to property including Seller's own employees and third persons, and property of Buyer and third parties, based upon or arising out of Seller's operations hereunder including the operations of his subcontractors or sub-subcontractors." In paragraph twenty, Page agreed that it would indemnify Bridger for any "damage to or destruction of property" of Bridger's "resulting from, arising out of, or in any way connected with Seller's operations hereunder at the job site, excepting only such injury or harm as may be caused solely by the fault or negligence of Buyer, its directors, officers, employees or agents."
*645 In accordance with, and in performance of, the Purchase Contract, Page delivered the dragline to Bridger and placed it in operation by March of 1978. While words may be inadequate to describe this gigantic machine, some idea of its size and function can be gleaned from Page's brief. It is there explained that:
"* * * The dragline has a boom 100 yards long from which is suspended a bucket capable of holding 50 to 75 cubic yards of material. The bucket scoops up material as it is dragged along the ground. The bucket is then lifted by the boom and the entire dragline, including the housing and boom, then turns so that the contents of the bucket may be dropped into a spoil pile. The dragline then turns back to its original position, the bucket is dropped and dragged again, and the procedure is repeated. The dragline is moved to a new position by `walking' on large legs attached to its sides.
"The reeving block is a large steel `pulley' through which steel cables pass from a mast to the dragline housing. Other lines run from the mast to the tip of the boom to support the boom. Engines in the housing are used to raise the boom during erection by tightening the lines which pass through the reeving block. After erection of the boom, static lines are attached to the sides of the reeving block to hold the mast and boom in position."
This dragline was used by Bridger in its mining operations, without any apparent complaints, from 1978 until March of 1983. Then Bridger notified Page of several problems that it was experiencing with the machine. One of those complaints related to the reeving block. Bridger had noticed some cracking in that part of the dragline. According to Continental's brief, Bridger had observed the cracking earlier and had welded it. The record supports only a reference in a letter from Page to Bridger referring to a notification by Bridger to Page of cracking in the reeving block in a letter dated March 30, 1983.
Bridger requested Page to send personnel to the mine site to inspect the dragline, and Page did that. After completing the inspection, Page sent Bridger a letter which related Page's findings and recommendations. The letter includes advice by Page to Bridger that many of the problems were attributable to improper use and maintenance of the dragline. Specifically with respect to the cracking in the reeving block, Page suggested that those cracks be welded properly. There is no claim by Continental that Page was responsible for accomplishing any of these suggested corrections, and there is no evidence or allegation that Page performed any of the suggested repairs for Bridger.
In the same month, March of 1983, Page instructed its company engineers to design a reeving block model that would support a greater stress load. Officers of Page stated that this was sheer coincidence because the modifications were requested in response to a purchase order for a dragline that would be required to tolerate greater stress conditions than those of draglines previously manufactured and sold, including the dragline furnished to Bridger. Several structural changes were made in the design of the reeving block that permitted the boom to apply a straight pull on the load. The new design also employed a thicker gauge of steel, providing greater "impact properties in cold weather." Continental, in this action, alleged that the redesign developed not only a more durable reeving block, but a safer one as well, and Continental claims that Bridger should have been told of its availability. It is clear that Page did not advise any of its prior purchasers of the redesign of the reeving block, nor did it recommend to Bridger that it should, or could, replace the reeving block on Bridger's dragline with the redesigned model.
On February 24, 1986, the reeving block on the Bridger dragline broke at one of the previously welded cracks. Continental alleged that the break in the reeving block caused the boom to separate from the housing of the dragline resulting in destruction of the boom with damages in excess of $2,500,000. After learning of the collapse *646 of the Bridger dragline, Page notified other purchasers of its draglines that they should inspect their "super-structure system" for possible cracking. Several purchasers responded that they had observed cracking in the reeving blocks on their draglines. Page's response to that advice was to recommend to those companies that they replace their reeving blocks with the reeving block model designed in 1983.
After the destruction of the boom on its dragline, Bridger filed a claim with Continental for the damages it had suffered. Continental paid Bridger's claim, and it then filed its complaint in the district court seeking to recover from Page for any cause of action that Bridger could have brought against Page on the ground that Continental was subrogated to Bridger's claims. Continental's complaint set forth five claims for recovery that included theories of negligent design of the reeving block, negligent failure to warn Bridger of the redesign of the reeving block, breach of contract for failure to maintain insurance on the dragline, negligent failure to maintain insurance, and express indemnification. Page answered Continental's complaint, and Page and Continental began to pursue discovery.
Approximately one year later, on July 16, 1987, Page filed a Motion to Dismiss and to Stay Proceedings Pending Disposition of This Motion, pursuant to Rule 12(b)(6), W.R.C.P., asserting that (1) an action in tort to recover only economic loss fails to state a cause of action; (2) any contractual duties which Page might have been responsible for under the 1974 contract had ended at least eight years before the collapse of the Bridger dragline; and (3) Continental was a volunteer in making its payment to Bridger, thereby preventing any claim of Continental to a right of subrogation because the policy which Continental had written for Bridger did not cover the type of damage experienced by the dragline. Continental then filed an Opposition to Defendant's Motion to Dismiss in which it argued that the economic loss doctrine did not apply to a cause of action which alleged a failure to warn or to any cause of action which alleged negligence because the defect in the product created an unreasonably dangerous condition. In addition, Continental contended that Page's contractual duties extended beyond the warranty period in the Purchase Contract so that Bridger's claim was covered by the policy or that, in the alternative, Continental had paid Bridger's claim in good faith believing that the claim was covered. Continental therefore asserted that it did have a right of subrogation to any claim Bridger could have brought against Page. Continental also filed a Motion for Leave to File Amended and Supplemental Complaint seeking to amend its complaint by supplementing it to include an additional cause of action for strict products liability.
The district court then furnished to the parties a decision letter in which the court stated that it intended to treat the Motion to Dismiss filed by Page as a motion for summary judgment and that it would allow Continental two weeks to either approve of or object to the court's proposed action. Continental did not file an objection, but it did file a Motion for Continuance of Discovery in which it was asserted that additional time was necessary to develop its argument that Page should be held strictly liable in tort due to the unreasonably dangerous condition created by the defect in the reeving block. After additional briefing, the trial court entered an order denying Continental's motion for additional discovery time and its motion to amend the complaint to add an additional claim of strict product liability. The court then entered a Summary Judgment for Page with respect to all pending claims.
Initially, Continental asserts that the district court erred in granting summary judgment because of the existence of genuine issues of material fact relating to the cause of Bridger's damages. Continental quotes language from the decision of the district court that suggests a finding that the damage to the reeving block, which in turn caused the collapse of the boom, was a gradual deterioration caused by a latent defect. It is Continental's contention that such a finding was prejudicial because several courts have distinguished between *647 damages caused by gradual deterioration and those caused by a catastrophic event and also because its insurance policy excluded latent but not patent defects. Continental continues its argument by urging that the error was exacerbated by the district court's denial of its motion to continue discovery to permit it to develop facts showing that the damage of the dragline was not due to gradual deterioration but was, instead, a catastrophic event.
In a prior case, we reversed the decision of the district court granting a summary judgment prematurely and denying reasonable time for the parties to conduct their desired discovery. Pace v. Hadley, 742 P.2d 1283 (Wyo. 1987). It was clear in Pace that the decision of the trial court to convert the defendant's motion to dismiss into a motion for a summary judgment, without giving sufficient notice to the parties and without allowing a reasonable opportunity for discovery, resulted in prejudice to the rights of the parties. We do not retreat from, or diminish, the stance we took in Pace. We continue to recognize the necessity of affording parties adequate time for discovery before a motion for summary judgment may be granted. The difference in this case is that, because of the rule of law followed by the district court, which we espouse, affording an opportunity for additional discovery would be an exercise in futility and would serve only to increase the expense of litigation to the parties.
The recognized majority rule is that a claim for pure economic loss (the damage is only to the defective product) does not lie on a theory of negligence or strict liability. East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986); Aloe Coal Company v. Clark Equipment Company, 816 F.2d 110 (3d Cir.1987), cert. denied 484 U.S. 853, 108 S. Ct. 156; 98 L. Ed. 2d 111 (1987); Hart Engineering Company v. FMC Corporation, 593 F. Supp. 1471 (D.R.I. 1984); Spring Motors Distributors, Inc. v. Ford Motor Company, 98 N.J. 555, 489 A.2d 660 (1985). See also Buckley v. Bell, 703 P.2d 1089 (Wyo. 1985) (recognizing the majority rule). This rule is founded on solid policy justifications. The concern of tort law in the area of products liability has focused on the need to protect the purchaser or consumer, who often is not in a position to withstand the financial impact if he, or his property, is damaged by a defective product. The social need to spread the resulting, and often catastrophic, losses across a spectrum of consumers thus increasing the cost of the product is, however, substantially lessened when the injury is only to the product itself. Furthermore, this kind of loss relates essentially to the purchaser's benefit of the bargain which has been made between himself and the seller. The authorities recognize that the law of contracts is far better suited to deal with the dissatisfaction on the part of a purchaser under such circumstances.
"Contract law, and the law of warranty in particular, is well suited to commercial controversies of the sort involved in this case because the parties may set the terms of their own agreements. The manufacturer can restrict its liability, within limits, by disclaiming warranties or limiting remedies. See U.C.C. §§ 2-316, 2-719. In exchange, the purchaser pays less for the product. Since a commercial situation generally does not involve large disparities in bargaining power, cf. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960), we see no reason to intrude into the parties' allocation of the risk." East River, 476 U.S. at 873, 106 S. Ct. at 2303.
In addition, we are in accord with those courts that have concluded it is unwise to intrude, without more justification, into the remedies that legislatures have chosen and which have been provided by the adoption of Article 2 of the Uniform Commercial Code Sales. Sections 34-21-201 through XX-XX-XXX.5, W.S. 1977. See Sacramento Regional Transit District v. Grumman Flxible, 204 Cal. Rptr. 736, 158 Cal. App. 3d 289 (Cal. App. 3 Dist., 1984); Clark v. International Harvester Company, 99 Idaho 326, 581 P.2d 784 (1978).
Continental argues vigorously that this court should not espouse the majority rule, but should, instead, adopt the rationale of those courts that permit recovery of economic *648 damages for damage to the product itself when the damage is caused by a sudden, calamitous event that creates an unreasonably dangerous condition. Those courts which have recognized a distinction between loss caused by gradual deterioration and loss caused by a sudden, catastrophic event producing an unreasonably dangerous condition generally relate the latter situation as being more akin to property than to economic damage. See Pennsylvania Glass Sand Corporation v. Caterpillar Tractor Company, 652 F.2d 1165 (1981); Kodiak Electric Association, Inc. v. Delaval Turbine, Inc., 694 P.2d 150 (Alaska 1984), reh. denied 696 P.2d 665 (1985); Arrow Leasing Corporation v. Cummins Arizona Diesel, Inc., 136 Ariz. 444, 666 P.2d 544 (1983); Roxalana Hills, Ltd. v. Masonite Corp., 627 F. Supp. 1194 (S.D.W.Va. 1986), aff'd 813 F.2d 1228 (1987). The Supreme Court of the United States, in a unanimous opinion, found such a distinction not to be persuasive:
"* * * We realize that the damage may be qualitative, occurring through gradual deterioration or internal breakage. Or it may be calamitous. [Citations]. But either way, since by definition no person or other property is damaged, the resulting loss is purely economic. Even when the harm to the product itself occurs through an abrupt, accident-like event, the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to recover the benefit of its bargain traditionally the core concern of contract law. See E. Farnsworth, Contracts Section 12.8, pp. 839-840 (1982)." East River, 476 U.S. at 870, 106 S. Ct. at 2301.
After the Supreme Court articulated its resolution of this issue, the United States Court of Appeals for the Third Circuit reexamined the wisdom of its decision in Pennsylvania, in which that court had held that tort principles could be invoked in an action seeking recovery for damage to the defective equipment when the defect resulted in a hazardous condition and the loss flowing from the defect was caused by an accident that was a sudden and catastrophic event. In that case, the court predicted that the rule ultimately adopted in Pennsylvania would be consistent. In Aloe, however, the court determined that, by applying the concepts of East River, "a murky trudge through sophisticated nuances gives way to an unencumbered flight to basics." Aloe, 816 F.2d at 119. The court then held that tort principles could not be invoked if the only damage was harm to the defective product. See also Wisconsin Power & Light Company v. Westinghouse Electric Corp., 645 F. Supp. 1129 (W.D.Wis. 1986). In his treatise, Professor Keeton also advises against the adoption of a rule that attempts to distinguish "accidental" damage to a product from the pure economic loss:
"Making liability depend upon whether or not the loss results from an `accident' creates a difficult issue and arguably an irrelevant issue with respect to the validity of contract provisions allocating a risk of loss for harm to the defective product itself to the purchaser. Distinguishing `accidental' damage to the product from mere economic loss is difficult in many cases, such as defect in a component of a television set that burns out the tubes, or an electric connection to the engine of a refrigerator that destroys the engine." W. Keeton, Professor and Keeton on the Law of Torts § 101 at 709 (5th ed. 1984).
Furthermore, drawing a distinction between a sudden, calamitous event and gradual deterioration may simply turn on the arbitrary factor of whether the purchaser noticed the gradual deterioration of a component part that, left unattended, could result in a calamitous occurrence. This difficulty was noted in S.J. Groves & Sons Company v. Aerospatiale Helicopter Corporation, 374 N.W.2d 431 (Minn. 1985).
We have no quarrel with Continental's contention that there may be no incentive for manufacturers to produce safer products unless they are held liable for those defective products placed in the hands of purchasers and consumers. We are satisfied, as other courts have been, that rules which permit recovery in negligence and strict liability for damage to property other *649 than the product itself or for personal injury adequately serve this social function. See Ogle v. Caterpillar Tractor Company, 716 P.2d 334 (Wyo. 1986); O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo. 1985); Caterpillar Tractor Co. v. Donahue, 674 P.2d 1276 (Wyo. 1983). We are in accord with those courts that have rejected the distinction between circumstances which demonstrate damage to the product itself caused by a calamitous event and the same economic loss due to gradual deterioration.
We therefore hold that Wyoming does not permit recovery in strict liability or negligence for damage caused to the product itself. The corollary of this rule in context of summary judgment is that, where no cause of action is permitted, there obviously are no material facts. In the context of discovery, if there are no facts which are material, no purpose can be served by further discovery.
In the alternative, Continental argues that recovery should be permitted when the alleged tort is the failure to warn of a known, or foreseeable, unreasonably dangerous condition. Continental refers us to two cases in which recovery was allowed on the theory of negligent failure to warn when the only damage was to the product itself. Those cases are Miller Industries v. Caterpillar Tractor Company, 733 F.2d 813, 81 A.L.R.Fed. 163 (11th Cir.1984), reh. denied 738 F.2d 451 (1984), and McConnell v. Caterpillar Tractor Company, 646 F. Supp. 1520 (D.N.J. 1986). In Miller, Caterpillar manufactured and sold an engine, through one of its dealers, to a company that had contracted to construct a fishing vessel for Miller Industries. After the engine had been sold to Miller Industries, Caterpillar discovered that the model of engine that had been sold contained a defect that could render the engine inoperable. Caterpillar sent warning letters to its dealers advising them of the defect and the procedure for correcting it. No letter was sent to the company that had purchased the engine or to Miller Industries, the purchaser of the vessel in which the engine was installed. What followed was that the engine failed at sea causing a loss of fishing revenue and repair expenses. The court permitted recovery for the economic loss beyond that provided in the warranty invoking the theory of negligent failure to warn. The 11th Circuit Court of Appeals ruled that the general rule, which denies recovery for economic loss beyond that provided for in the warranty, was premised upon a different policy from that invoked when the tort alleged is failure to warn:
"* * * A duty to warn of a product's defect of which the seller becomes aware goes not to the quality of the product that the buyer expects from the bargain, but to the type of conduct which tort law governs as a matter of social and public policy. See Prosser, Section 92, p. 613; Jig the Third, 519 F.2d at 179, 181 (Gee, J., dissenting). To hold otherwise would impermissibly allow a manufacturer who is aware that it has a defective product on the market to hide behind its warranty while the buyer unknowingly uses it." Miller, 733 F.2d at 818.
In McConnell, 646 F. Supp. 1520, a similar situation was involved. A defective crankshaft was placed in the engine of a fishing vessel while the engine was being repaired. That defect resulted in damage to the engine, towing costs, loss of salaries paid, and loss of revenues paid. The district court, in that instance, adopted the reasoning of Miller and concluded that recovery for the economic loss should be allowed for failure to warn of a known defect in a product placed on the market.
This case is different from those because it involves a single manufacturer that was responsible for a single, integrated product, even though it was made up of several components. Cf. Fordyce Concrete, Inc. v. Mack Trucks, Inc., 535 F. Supp. 118 (D.Kan. 1982) (damage to a mixer that was attached to the chassis of a truck was damage to other property). While those cases are factually distinguishable, we rest our rejection of Continental's argument squarely upon the proposition that recovery for pure economic loss should not be permitted when the tort alleged is failure to warn. Recognizing the conclusion to the contrary in Miller, we perceive that both *650 styles of tort concern the conduct of the manufacturer, albeit that conduct may occur at different times in connection with the manufacturer's business. Certainly, it may be argued that the manufacturer who intentionally, or negligently, fails to warn of a known defect in a product that has been placed on the market is more culpable for his actions. The rejection of recovery for pure economic loss under theories of negligence and strict liability, however, has not been because of the absence of culpability, but because of the policy that economic loss is better adjusted by contract rules than by tort principles. What is true with respect to strict liability and negligence, i.e. the risk associated with a product which does not meet the expectations of a buyer is a risk better suited to resolution by agreement between sophisticated bargaining parties rather than shifting the economic burden through tort principles, also is true with respect to the tort of failure to warn. See W. Keeton, Prosser and Keeton on the Law of Torts, § 101 at 709.
Recognition of a cause of action based upon duty to warn, in these circumstances, well could impose a duty on the manufacturer to advise each customer of every change in the design of its product that, in some way, might lengthen the useful life of that product. There does not appear to be any inherent wisdom in imposing such a duty. We also have considered, and rejected, the adoption of any distinction based upon whether the defect could create an unreasonably dangerous condition. Imposing liability for damages caused to the user or consumer or to other property is ample incentive to encourage manufacturers to warn of a dangerous defect of which they are, or should be, aware. To permit recovery in the instance in which the product damages only itself simply because the plaintiff has alleged failure to warn of the defect will only encourage plaintiffs to present "a products liability argument clothed in `failure to warn' language," if for nothing more than its settlement potential. Zidell, Inc. v. Cargo, Freight and Subfreight of Barge ZPC 404, 661 F. Supp. 960, 964 (W.D.Wash. 1987). Stated another way, adoption of the tort theory of failure to warn would simply permit the damaged party to reach through a rear door that sanctuary from which he is foreclosed by a bar on the main entrance.
This case is a classic example of the proposition that expectancies with respect to the performance of a product should be a matter of contract between the parties. If a purchaser desires to extend the warranty period, or obtain some form of insurance as to the reliability or worthiness of the product, that may be done through bargaining for an extended warranty at an increased cost or by payment of premiums for insurance. Bridger decided to obtain insurance from Continental to cover certain defects in the dragline beyond the protection furnished in the warranty provision of its contract with Page. As consideration for that coverage, Continental accepted premium payments in accordance with its insurance policy. That decision to obtain, or provide, additional insurance through contractual arrangements represents the business expectancies of each of the parties with respect to the worthiness of the product. The injection of tort principles into the resolution of that bargain, without any compelling justification for doing so, serves only to obfuscate the decision making process by which sophisticated entities conduct their business. We hold that the district court did not err in dismissing, by the entry of summary judgment, Continental's claims alleging a right to recover economic damages in tort, including the theory of failure to warn.
Continental seeks reversal also upon its right to recover under perceived contractual obligations owed by Page. It contends that there are present in the record genuine issues of material fact which foreclose the entry of summary judgment with respect to contract claims. More specifically, Continental argues that the purchase agreement established a continuing obligation on the part of Page to insure the dragline and to indemnify Bridger against any loss. Alternatively, Continental urges the proposition that, if there was no continuing obligation under the contract, the *651 subsequent actions of Page in inspecting the dragline for defects, at the request of Bridger, created an implied contract between Bridger and Page.
The rule is clear that the interpretation of an unambiguous contract presents simply a question of law for the court, and disposition of disputes relating to such a contract properly may be accomplished by a summary judgment. See State v. Pennzoil Company, 752 P.2d 975 (Wyo. 1988). The existence of an ambiguity in this purchase agreement can be supported only if language is removed from any contextual background. The reading of the agreement that Continental chooses would impose duties on the part of Page to carry insurance and indemnify Bridger for any loss, ad infinitum, despite the express time limitations clearly promulgated in the agreement. The established rule does not support Continental but, instead, requires that the contract be read as a whole. See State v. Moncrief, 720 P.2d 470 (Wyo. 1986). Examining this contract as an entity, we are in complete accord with the district court that the language clearly provides that the contractual duties with respect to maintenance of insurance and indemnification of Bridger against any loss terminated at the completion of the period for erection of the dragline or shortly thereafter. We agree with the perceptive observation of the district court that:
"It is readily apparent from the contract, when it is read as a whole, that Page's `operations' under that contract consisted of erecting the dragline at Bridger, and that once it was erected, Page had no further obligation to maintain insurance for its `operations' under this agreement, as its operations were complete. Also, it was clearly intended by the parties that Bridger would have the benefit of the limited warranty after Page's operations in erecting the dragline under the agreement were completed, and that there would be no further requirement for Page to maintain insurance. Plaintiffs' reading of Paragraph 19 to the effect that Page has to maintain insurance on the dragline `continuously' until the end of the world is a nonsensical reading of that provision which totally ignores the rest of the contract and the context in which it is made."
The assertion of an absurd reading of an unambiguous contract to support a claim does not justify a conclusion of ambiguity in the contract nor require a court to deny summary judgment because a genuine question of material fact exists as to a duty owed under the contract.
Insofar as Continental urges an implied contract between Page and Bridger that extended beyond the period of the express agreement, Continental admits that the terms of such an agreement are unknown to either of the parties. It simply suggests that a jury be allowed to decide what the terms were. It is an axiom of the law of contracts that, in the absence of a meeting of the minds, there is no contract. Thus, in an instance in which the terms of the contract are so uncertain that mutuality of agreement cannot be discerned, the contract is unenforceable because of uncertainty. See Elder v. Jones, 608 P.2d 654 (Wyo. 1980); Engle v. First National Bank of Chugwater, 590 P.2d 826 (Wyo. 1979). Certainly, parties can create an implied contract by their conduct, but the conduct from which that inference is drawn must be sufficient to support the conclusion that the parties expressed a mutual manifestation of an intent to enter into an agreement. See J. Calamari and J. Perillo, The Law of Contracts § 1-12 at 19-20 (3rd ed. 1987). Although the question of whether particular conduct is sufficient to support a finding that an implied contract exists is generally submitted to a trier of fact, the question may be resolved by summary judgment if reasonable minds could not differ. 1 A. Corbin, Corbin on Contracts, § 18 at 21-22 (1964 & Supp. 1984); cf. Petersen v. Campbell County Memorial Hospital District, 760 P.2d 992 (Wyo. 1988).
In this regard, Continental's reliance is upon Page's response to Bridger's request to investigate certain problems that it was experiencing with the dragline and to offer suggested solutions. This request, *652 and Bridger's response, occurred after the warranty period had expired. We cannot justify a holding that this activity, without more, would serve to extend an express warranty in derogation of the specific terms of a written agreement or result in the creation of a new contract, the terms of which are unknown to either party. Page demonstrated that the only agreement between these parties was that expressed in the written contract, and Continental furnished no evidence which would refute the evidence of Page or, in any way, demonstrate the existence of a genuine issue of material fact in this regard. For this reason, the summary judgment was properly entered on the claims asserted under contract theories.
While Continental does present arguments relating to the matter of payment as a volunteer, we see no need to address those contentions. The status of Continental as a volunteer would only serve as a defense to valid claims which might have existed in favor of Bridger assigned by subrogation to Continental. In view of our conclusion that Bridger has no valid claims as a matter of law, Continental's status as a volunteer is not material.
While greater precision might have produced an order by the district court granting the motion to dismiss with respect to the tort theories asserted by Continental and then granting summary judgment with respect to contract claims, we have no difficulty in perceiving the premise for the ruling of the district court. Since there are no factual issues which have any materiality, and this case is controlled by principles of law, the denial of further discovery proceedings by the district court was correct. The disposition of the case by the entry of summary judgment in favor of Page is an appropriate resolution. The order granting summary judgment to Page is affirmed.
URBIGKIT, J., filed a dissenting opinion.
URBIGKIT, Justice, dissenting.
Denied completion of discovery and rejected right for leave to amend, appellants lost their product liability damage claims on a granted motion for summary judgment which was never made.
This appeal should be remanded to permit appellants to amend their complaint and complete their discovery to correct the treatment they received at the hands of the trial court which denied them due process. Procedurally, the trial court improperly treated a motion to dismiss as a motion for summary judgment and then used that summary judgment to foreclose the discovery appellants considered necessary to sustain their claims of contractual right, product strict liability and a post-sale duty to warn.[1] What was done procedurally to appellants was not in compliance with procedural rules, accomplished due process or provided justice. Substantively, by incorrect attribution of the existence of a majority rule, this court adopts a minority posture when it holds none of appellants' tort claims as pleaded in this appeal state a claim by an economic loss attribution upon which relief can be granted. Although I believe the majority should not adopt a minority position to exclude product liability, strict liability and negligence to permit damage recovery of over two million dollars sustained by the coal company for which this suit was commenced, that attitude does have some minority support. However, there is essentially no corresponding authority to deny recovery of damages by deprecating the post-sale duty to warn cause of action. From these singular failures in precedent, logic and justice, I strongly dissent.
First, I will address the procedural mistreatment inflicted upon the appellants and thereafter substantively address case law and concepts which lead me to reject the majority's holding that appellants' claims of negligence, strict liability, and failure to warn did not state a claim upon which *653 relief could be granted.[2]
I. PROCEDURAL MISADVENTURES
Page Engineering Company (Page) manufactured and sold a strip mine dragline to Bridger Coal Company (Bridger Coal) for its coal production operation. The two corporations remained in contact during Page's periodic inspections of and consultations about the machine's use. During this time, Page came to understand the reeving block equipment was faulty in design and could easily fail, but neglected to warn Bridger Coal. Not surprisingly, the reeving block did fail and brought down the boom.[3] This appeal questions who should pay the $2,536,957 following the catastrophic collapse of the boom caused by the failed reeving block.[4]
Suit was filed June 16, 1986 including allegations of the product liability claims of negligence and defective design, and also failure to warn, failure to maintain insurance, and violation of express warranty. Page answered by general denial and affirmative allegations of failure to state a claim, lack of privity, comparative negligence, assumption of risk and unavoidable accident. The lawsuit proceeded normally until July 1, 1987 when the Wyoming attorney for Page suddenly "took sick" during a discovery deposition and document production being pursued by Continental Insurance Company (Continental) in Chicago, Illinois. Page brought the depositions to a halt even though the "ill" counsel was not lead counsel and then refused Continental the opportunity to copy documents already produced.
Back in Sweetwater County, Wyoming, an ex parte motion was then quickly filed by defendant for a protective order. This motion assured the trial court judge that a motion for Mr. Greenhalgh (Page's Wyoming counsel who became "ill" during discovery) to withdraw as counsel would be made as soon as new counsel could be retained. That assurance proved to be false since the "ill" Wyoming counsel never withdrew from the case. A restraining order against continued discovery was issued without any apparent opportunity for response or objection by Continental who had been attempting to pursue deposition and documentary examination discovery from Page's personnel and records in Chicago.
With the ex parte protective order deterring discovery in effect, Page filed its motion to dismiss on July 16, 1987, thirteen months after the commencement of the lawsuit. The brief supporting the motion argued that product liability theories would *654 not support a claim for economic loss. Prominently cited was Buckley v. Bell, 703 P.2d 1089 (Wyo. 1985). See McLaughlin v. Michelin Tire Corp., 778 P.2d 59 (Wyo. 1989), Urbigkit, J., dissenting.
The trial court gave Continental fourteen days to respond to Page's motion to dismiss (less mailing time) and gave Page fifteen days thereafter to reply. Continental responded, including the contention that the motion to dismiss was untimely and Page filed a reply brief on August 21, 1987. Three days later, Continental filed a motion for leave to file an amended and supplemental complaint. Continental also moved to disqualify the previously "ill" but never withdrawn local counsel on a conflict basis. The brief supporting this motion stated in part that "we were given to believe that discovery was aborted at the Page plant in Illinois because [Wyoming counsel] was withdrawing not only not from this case, but from litigation altogether." The attached transcript to the brief related what occurred in Chicago on June 30, 1987:
[WYOMING COUNSEL]: I would like to say for the record that I don't feel I can participate in any depositions for health reasons. I have a history of heart problems.
* * * I don't think I can sit through another deposition today.
* * * * * *
* * * I am not physically prepared to sit through any more depositions today. * * *
MR. HENSON: Since you spent the weekend on the treadmill at the gym, I don't know that sitting through a deposition would cause any more stress than that.
If you had told us last Friday that you weren't going to be engaging in depositions here, then we wouldn't have spent the weekend preparing for depositions and spent the weekend here.
* * * * * *
Mr. Anderson came yesterday at a quarter till 5:00 while we were looking at documents and said that he wanted to get involved in the case and that he was going to have to take some time to become familiar with it and that his client would pay our clients' expenses for having to come back here for these depositions, which were suddenly aborted here at the last minute.
* * * * * *
Are you saying that you are withdrawing from the defense of Page Engineering at this point?
[WYOMING COUNSEL]: I intend to notify the insurance company that I am withdrawing for health reasons.
(Emphasis added.)
Based on Page's motion to dismiss and faced with a motion for leave to amend, the trial court granted a non-requested summary judgment on September 1, 1987. The sixteen page decision letter concluded:
Rule 12(c), W.R.C.P. provides that on a motion for judgment on the pleadings, if matters outside the pleadings are presented, the motion shall be treated as one for summary judgment. I don't think it matters much in this case how it is treated. However, the contract, the insurance policy and the subrogation receipts are all before the Court and have been referred to extensively by all counsel. Inasmuch as the parties have briefed the matter as they have, I am going to answer in kind, and treat the case as though a motion for summary judgment had been filed, pursuant to Rule 56, W.R.C.P., and if anyone chooses to do so, and, as provided by Rule 12(b)(c) "all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56", assuming there is indeed any more to be said.
[Wyoming counsel] will please prepare an order granting a motion for summary judgment and a summary judgment, submit it to opposing counsel for approval as to form and to me for signature. Opposing counsel have to and including September 15, 1987 to give such approval, or objections thereto, failing in which it will be deemed they have approved.
One last observation. I own a 1978 Oldsmobile on [which] the warranty expired years ago, and I have it insured. *655 Suppose a wheel breaks causing an accident and extensive damage to the car and my insurance company pays me. Is it then "subrogated" to my claim against General Motors for negligent design? It appears here that plaintiffs don't seem to understand that machines wear out eventually, somewhat like the "one hoss shay."[[5]]
(Emphasis added.) Procedurally, Continental was denied the opportunity to object when the trial court converted Page's motion to dismiss into a summary judgment which should have been foreclosed not only by Pace v. Hadley, 742 P.2d 1283, 1286 (Wyo. 1987) (completion of discovery), but also the summary judgment notice of conversion case of Torrey v. Twiford, 713 P.2d 1160 (Wyo. 1986).
The trial judge had decided the case and nothing thereafter would change his decision. In his further decision letter of October 21, 1987, the trial judge explained:
I do not believe the decision in Pace v. Hadley (9/22/87) appropriate here. As a matter of fact I do not even agree with Pace, supra. In that case the Supreme Court had no difficulty at all in finding what the facts were, (3rd paragraph, page 1 of slip opinion) but also held that the "plaintiffs were not allowed a reasonable time for discovery." If the Court could discern the facts so readily, so could the plaintiffs. In my experience as a lawyer, I never filed a lawsuit until I knew what the facts were as I wanted to be sure I had a cause of action. Today, apparently, the theory is shoot first and ask questions later. The additional discovery requested by plaintiffs is unnecessary and unwarranted.
(Emphasis added.) After railing for two full pages against discovery, the trial judge concluded:
Plaintiffs' Motion For Continuance of Discovery is denied. [Wyoming counsel] will please prepare an order denying the motion, an order granting Page's motion for summary judgment and a summary judgment, submit it to opposing counsel for approval as to form, and to me for signature. Opposing counsel have to and including November 2, 1987, within which to give such approval, failing in which it will be deemed they have approved.
Responding to such an untimely and unjustified decision by the trial court to convert a motion to dismiss into summary judgment without notice, Continental filed a declaration of its counsel in support of the motion to reconsider and the motion to allow the continuance of discovery, a motion for continuance of discovery on September 15, 1987, and a memorandum in support of the motion for continuance of discovery with comprehensive attachments. *656 The trial court entered an order on September 22, 1987 giving Page until October 5, 1987 to file its brief in answer to the motions for continuance and giving Continental until October 12, 1987 to reply. Resolution, of course, was the second decision letter of October 21, 1987 which denied the motion for leave to amend and the motion for a complete discovery and restated a decision which granted a motion for summary judgment which had never been made.
We are presented with a very troubling record where a litigant was clearly denied due process and somehow out of that morass, this court is able to perceive that a contractual issue was not created as a matter of partially completed discovery with a motion to file an amended complaint never considered. In view of the obvious resolution by the majority which is, in essence, that due process does not matter if a substantive right might not exist, I will not pursue the subject of the contractual issues of litigation. It should, however, be noted the Wyoming counsel who "became ill" in Chicago never withdrew and, in fact, did appear for oral argument before this tribunal. It must also be recognized that summary judgment disposition of contractual claims has occurred without completion of discovery in contravention of this court's empirical direction to the same trial judge in the earlier case of Pace, 742 P.2d at 1288.
II. SUBSTANTIVE ERROR DENIAL OF CONSIDERATION OF CLAIM FOR VIOLATION OF DUTY TO WARN POST-SALE (UNWARNED DANGERS KNOW NO MASTER)
Although not always a legal duty, the duty to warn can arise from obligations of people on the street to not stand mute while a young woman is brutally killed or the traveler who ignores the missing bridge in an unwillingness to warn anyone who might follow. Here, in an area of responsibility within product liability cases, we encounter manufacturers or vendors who know their products may cause damage or injury but remain stonefaced and silent. These products can range from the exploding lighter to a motor vehicle which tends to roll over easily. Schwartz, The Post-Sale Duty to Warn: Two Unfortunate Forks in the Road to a Reasonable Doctrine, 58 N.Y.U.L.Rev. 892 (1983); Annotation, Failure to Warn as Basis of Liability Under Doctrine of Strict Liability in Tort, 53 A.L.R. 3d 239 (1973).
More egregious is this majority's misappreciation of the problem presented in what it does to disregard or destroy the parallel tort of failure to warn. The doctrine of economic loss has no application or validity to the tort of failure to warn and neither litigant nor this court provide precedent to the contrary.[6] The tort of failure to warn is parallel to but not intrinsically within product liability case law. Failure to warn liability can arise and frequently does outside of the law in merchant and commercial transaction contract issues. Conversely, failure to warn frequently may not be an issue in product defect strict liability cases. See McLaughlin, 778 P.2d 59, Urbigkit, J., dissenting.[7]
In product defect strict liability cases, the failure to warn tort remedy exists in states that have never adopted the Restatement (Second) of Torts § 402A (1965) remedies of strict liability. When the manufacturer *657 knows harm is possible, notice for an opportunity to replace is required. Two examples will serve to illustrate. A broad recall campaign has recently been pursued involving a brand name propane gas control unit for residential furnaces. After a passage of time, perhaps a long time, certain units tend to fail and create an extreme danger of explosion and fire. The manufacturer has made a total effort at identification and recall. See, for example, Young v. Robertshaw Controls Co., 104 A.D.2d 84, 481 N.Y.S.2d 891. (1984). That control unit is a separate part from the house and even from the furnace itself with a separate identifiable manufacturer. Consider then the hypothetical but comparable example of a car fuel pump which may fail in loss of confinement of gasoline and consequently sprays gasoline on the motor of the vehicle. See Capitol Fuels, Inc. v. Clark Equipment Co., 382 S.E.2d 311 (W. Va. 1989). Three dangers exist. The fuel pump might cause the vehicle to burn up, it might cause the vehicle to burn up with the garage and house and it might burn up the occupants if the car explodes. Cases in application of the tort of failure to warn present no difference whether the damage resulting from the integrated part destroys the car, the house or a life. Economic loss, consequently, has no significance. Tested by tort is duty from knowledge of danger, failure to warn, and resulting damage and loss.
Existing separately from the faulty manufactured or faulty designed merchandise disputes, the duty to warn has two separately identified applications. The first, which is not presented here, is the vendor/manufacturer responsibility upon initial sale if the product or its intended use is intrinsically dangerous and that danger may not be equally known to the user. This sale date duty to warn tort responsibility has an extensive and long-standing history.[8] Conversely, as presented here, the post-sale duty to warn cause of action as a more recently developing theory of liability now has a significant litigation impact. However, until East River S.S. Corp. v. TransAmerica Delaval, Inc., 476 U.S. 858, 106 S. Ct. 2295, 90 L. Ed. 2d 865 (1986) and its protegee, the differentiation of elements of damage between the sale time duty and the post-sale acquired knowledge duty had not occasioned particularized discussion. "The duty to warn is an independent duty not determined by the contractual agreement between the predecessor-seller and successor-buyer corporations. L.R. Fumer, M.I. Friedman, Products Liability, § 2.06[5] (1988). The duty may arise despite `the nature of the transfer.' Id." Florom v. Elliott Mfg., 879 F.2d 801, 802 (10th Cir.1989). The character of the post-sale duty to warn is illuminated in that case where the tort is asserted against a business successor to the vendor.
Where such a duty arises, it stems from the existence of the relationship between the successor and the customers of the predecessor. Polius v. Clark Equipment Co., 802 F.2d 75, 84 (3rd Cir.1986); *658 accord Mozingo v. Correct Manufacturing Corp., 752 F.2d 168, 177 and n. 12 (5th Cir.1985) (duty arises from continuation of relationship between successor and predecessor's customers); Travis v. Harris Corp., 565 F.2d 443, 448-49 (7th Cir.1977). "The successor corporation's liability stems not from its status as a successor, but from its establishment of a relationship with the customer that imposes certain duties and responsibilities." Polius, 802 F.2d at 84; Mozingo, 752 F.2d at 177; Travis, 565 F.2d at 449.
The court must look at factors such as the succession to service contracts, coverage of the particular machine by a contract, service of that machine by the successor, and the successor's knowledge of the defect and of the machine owner's location. Polius, 802 F.2d at 84; Mozingo, 752 F.2d at 177; Travis, 565 F.2d at 449; see also Downing v. Overhead Door Corp., 707 P.2d 1027, 1033 (Colo. App. 1985) (duty to warn exists where a danger concerning the product becomes known to the manufacturer subsequent to the sale and delivery of the product, even though it was not known at the time of the sale).
Florom v. Elliott Mfg., 867 F.2d 570, 577, reh'g denied 879 F.2d 801 (10th Cir.1989). In Florom, which involved a "cherry picker" as equipment not totally dissimilar from the crane involved here, the Tenth Circuit Court of Appeals further recognized:
The claim of breach of the duty to warn was not proper for disposition by summary judgment. Leannais [v. Cincinnati, Inc.], 565 F.2d [437] at 442 [(7th Cir.1977)]. While our conclusion is based on the federal rules of procedure, we note that Colorado's procedural and substantive law mandates the same result. E.g., Union Supply v. Pust, 196 Colo. 162, 583 P.2d 276, 279, 283 (1978) (failure to warn is jury question and "trial judge should only invade the fact-finding function of the jury in the clearest cases when the facts are not in dispute."). Thus the summary judgment on this claim must be reversed.
Florom, 867 F.2d at 577.[9]
The principal case considered as precedent on the function and criteria of the post-sale duty to warn is Cover v. Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378, 461 N.E.2d 864 (1984), where an accelerator problem on a Chevrolet caused bystander injury. That case addressed admissibility of post-sale technical service bulletins issued by the manufacturer in conjunction with consideration of the cause of action of negligent failure to warn, including inadmissibility of evidence of any "failure to warn cause of action insofar as it turned on the design and risk status of the vehicle at the time of delivery." Id. 461 N.E.2d at 871 (emphasis added).
The court went on to discuss:
A manufacturer or retailer may, however, incur liability for failing to warn concerning dangers in the use of a product which come to his attention after manufacture or sale, through advancements in the state of the art, with which he is expected to stay abreast, or through being made aware of later accidents *659 involving dangers in the product of which warning should be given to users * * *.
Although a product be reasonably safe when manufactured and sold and involves no then known risks of which warning need be given, risks thereafter revealed by user operation and brought to the attention of the manufacturer or vendor may impose upon one or both a duty to warn * * *.
What notice to a manufacturer or vendor of problems revealed by use of the product will trigger his postdelivery duty to warn appears to be a function of the degree of danger which the problem involves and the number of instances reported * * *.
The nature of the warning to be given and to whom it should be given likewise turn upon a number of factors, including the harm that may result from use of the product without notice, the reliability and any possible adverse interest of the person, if other than the user, to whom notice is given, the burden on the manufacturer or vendor involved in locating the persons to whom notice is required to be given, the attention which it can be expected a notice in the form given will receive from the recipient, the kind of product involved and the number manufactured or sold, and the steps taken, other than the giving of notice, to correct the problem * * *.
Id. 461 N.E.2d at 871-72.
Among other cases cited by the New York court involving the post-sale failure to warn cause of action include Comstock v. General Motors Corp., 358 Mich. 163, 99 N.W.2d 627 (1959), which involved an automobile brake failure and quoted the seminal case of MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). In Comstock, Buick Motors had ample warning of a serious brake problem. The duty to provide a post-sale warning was derived from the earlier Michigan case of Gerkin v. Brown & Sehler Co., 177 Mich. 45, 143 N.W. 48 (1913):
"When the fact is once established and demonstrated by experience that a certain commodity apparently harmless contains concealed dangers, and when distributed to the public through the channels of trade and used for the purposes for which it was made and sold is sure to cause suffering to, and injure the health of, some innocent purchaser, even though the percentage of those injured be not large, a duty arises to and a responsibility rests upon the manufacturer and dealer with knowledge to the extent, at least, of warning the ignorant consumer or user of the existence of the hidden danger. Failing to do so, the dealer, as well as the manufacturer, who has the knowledge and does not impart it, is liable to a subsequent, ignorant purchaser, reasonably within contemplation of the parties to the original sale, for injuries sustained through such hidden dangers. This is by reason of the duty the dealer owes to the public generally, which includes all whom it may concern, to give notice of any concealed dangers in the commodity in which he traffics, and to exercise a reasonable precaution for the protection of others commensurate with the peril involved. We think this principle applicable to the case at bar and fairly deducible from the many authorities touching manufacture and sale of dangerous commodities."
Comstock, 99 N.W.2d at 634 (quoting Gerkin, 143 N.W. at 53). See likewise Bottazzi v. Petroleum Helicopters, Inc., 664 F.2d 49 (5th Cir.1981) and Braniff Airways, Inc. v. Curtiss-Wright Corp., 411 F.2d 451 (2nd Cir.), cert. denied 396 U.S. 959, 90 S. Ct. 431, 24 L. Ed. 2d 423 (1969), reh'g 424 F.2d 427 (2nd Cir.), cert. denied, 400 U.S. 829, 91 S. Ct. 59, 27 L. Ed. 2d 59 (1970).
In Braniff Airways, Inc., 411 F.2d at 453, the court first adduced that claims based on warranty were barred by the appropriate contract action statute of limitations and then said, in regard to the airplane:
It is clear that after such a product has been sold and dangerous defects in design have come to the manufacturer's attention, the manufacturer has a duty either to remedy these or, if complete remedy is not feasible, at least to give *660 users adequate warnings and instructions concerning methods for minimizing the danger.
See John Deere Co. v. May, 773 S.W.2d 369, 378 (Tex. App. 1989) and Bell Helicopter Co. v. Bradshaw, 594 S.W.2d 519 (Tex. Civ.App. 1979). In John Deere Co., 773 S.W.2d at 378, a $2,652,000 judgment was awarded as the price for "the tragic result of its failure to act [warn]."
A fishing vessel engine damage resulted from failure of an unsupported oil line in Jones v. Bender Welding & Mach. Works, Inc., 581 F.2d 1331 (9th Cir.1978). Liability was justified by a finding of negligent notification where the problem had been bulletined to dealers but not to boat owners:
Nor can Caterpillar avoid liability by contending that it had no duty to inform its dealers of the bracket. While it is arguably true as Caterpillar contends that the lack of a bracket did not cause a safety hazard to the ship's passengers, the danger posed to the engine and the ship itself, if not the shipper's lost profits, is sufficient to create a duty to act in a reasonable fashion. * * * In light of the comparable development at common law of the duty to inform as reasonable conduct by a manufacturer and the clear implication of our recent opinion in Pan Alaska Fisheries, Inc. v. Marine Construction & Design Co., supra [565 F.2d 1129 (9th Cir.1977)], we also reject Caterpillar's argument that the duty to inform dealers is not enforceable by the ultimate consumer.
Id. at 1335.
A product similar in commercial scope of limited unit production as canning or packaging equipment produced the litigation in Kozlowski v. John E. Smith's Sons Co., 87 Wis. 2d 882, 275 N.W.2d 915 (1979) where, while in operation and under maximum pressure, a piston in the machine jetted beyond the safety line of the machine, fractured safety rings and killed the operator. The appellant contended the machine was defective by design when permitting the existence of an unreasonably dangerous condition. It was argued there was a substantial risk the safety ring (as it did) would fracture when continually struck by the piston while in operation. At issue was the non-installation of a post-sale safety device raising the duty of warning by the manufacturer of an allegedly defective condition in light of the improvement which would have avoided occurrence of the accident. In analysis, that court found:
[A] jury could find it persuasive that prior to the accident, a Smith's sales representative made only two visits to the Cudahy plant. On each occasion he failed for one reason or another to inform Cudahy of the safety by-pass valve and the hazard it was designed to prevent. The representative's own testimony is that these sales calls were made after 1971 when the safety by-pass valve had become standard equipment on all new machines.
Id. 275 N.W.2d at 923.
The differentiation between incidents of initial sale and subsequent post-sale duty to warn were related in Miller Industries v. Caterpillar Tractor Co., 733 F.2d 813, 818, reh'g denied 738 F.2d 451 (11th Cir.1984):
[T]he argument for finding that a warranty was not intended to preclude a negligence action is even more compelling here than in Jig the Third. In Jig the Third [Jig the Third Company v. Puritan Marine Insurance Underwriters Corporation, 519 F.2d 171 (5th Cir.1975)], the plaintiff's claim was premised on the negligent design and manufacturing of the product and thus was closely related to the quality of the product and the plaintiff's expectations of how the product would perform. Here, however, the gravamen of the plaintiffs' complaint is that the defendant failed to properly warn of defects that it discovered after the engine was already on the market. Whatever the merits of adopting a rule that views defects in a product as part of the parties' bargain and thus within the law of sales, it is much less tenable to presume that the buyer has bargained away the manufacturer's obligation to warn of defects that later come to the manufacturer's attention. A duty to warn of a product's defects of which the seller becomes aware goes not to the *661 quality of the product that the buyer expects from the bargain, but to the type of conduct which tort law governs as a matter of social and public policy. * * * To hold otherwise would impermissibly allow a manufacturer who is aware that it has a defective product on the market to hide behind its warranty while the buyer unknowingly uses it.[[10]]
Overspeed of an airplane propeller occasioned consideration of the failure to warn liability in Noel v. United Aircraft Corp., 342 F.2d 232 (3d Cir.1964), where the court found the danger of the occurrence and its effects not hypothetical but a generally recognized danger. Evidence of post-sale safety improvements was admissible to establish the manufacturer's duty, if any, to warn the purchaser of commercial iron of any deficiency in the ironer's safety features in doCanto v. Ametek, Inc., 367 Mass. 776, 328 N.E.2d 873, 878 (1975):
There was evidence from which the jury could have found that the machine was negligently designed and its braking capacity misrepresented. When the manufacturer of such a machine learns or should have learned of the risk created by its fault, it has a duty to take reasonable steps to warn at least the purchaser of the risk. * * * One such reasonable step may be to warn at least the purchaser of changes which eliminate or tend to eliminate the risk created by the manufacturer's initial fault.
In Labelle v. McCauley Indus. Corp., 649 F.2d 46, 49 (1st Cir.1981), the court stated:
The manufacturer's duty to warn of a defect or dangerous condition extends, however, to the purchaser of its product, * * *, even if defects are discovered after the initial sale. * * *
To be adequate, a warning must reasonably apprise the purchaser of the danger by direct notice or by an indirect notice which gives warning or eliminates the danger. That an indirect warning fails to reach a particular purchaser does not alone render the manufacturer negligent if the method of warning be adequate. Restatement (Second) of Torts, § 388 Comment c (1965).
A question of fact was created by issuance of a revision to the service manual. The airplane was damaged when the propeller blade sheared and created the inquiry of a duty to warn post-sale cause of action for which plaintiff's favorable jury verdict had been initially entered. That verdict for the damage to the airplane resulting from the propeller blade provided sufficient evidence to support a finding of negligent failure to warn about a defective condition in the product. Bottazzi, 664 F.2d 49 likewise raised the duty to warn as a post-sale failure which similarly justified recovery from an accident caused by a power shaft failure on the helicopter. The manufacturer knew of the potential problem and failed to warn customers of the potential danger and to specify corrective action in its overhaul manual.
The analysis that a breach in the duty to warn is different from the duty breached by manufacturing a defective product and is also different from a breach in a post-sale duty to warn of a known danger, is well-stated in Nicor Supply Ships Associates v. General Motors Corp., 876 F.2d 501, 504 (5th Cir.1989) (footnotes omitted):
Two courts, the Eleventh Circuit in Miller Industries v. Caterpillar Tractor Co., [733 F.2d 813 (11th Cir.1984)] acting before East River, and a New Jersey District Court in McConnell v. Caterpillar Tractor Co., [646 F. Supp. 1520, 1526 (D.N.J. 1986)] acting after East River, have distinguished between a manufacturer's negligence occurring "as part of the manufacturing process" and a manufacturer's negligent failure to warn of a known defect. * * * Both courts reasoned that a manufacturer's negligence after manufacture has been completed "goes not to the quality of the product that the buyer expects from the bargain, but to the type of conduct which tort law governs as a matter of social and public policy."
*662 In both Miller Industries and McConnell, the failure-to-warn claim was predicated on knowledge gained by the manufacturer after the product had been delivered. * * *
While failing to warn a purchaser of a defect in a product known at the time of manufacture is, of course, different from manufacturing a defective product, both negligent acts occur during the manufacturing process and before delivery of the product to the buyer. We are unable to assign to either act a relatively higher level of consciousness of wrongdoing, and thus do not discern a meaningful legal difference between them.
Examination of the cited cases supports the thesis presented. In McConnell v. Caterpillar Tractor Co., 646 F. Supp. 1520, 1526 (D.N.J. 1986), the court said:
Plaintiffs allege that both Caterpillar and Giles & Ransome were negligent in failing to notify them of the defect in the crankshaft. We first note that the East River decision, as we read it, does not bar plaintiffs' negligence claim. It is true that in East River, plaintiff-charterers, in the fifth count of their complaint, alleged that the defendant negligently supervised the installation of a valve, and that the Supreme Court disallowed recovery on this count as well as on the strict products-liability counts because the losses sustained were purely economic. However, in East River, plaintiffs alleged that the negligence occurred "as part of the manufacturing process." 106 S. Ct. at 2297. The alleged negligence in the instant case is distinguishable; plaintiffs here assert, not that defendants negligently manufactured the crankshaft, but that they negligently failed to warn plaintiffs of a known defect in the crankshaft.
In Strauch v. Gates Rubber Co., 879 F.2d 1282 (5th Cir.1989), hose was purchased from Gates Rubber Co. for ammonia transfer purposes. The manufacturer failed to warn its customer the product had an average service life of thirty months. When use continued by the customer beyond the non-communicated service life, the hose burst and injury and damage resulted. Absent communication of the useful life limitation, liability could result from product failure.
It was reasonable for the jury to conclude from this evidence that the hose failed on June 28, 1985 because it had been in service longer than its useful life and that defendant's failure to warn of its product's truncated serviceable life was a proximate cause of its failure.
Id. at 1286.
The post-sale duty to warn negligence tort is the result of a circumstance but not a function of the sales transaction. 1A L. Frumer & M. Friedman, Products Liability § 2.22 (1987). The initiating factors arise when first the manufacturer or supplier comes to recognize that a previously sold product produces an unreasonable risk of injury or damage to the user or bystander. Secondly, the possessor of the information makes no reasonable effort to meet its duty of due care to provide the information to the possessor of the product so that potential damage can be avoided by disuse or correction. Finally, the user, unaware of the danger, continues use of the faulty product and, within the reasonably expected circumstances, an event of loss occurs from which damage and injury result.
It is first apparent the duty is to communicate the warning. This provides the user opportunity to avoid the harm. Consequently, the duty itself has nothing to do with statutes of limitation triggered by negligence or warranty from the initial sales transaction. Contractual terms of implied warranty, express warranty and waiver of warranty are likewise not functional factors in the existence of the tort or related to a remedy from a failure to warn. Additionally, with one differentiated case, Bell Helicopter Co., 594 S.W.2d 519, avoidance of the commission of the tort is accomplished by reasonable efforts to communicate under the circumstances and what, if anything, the user does thereafter to take heed remains no responsibility for the manufacturer or supplier. In Rekab, Inc. v. Frank Hrubetz & Co., 261 Md. 141, 274 A.2d 107, 111 (1971), the court found *663 the replacement of the ferris wheel shaft with agreement to install at the convenience of the operator constituted a "tintinabular message" sufficient to avoid post-sale failure to warn tort liability. For this cause of action derived from product liability cases, the existence of the sale of the tangible object subjects the parties to duties that are independent of the sales transaction in its initially executed terms. It is a positive duty independent of the contract although arising out of a state of facts created by the contract. The court in Tomlinson v. Armour & Co., 75 N.J.L. 748, 70 A. 314, 317 (1908) related:
[T]he existence of the contract creates a situation that subjects the parties to duties that are independent of the obligation to perform the contract * * *.
* * * * * *
Among the most fundamental of personal rights, without which man could not live in a state of society, is the right of personal security, including the "preservation of a man's health from such practices as may prejudice or annoy it" (1 Black.Com. 129, 134) a right recognized, needless to say, in almost the first words of our written Constitution (Const. art. 1 par. 1). To assert, therefore, that one living in a state of society, organized, as ours is, according to the principles of the common law, need not be careful that his acts do not endanger the life or impair the health of his neighbor seems to offend against the fundamentals.
In the earlier case of Tomlinson, diseased and unfit food was sold. A more current example of the ignored duty to warn is found in Young, 481 N.Y.S.2d 891. Robertshaw Controls Company is a nationally established vendor of control units for propane furnace and water heaters. The court, in Young, 481 N.Y.S.2d at 893-94, described that:
[E]vidence tendered by the plaintiff indicates, that for a number of years prior to decedent's death defendant was aware its control valve was defective and represented a real danger to the public (there had apparently been more than 100 accidents resulting in 32 deaths and 77 injuries), yet it did not recall the controls nor attempt to alert the public to the risk, but embarked instead upon an affirmative course of conduct designed and calculated to conceal the problems with the control. Allegedly this concealment, which continued for several years after decedent's death, was undertaken with the intention of deceiving the public at large as to the continued fitness for use of this control valve which defendant had placed in commerce and minimizing recoveries in lawsuits generated by the faulty control. Although generally non-disclosure or concealment alone does not equate to actionable fraud * * *, it is a principle of long standing that "one who sells an article knowing it to be dangerous by reason of concealed defects is guilty of a wrong, without regard to the contract, and is liable in damages to any person, including one not in privity of contract with him, who suffers an injury by reason of his willful and fraudulent deceit and concealment" (Kuelling v. Lean Mfg. Co., supra, 183 N.Y. p. 89, 75 N.E. 1098).
Of similar intelligence is a case which is the factual converse of Buckley, 703 P.2d 1089. In American Oil Co. and Capitol Oil Co. v. Nicholas, 156 Va. 1, 157 S.E. 754 (1931), gasoline was delivered rather than the ordered kerosene. Gasoline was a faultless product, but not when used by the unsuspecting purchaser to start a fire in his coal stove with a result which burned more than desired in the resulting explosion. As a matter of fact, serious injuries resulted. The Virginia court, in finding a duty on the distributor to warn about the improperly delivered fuel quoted an even earlier Virginia case, Standard Oil Co. v. Wakefield's Adm'r, 102 Va. 824, 47 S.E. 830 (1904):
"It seems to be a well-settled rule of the common law that a person who negligently uses a dangerous instrument or article, or causes or authorizes its use by another in such a manner or under such circumstances that he has reason to know that it is likely to produce injury, is responsible for the natural *664 and probable consequences of his act to any person injured who is not himself at fault."
In the same case Judge Buchanan quotes with approval from Thompson on Negligence, vol. 1, § 821, as follows:
"The doctrine of these cases, stated in a general way, is that, if a person sells goods, chattels, or machinery which posses some concealed defect, or tendency to do harm, such as will, according to the probabilities of ordinary experience, do harm to innocent persons, he must respond in damages if such harm ensue without the intervention of the negligence or fault of others; and upon principle it would be immaterial whether the knowledge of the concealed vice or defect was withheld from the purchaser through the vendor's unskillfulness, ignorance or fraud."
American Oil, 157 S.E. at 757-58.
Presented here is a post-sale duty when the manufacturer or vendor comes to know that a danger from continued use may exist to the product as well as other property. A post-sale duty to warn concept is an emerging tort concept founded upon a concept that any choice requires the knowledge to chose and the originator of the product retains a responsibility to furnish that information which permits the user to exercise a choice.[11] See differentiation and distinguishment of the post-East River case in Zidell, Inc. v. Cargo, Freight and Subfreight of Barge ZPC 404, 661 F. Supp. 960 (W.D.Wash. 1987) and McConnell, 646 F. Supp. 1520. Non-communicated knowledge is the tort foundation. Schwartz, supra, 58 N.Y.U.L.Rev. at 896-97; Annotation, Strict Products Liability: Liability for Failure to Warn as Dependent on Defendant's Knowledge of Danger, 33 A.L.R. 4th 368 (1984). See also Annotation, Discovery, In Products Liability Case, of Defendant's Knowledge As To Injury To or Complaints by Others Than Plaintiff, Related to Product, 20 A.L.R. 3d 1430 (1968).
The fallacy in this majority is in collapsing this post-sale duty to inform into concepts of product liability recovery limitation where only economic damage results from usage of a faulty product. A contractual thesis with corollary attributes of statute of limitations or limited time of warranty has nothing to do with the societal danger from a faulty product where the knowledge necessary to protect is encased in the hands of the originator. The authority supporting this misapplication of a differing responsibility to protect society from injury as a product liability concept is a current case from an intermediate appellate court which makes the same mistake repeated by this majority. Utah Intern., Inc. v. Caterpillar Tractor Co., 108 N.M. 539, 775 P.2d 741, cert. denied 108 N.M. 354, 772 P.2d 884 (1989).[12] The New Mexico court opined that the commercial transaction factor was determinative in denial of recovery for economic damage. That court then said "[w]e specifically do not address the question of whether the same rule should apply to non-commercial consumers who suffer similar injuries." Id. 775 P.2d at 744. In regard to the separate claim for negligent failure to warn, that court then said:
[W]e believe that the same policy considerations which apply to defects in manufacturing also apply to failure to warn of defects. Post-East River cases other than McConnell appear to apply broadly the rule prohibiting tort recovery for economic loss. * * * Thus, we hold that in *665 commercial settings claims for economic loss from a product injuring itself due to negligent failure to warn are also precluded from recovery.
Id. 775 P.2d at 745.
This quotation reflects how bad law results from misquotation or improper examination of cases. The federal district judge in Frey Dairy v. A.O. Smith Harvestore Products, Inc., 680 F. Supp. 253 (E.D.Mich. 1988) (also a company that is a frequent visitor to these product liability cases), without discussion or analysis about the duty to warn which was claimed, stated the economic damage rule precluded plaintiff's recovery on all tort remedies by citation of a federal and a Michigan state case. On appeal, the Sixth Circuit Court of Appeals took a completely novel approach in affirming the bad decision of the trial court, neither of which fit Michigan case law by discerning that tort remedies were waived by contractual exclusion. Frey Dairy v. A.O. Smith Harvestore Products, Inc., 886 F.2d 128 (6th Cir.1989). The Michigan case, McGhee v. GMC Truck & Coach Division, 98 Mich. App. 495, 296 N.W.2d 286 (1980), did not involve or raise any issue of a duty to warn as a recovery claim. See, moreover, Mulholland v. DEC Intern. Corp., 432 Mich. 395, 443 N.W.2d 340 (1989). Likewise, S.M. Wilson & Co. v. Smith Intern. Inc., 587 F.2d 1363 (9th Cir.1978) did not present a duty to warn claim either. Florida Power & Light Co. v. Westinghouse Elec. Corp., 510 So. 2d 899 (Fla. 1987) involved nuclear steam supply systems and provided no issue or discussion of a post-sale unmet duty to warn.
The Tenth Circuit Court of Appeals in Smith v. FMC Corp., 754 F.2d 873 (10th Cir.1985) considered a safety device to protect a crane from "two-blocking." Reversal of a defendant's verdict came by decision of the appellate court on the improper inclusion of an assumption of risk instruction and in regard to a contested instruction on defective product liability where the appellate court directed that "the district court may wish to review this instruction upon remand, inasmuch as a manufacturer has a responsibility to warn of a defective product at any time after it is manufactured and sold if the manufacturer becomes aware of the defect." Id. at 877.
The FMC Corporation crane accident illustrates the theoretical invalidity of this court's economic damage adaptation when applied to a post-sale duty to warn cause of action claim. In that case, the faulty device on the crane boom caused the death of two innocent bystanders. In this case, it was only by blind luck that no one was killed when the reeving block failed, destroying the boom and the dirt bucket. The differentiation in thesis that no viable claim of negligent violation of the duty to warn after sale can be stated here and one could be stated in FMC Corporation is simply absurd. Sales contract conditions and warranties have absolutely nothing logically to do with the existence of the same tort in both cases. One only needs to recognize the absolute axiom of accidents that if a gamble is made from which damage and loss result to the product itself, sooner or later, if not most of the time, someone will be injured or killed or, at least, other property damaged. The comparison of happenstance is illustrated in Suich v. H & B Printing Machinery, Inc., 185 Ill. App. 3d 863, 133 Ill. Dec. 768, 541 N.E.2d 1206 (1989), where lacking appropriate warning, the gantry crane collapsed resulting in damage award to the injured worker of $2,800,707. The only difference is that here, no one was in the way when the machine collapsed. Again, in H & B Printing Machinery, Inc., the injured worker was in the wrong place at the wrong time.[13]
The text authorities recognize a duty to warn even if the damages are what has been referred to generally as economic damage. The premises for recognizing this tort are spelled out in 1 M. Madden, Products Liability § 10.13 at 453-55 (2d ed. 1988) (footnotes omitted):
*666 A post-sale duty to warn may attach even if the product was, at the time of manufacture and sale, reasonably safe for use (or arguably so), but through use or operation, has betrayed hazards not earlier known to the seller, or to other sellers of like products.
* * * * * *
As is equally true of the duty to warn at the point of sale, the doctrinal underpinning of the manufacturer's post-sale informational obligation is the commitment to remedying the asymmetry of information held by the seller, on the one hand, and by the consumer on the other. The object, in general terms, is to encourage manufacturers to impart to consumers that information the manufacturers receive in the ordinary course of their business, germane to product safety and technological advances and to the performance and accident histories of those products sold and in use.
See likewise, 1A L. Frumer & M. Friedman, supra, at 2-1071. "Even if there is no duty to warn at the time of the sale, facts may thereafter come to the attention of the manufacturer which make it imperative that a warning then be given." Id. at 2-1071. See also 1 American Law of Products Liability 3d, § 1:67 at 71 (1987) and 3 American Law of Products Liability 3d, § 32:6 at 20 (1987). "Thus, a manufacturer must warn of dangers inherent in its product that it knew or should have known about during the time the plaintiff used the product." Id. at 21.
The majority offers no real authority to deny recovery for a breach of post-sale duty to warn. As the authorities reflect, the issue is a responsibility to share information in order to afford the purchaser an opportunity to avoid damage and loss. Page could easily have warned Bridger Coal the reeving block was defective. Bridger Coal could have replaced the defective reeving block for $80,000 $150,000 or continued using the old reeving block and risked the catastrophic loss that followed. The point is they would have been allowed to make an informed decision and determined whether to buy safety with a replacement product.
The majority is wrong in precedent, wrong in theory, and wrong in rejection of its obligation to contribute to the effectiveness and efficiency of the nation's economic institutions.
III. PRODUCT LIABILITY PROPERTY DAMAGE
(WHAT IS ECONOMIC DAMAGE?)
This court is presented with a clearly defined substantive appeal determination whether the economic loss doctrine bars recovery where the reeving block failed and caused damage to the boom and shovel of the drag line equipment. Disregarding all contractual issues by-passed by denied discovery and the substantively significant concerns of implied warranties of merchantability and fitness for the purpose intended, we are presented under economic loss doctrine topics of (a) what is economic damage; (b) proper viability of the economic loss doctrine for application under these circumstances as it should properly be confined and defined within current literature when the occurrence is catastrophic and life threatening; and (c) constituent damage to other parts of the equipment.
Before distilling the three substantive mistakes in analysis and precedent made by this court, it helps to set out what is meant by the terms used by courts.[14]*667 Claims for a negligently manufactured or improperly designed product potentially include three kinds of damage: (1) economic loss; (2) property damage (each of which may be direct or indirect); and (3) personal injury.[15] Case confusion and judicial delusion results from the frequent mischaracterization between these three kinds of damage. A direct property damage claim is made when the claim is for repair or replacement of the damaged item. An indirect property damage claim is made when the claim is made to recover damages to additional property owned by the user or a third party. Economic loss, which addresses the different dimension of damage, is also divided into direct and indirect damages. Direct economic loss considers the diminished performance factor of that specific faulty product in the diminished value which results from unmet expectancy in performance and includes replacement or cost of repair. Indirect economic loss is the down time and the loss of use which includes loss of profits during repair or replacement. Comment, The Vexing Problem of the Purely Economic Loss in Products Liability: An Injury in Search of a Remedy, 4 Seton Hall L.Rev. 145, 154-55 (1972).[16] Additionally, of course, a product *668 liability claim may be made for physical injury. There also is found in some cases to be a difference whether the product is commercial or consumer in nature.
These economic loss product cases apparently address direct product damage and economic loss, as long as no indirect property damage results and no personal injuries are sustained by users or other persons. Opinion writers and scholars do not make clear what happens if there is also indirect property or injury damages. That confusion is engendered by indecision of whether the inquiry is the existence of an available theory of tort recovery or only a limitation on recoverable damage without regard for the availability of the recovery theory. Differentiation between strict liability and negligence adds further misconstruction and confusion. See Gaebler, Negligence, Economic Loss, and the U.C.C., 61 Ind.L.J. 593 (1986).
The significance of a proper use of terms and determination of theory can be quickly recognized if economic and non-economic damage is considered. That would have been the case here if other property or an employee had been in the way when the boom folded like a windblown match-stick house. Whether or not there was injury or property damage alongside economic loss raises the inquiry of where recovery is authorized under the Uniform Commercial Code and contract theory or under the tort claims of negligence and strict liability. Common sense indicates the existence of other damage should not determine whether a tort was committed. Consequently, to understand the structure of the cases, it is helpful to consider recoverability for kinds of damage and not fence with a decision of whether the tort exists. This is the only justification for comparing strict liability and negligent product liability cases to those of the independent violation of a duty to warn where separately located in product sales obligation and liability cases.
A tort is an act that wrongfully invades the rights of other persons either negligent, willful or founded on strict liability. In order for actionable results to follow from the occurrence of a tort, there is additionally required proximate cause and compensable damage. This case raises the recoverability for damage from a defective product which was put into the stream of commerce whether damage results to itself, to the balance of the machine to which it is attached, or to a person or other property. The conduct of the "wrongful action" does not change by a difference in damage. Consequently, the proper inquiry in product liability cases is not whether there was a tort definable by resulting damage, but when the tort exists, what resulting damages are compensable.[17]
This court is asked to determine the relation of what it calls economic damage with the determination of when recovery for damages can be obtained. The question can be phrased in analysis that either the tort does not exist if a particular character of damage is produced or, alternatively, the tort exists but a particular character of damage is not recoverable. The first construction operates from result to justification *669 and, in my opinion, is faulty reasoning. I perceive the tort existed without regard for differentiation of economic or non-economic results, such as personal injury damages. I would apply the question of recovery to the analysis of what character of rights flow from the committed wrong. One approach is only result-oriented while the other seeks some principle or at least direction within this disorganized field of law.
A theory of tort law is invoked in second approach and a concept of a way to limit recovery by the first. Clearly, the conflict, confusion and illogical reasoning was fertilized by the United States Supreme Court in East River S.S. Corp., 476 U.S. 858, 106 S.Ct. at 2295 by adaptation of its result-oriented effort to limit damages by denial that a responsive tort theory exists for recovery of economic damages (in the commercial transaction?).[18]
A careful and comprehensive review of the many cases establishes a persuasive thesis in recognizing the second approach should be used to achieve decision. That is to simply first determine, "is there a tort?" If so, what damages can be recovered. It may be more provident to analyze losses for which tort liability will not be recoverable. Nearly unanimously, damages in defective product liability cases are not recoverable where the loss is a failure of bargain resulting from an unmet expectancy in product performance. This is not tort, it is contract. Conversely, the majority of the cases and the most pervasive reason find the tort and accompanying right to recover for any resulting damages in failure of a product unreasonably dangerous and the loss event is sudden, unexpected, calamitous or accidental rather than developmental.[19] Appended to these concepts is the relation of the failed part to the productive unit as intrinsic or attached and whether the damage is to that part or to the entire *670 unit, e.g., the wrist pin that destroys the motor or the turbine blades that eat up the generator. Another example is the broken truck frame that causes the separately installed cement mixer to break loose and damage the truck cab.
All of these conflicts develop from the required delineation of what is recoverable damage from any product liability tort. States which apply any of these concepts agree unanimously the right to recover for sustained damage exists if personal physical injury results from the product failure. This is the typical bad tire and rollover bar user injury cases. Nearly as unanimous, recovery is permitted if the failed part causes "other property damage." The exploding refrigerator in Largoza v. General Elec. Co., 538 F. Supp. 1164 (E.D.Pa. 1982) and the blown up television set in Romano v. Westinghouse Elec. Co., 114 R.I. 451, 336 A.2d 555 (1975) when the resulting fire destroyed the residence serve as examples.
To the other extreme, if the damage is only to the part or if the problem is essentially a failure in expectancy, few if any cases find recoverable damage. This leaves the unusually dangerous or calamitous event occurrence as unsettled subjects. I find within this analysis that this majority adopts an obviously minority posture, which is a clearly regressive aptitude for Wyoming product liability law. Good reason for rejection of that misapplication can be found in the many thoughtful discussions in the multitude of cases. One of the clearest and best reasoned is the recent Washington case of Washington Water Power Co. v. Graybar Elec. Co., 112 Wash.2d 847, 774 P.2d 1199, amended 779 P.2d 697 (1989). We are reminded again that only by first recognition of the factors from which the decision should be made can a rational and reasonable analysis be applied.
IV. APPROACHES TO ECONOMIC DAMAGE RECOVERY IN PRODUCT LIABILITY CASES: THE THREE DIVERGENCES
A. General Standards
There are three possible standards to pick from to decide when recovery can be had where the loss is said to be "economic loss".[20]
1. Santor Standard: In addition to contractual remedies, obsolescence and wear out recovery may be obtained by product liability theories of tort of strict liability for design or manufacturing defect and duty to warn upon initial sale. (Obsolescence and wear out damage, failure of the bargain.)
2. Catastrophic Loss for Use of Unreasonably Dangerous Product Standard: Recovery is permitted for those tort theories if the event of loss was sudden or catastrophic and by some application the product was unreasonably dangerous within which the unexpected loss resulted. (Accidental loss, unreasonably dangerous nature of the occurrence and defective product.)[21]
*671 3. East River Standard: The East River standard denies recovery for loss of economic damage from a defective product except when provided by contract. East River is binding in admiralty cases and the federal courts split with review of diversity and other non-admiralty applications. These are the cases that deny recovery whether or not the event was catastrophic or unreasonable danger was created in product failure.
There is a further divergence in the application of East River. Some cases follow the East River justification and result to apply the economic damage rule to non-consumer transactions for bargaining equals.[22] If the transaction is not commercial in nature, the rule to be applied is in a no man's land where this concept is utilized. The other divergence from East River is to ignore the justification factor and apply the thesis uniformly that with internal product failure, equipment confined damage is not recoverable in tort.
Permitting recovery when the loss is catastrophic and a product is unreasonably dangerous to use is the predominant standard for non-admiralty cases which is contrary to the assertions made by the majority.[23] With the emergence of this standard, *672 the Santor approach which permitted recovery for obsolescence and wear out was generally discarded. This is true even in New Jersey where Santor had initially enunciated the principal argument for a better coverage of product liability responsibility in tort to the manufacturer or supplier of the product.
The conflict of which standard to apply is between one which allows only those remedies contracted for and one which allows a tort claim of negligence or strict liability when the loss is catastrophic and a product is unreasonably dangerous to use. Under this tort standard, it is not relevant that the damage was to other property or to human life.[24]
The East River standard line of cases may or may not be confined to commercial transactions where there is equal bargaining power between the purchaser and vendor or manufacturer.[25] Unfortunately, commentators and opinion writers do not know what to do if it is not a commercial transaction and they still want to follow the non-tort recovery precept of East River. Admiralty law is not a good foundation from which to build the law to control the American economic system. What may be appropriate for shipping may not exactly fit the farmer who is given bad fuel or the commercial establishment which is provided a faulty propane heating system regulator. I can leave for the United States Supreme Court its continued derivation of common law for admiralty.[26]
*673 B. Extraordinary Dangers Catastrophic Event The Majority Standard
The most recent adjudication providing the clearest persuasion is the Washington Supreme Court decision in Washington Water Power Co. v. Graybar Elec. Co., 112 Wash.2d 847, 774 P.2d 1199, amended 779 P.2d 697 (1989),[27] in recognition of the countervailing concept of East River. That court defined East River:
In its opinion, the Court assessed the relative merits of several different conceptions of economic loss. For purposes of the law of admiralty, it chose the conception that defendants urge us to adopt under the WPLA. When a product damages only itself, and not persons or other property, the Court held, the proper remedy lies in contract, not in tort, no matter what risk of harm the product defect poses, and no matter how the product injury occurred.
Washington Water Power Co., 774 P.2d at 1208. Recognizing that denial of remedy might provide greater certainty, the Washington court rejected East River:
In our opinion, however, this increased certainty comes at too high a price. If manufacturers can contract successfully around liabilities for product injuries, a principal deterrent to unsafe practices the threat of legal liability will be lost. See Cloud v. Kit Mfg. Co., 563 P.2d 248, 250-51 (Alaska 1977); Salt River Project Agricultural Imp. & Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368, 694 P.2d 198, 211 (1984); Mid Continent Aircraft Corp. v. Curry [Cy.] Spraying Serv., Inc., 572 S.W.2d 308, 316-18 (Tex. 1978) (Pope, J., dissenting).
Washington Water Power Co., 774 P.2d at 1209. In conclusion, the court compared the reason for rejection:
The Court's analysis in East River, we believe, unjustifiably dismisses the safety concerns attendant to product injuries caused by hazardous defects. For this reason, we find East River's approach to economic loss unsuited to what the Legislature intended under the WPLA. Product injuries, the Court says, do not raise safety concerns, but are "essentially" a performance problem.
Id. 774 P.2d at 1209.
Washington Water Power Co. does not stand alone. While the Washington court used risk of harm as the basis of economic damage liability for a defective product, Oregon courts use a strict liability standard which applies if the defect is "unreasonably dangerous to the user." Brown v. Western Farmers Assoc., 268 Or. 470, 521 P.2d 537, 540 (1974). See Heaton v. Ford Motor Co., 248 Or. 467, 435 P.2d 806 (1967). Since East River, the federal courts have continued to apply the Oregon law for diversity cases as shown by Bancorp Leasing and Financial Corp. v. Agusta Aviation Corp., 813 F.2d 272 (9th Cir.1987). The basis of Oregon law in Brown, 521 P.2d at 540 is justification for the imposition of strict liability upon suppliers of defective products when creating hazard to life and health by sale of a product which presents danger in defect. Oregon differentiated this dangerously defective product argument from the disappointed buyer, Price v. Gatlin, 241 Or. 315, 405 P.2d 502 (1965), and denied product liability relief to the purchaser of chicken feed which, although arguably defective, was not unreasonably dangerous. The court left open the unreasonably dangerous test whether *674 to be applied only to persons or to be applied to property. Brown, 521 P.2d at 542. It is noteworthy that the special concurrence in Brown, 521 P.2d at 543 based denial of the claim on being "purely economic, loss of profits" and, secondly, the loss was not "accidental." Brown cited Wulff v. Sprouse-Reitz Co., 262 Or. 293, 498 P.2d 766 (1972), where the defective electric blanket burned up the house.
The issue left open in Brown, 521 P.2d 537 of attribution of unreasonable dangerousness to only person or also to property was resolved in Russell v. Ford Motor Co., 281 Or. 587, 575 P.2d 1383 (1978) as man endangering. Certainly, a reeving block on a large crane equally meets the test with the defective weld on the axle housing in Russell.
Insofar as the premise of responsibility for the marketing of a dangerously defective product states a norm for the producer and seller, that norm either has or has not been met at the time the product is sold. Whether the seller has met this responsibility cannot depend on the fortuitous extent of the damage done when the danger created by the defect subsequently comes to pass. Moreover, if a plaintiff is able to trace the damage to the seller's negligence, he may recover for economic losses of a kind that the seller should have been able to foresee.
Id. 575 P.2d at 1386-87.
That court again distinguished between disappointed user and the endangered one:
The premise of his liability also controls its extent. The loss must be a consequence of the kind of danger and occur under the kind of circumstances, "accidental" or not, that made the condition of the product a basis for strict liability. This distinguishes such a loss from economic losses due only to the poor performance or the reduced resale value of a defective, even a dangerously defective, product. It is the distinction between the disappointed users in Price and Brown, and the endangered ones in Brownell v. White Motor Corp. [260 Or. 251, 490 P.2d 184 (1971)] and Wulff v. Sprouse-Reitz Co.
Id. 575 P.2d at 1387.
The relation between the terms given to damaged property and the ability to maintain a tort action under Illinois law was well illustrated in Kishwaukee Community Health Services Center v. Hospital Bldg. and Equipment Co., 638 F. Supp. 1492 (N.D.Ill. 1986). Kishwaukee Community Health Services Center analyzed the lead case in Illinois, Moorman Mfg. Co. v. National Tank Co., 91 Ill. 2d 69, 61 Ill. Dec. 746, 435 N.E.2d 443 (1982). That court said Moorman Mfg. Co. could be read to approve one (or more) of three tests. The "bright line" test this is the East River denial of recovery unless there is injury beyond the product allows a suit in tort if the damage involves anything other than the product itself. The "commercial expectation" test allows a suit in tort if the damage caused by a product's failure was unexpected. The "sudden and dangerous" test allows a suit in tort if the damage occurred suddenly and dangerously. Kishwaukee Community Health Services Center, 638 F. Supp. at 1497. Under Washington law, categories two and three would fall as a character risk of harm. The federal judge in Kishwaukee Community Health Services Center, 638 F. Supp. at 1499, under a post-East River exception in the Seventh Circuit Court of Appeals, observed "[t]he Seventh Circuit appears to reject the bright line test in favor of a commercial expectation approach and to be undecided in its views toward the sudden and dangerous test."
This case becomes complicated because the judge seems to reject recovery which East River would have permitted as damage to other property. Obviously, damage to other property is not economic damage within the linguistic adaptations found on the subject in these cases. Kishwaukee Community Health Services Center is one of the few cases where recovery is denied and which East River would have permitted.
Moorman Mfg. Co., 435 N.E.2d 443 is compatible with Washington Water Power *675 Co., 774 P.2d 1199 when it is cited for a result not recognized in Kishwaukee Community Health Services Center. The majority in Moorman Mfg. Co., 435 N.E.2d at 451 denied tort relief where the defect was qualitative and the harm related to the consumer expectancy of fitness for purpose:
The policy considerations against allowing recovery for solely economic loss in strict liability cases apply to negligence actions as well. When the defect is of a qualitative nature and the harm relates to the consumer's expectation that a product is of a particular quality so that it is fit for ordinary use, contract, rather than tort, law provides the appropriate set of rules for recovery.
That court further observed:
The demarcation between physical harm or property damage on the one hand and economic loss on the other usually depends on the nature of the defect and the manner in which the damage occurred.
Id. at 449. Cited as respectable authority was Cloud v. Kit Mfg. Co., 563 P.2d 248, 251 (Alaska 1977), which originated the sudden and calamitous damage factor. The special concurrence in Moorman Mfg. Co., 435 N.E.2d at 455 questioned defining economic loss based on absence or appearance of physical harm. That judge made an interesting comment which, if true, may account for the obvious trend toward the Washington Water Power Co., 774 P.2d 1199 risk of harm concept.
One should not have to choose wholesale between Santor v. A & M Karagheusian, Inc. (1965), 44 N.J. 52, 207 A.2d 305, and Seely v. White Motor Co. (1965), 63 Cal. 2d 9, 403 P.2d 145, 45 Cal. Rptr. 17; I believe the proper approach is to adopt the valid concerns behind each.
Moorman Mfg. Co., 435 N.E.2d at 456.
Scott & Fetzer Co. v. Montgomery Ward & Co., 112 Ill. 2d 378, 98 Ill. Dec. 1, 493 N.E.2d 1022 (1986) clarified that non-product property damage did not come within the economic loss doctrine of non-recoverable economic damage. The nature of the fire as sudden and dangerous was emphasized. The economic loss doctrine applied neither to fire damage to adjacent tenants nor to deny contribution to Montgomery Ward & Co. against the fire service equipment supplier. Lack of an accident in water damaged apartments denied punitive damages for any tort claim in Morrow v. L.A. Goldschmidt Associates Inc., 112 Ill. 2d 87, 96 Ill. Dec. 939, 492 N.E.2d 181 (1986). Similarly, faulty workmanship with damage not occurring from a sudden and dangerous occurrence bespoke to recovery denial within the economic damage doctrine in Foxcroft Townhome Owners Ass'n v. Hoffman Rosner Corp., 96 Ill. 2d 150, 70 Ill. Dec. 251, 449 N.E.2d 125 (1983). See Redarowicz v. Ohlendorf, 92 Ill. 2d 171, 65 Ill. Dec. 411, 441 N.E.2d 324 (1982). See likewise the recognition of the difference between deterioration and sudden and calamitous damage, Chicago Heights Venture v. Dynamit Nobel of America, Inc., 782 F.2d 723 (7th Cir.1986) (Illinois law), in finding economic loss within a qualitative defect reducing the consumer's expectation of a product's fitness.
The admiralty rule of East River compared to state law standards of product responsibility was defined in City of Greenville v. W.R. Grace & Co., 827 F.2d 975 (1987), reh'g denied 840 F.2d 219 (4th Cir.1988), which provided further authority for the Washington Water Power Co., 774 P.2d 1199 differentiation.[28]City of Greenville supplied Monokote fireproofing for the city hall construction. Six months after the manufacturer developed an asbestos free product, it continued to supply the old Monokote which contained the dangerous asbestos material. The circuit court affirms substantial judgments for both actual and punitive damages on a product *676 liability basis. East River was largely inapposite when lacking claim of injury or threat of injury to persons or other property. Conversely, the asbestos contained insulation material was a "product [which] threatens a substantial and unreasonable risk of harm * * *." City of Greenville, 827 F.2d at 978. It was noted the defense could not be justified on the basis that no one had "yet developed an asbestos-related disease." Id. at 978. See also Board of Educ. of City of Chicago v. A, C & S, Inc., 171 Ill. App. 3d 737, 121 Ill. Dec. 643, 525 N.E.2d 950 (1988), which is also a school asbestos material case. Comparable to City of Greenville is 2000 Watermark Ass'n, Inc. v. Celotex Corp., 784 F.2d 1183 (4th Cir.1986), where asphalt shingles were poorly but not dangerously manufactured and installed. The shingles might not shed the rain so long nor look so good as desired and expected when blistered, but they did not threaten life or other property.[29]
The product failure similar to Washington Water Power Co., 774 P.2d 1199 was litigated in Salt River Project Agr. Imp. and Power Dist. v. Westinghouse Elec. Corp., 143 Ariz. 368, 694 P.2d 198 (1984) claiming tort liability of a commercial seller to a commercial buyer. The district purchased a gas turbine generator which proved to have problems within its operating P-50 computer. A course of trouble lead to the purchase of a manual control LMC (Local Maintenance Controller) unit. The LMC malfunctioned when installed and 1.9 million dollars damage to the entire turbine resulted. In searching the interaction of tort and contract law, the court reached for definitional limitations where tort recovery for internal product damage might occur. The manner in which the loss occurred was next considered whether in accident or calamity.
Differentiated was the nature of the defect as defective in a way that poses an unreasonable danger to those that use or consume it or only found to be not fit for the intended purpose without unreasonable danger of causing injury to person or property. Last then considered was the type of loss or damage. The Arizona court recognized the fire and explosion was "not merely a commercial defect or `non-dangerous impairment of quality'" and recognized the endangered persons and other property from the accident for which tort law provides a proper rationale. Salt River Project Agr. Imp. and Power Dist., 694 P.2d at 210 (quoting Posttape Associates v. Eastman Kodak Co., 537 F.2d 751, 755 (3rd Cir.1976)). Salt River Project Agr. Imp. and Power Dist. also cited Arrow Leasing Corp. v. Cummins Arizona Diesel, Inc., 136 Ariz. 444, 666 P.2d 544 (1983) and Cloud, 563 P.2d at 251. That court then determined "[w]hether the major item of property damage is classified as a loss to other property of the plaintiff or a loss only to the defective product itself, [plaintiff] has a claim in tort * * *." Salt River Project Agr. Imp. and Power Dist., 694 P.2d at 210-11.[30] The court in Salt River *677 Project Agr. Imp. and Power Dist. then explored a further contention which apparently arises here of possible denial of tort remedy to a commercial user. The court found no justified reason for commercial user-consumer differentiation in right of tort remedy access.
Washington Water Power Co. and Salt River Project Agr. Imp. and Power Dist. both cited with approval and followed the name case on this subject from Alaska, Cloud, 563 P.2d 248, which is the progenitor of the economic damage recovery rule where unreasonable danger exists from faulty products. In Cloud, a rug pad ignited and caused a fire which destroyed the trailer house. Suit was filed in theories of strict liability, negligence and implied warranty. That court first recognized that property and personal physical injury should be similarly treated in the adaptation of product liability litigation. The question then was to distinguish between economic loss and direct property damage. The court, in adaptation of terms, defined that sudden and calamitous damage would almost always result in property damage as distinguished from deterioration, internal breakage and depreciation which that court defined as economic loss. The sudden, violent and calamitous harm justified tort recovery for the damaged trailer house and its contents.
West Virginia followed the same principle after review of nationwide precedent by statement in Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854, 859 (W. Va. 1982):
Physical harm to the defective product belongs with tort principles; reduction in value merely because of the product flaw falls into contract law. See, e.g., Gherna v. Ford Motor Co., 246 Cal. App. 2d 639, 55 Cal. Rptr. 94 (1966); Gibson v. Reliable Chevrolet, Inc., 608 S.W.2d 471 (Mo. App. 1981); Russell v. Ford Motor Co., 281 Or. 587, 575 P.2d 1383 (1978).
Therefore, we reject the line of cases begun by Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1964), which have permitted use of strict liability to recover the difference between the value of the product received and its purchase price in the absence of a sudden calamitous event. See, e.g., Cova v. Harley Davidson Motor Co., 26 Mich. App. 602, 182 N.W.2d 800 (1971); Air Products & Chemicals, Inc. v. Fairbanks Morse, Inc., 58 Wis. 2d 193, 206 N.W.2d 414 (1973) (applying Pennsylvania law). In West Virginia, property damage to defective products which results from a sudden calamitous event is recoverable under a strict liability cause of action. Damages which result merely because of a "bad bargain" are outside the scope of strict liability.
*678 Star Furniture Co. was followed by a federal court certification request in Basham v. General Shale, 377 S.E.2d 830 (W. Va. 1988), where the defective bricks in deterioration did not produce the required calamitous event.
In a most recent analysis, the West Virginia court effectively and directly considered East River and Star Furniture Co. where a 475B Michigan front-end loader was burned up by an alleged hydraulic fuel leak in its system (comparable to the fuel pump example, infra). Capitol Fuels, Inc., 382 S.E.2d 311. The strict liability based verdict for the buyer for the value of the destroyed machine was affirmed. That court continued its "intermediate position, * * *, where recovery is permitted for a defect in the product if it is dangerous to the users and destroys the product in a sudden calamitous event, * * *." Id. at 312.
What appears obvious from Star Furniture is that under the "bad bargain" concept, the fact that the product may be flawed or defective, such that it does not meet the purchaser's expectations or is even unusable because of the defect, does not mean that he may recover the value of the product under a strict liability in tort theory. The purchaser's remedy is through the Uniform Commercial Code. See Kesner v. Lancaster, ___ W. Va. ___, 378 S.E.2d 649 (1989). In order to recover under Star Furniture, the damage to the product must result from a sudden calamitous event attributable to the dangerous defect or design of the product itself.
In this case, we reaffirm our decision in Star Furniture. The front-end loader was not merely an ineffective product which failed to meet the customer's expectations. A defect in the front-end loader caused an abrupt fire which continued to burn until the loader was destroyed. The operator of the loader escaped without injury. The defect in the front[-]end loader created a potentially dangerous situation and the risk associated with the defect was not one ordinarily contemplated by a purchaser. Clearly, this is the type of property damage resulting "from a sudden calamitous event" which is recoverable under Star Furniture, ___ W. Va. at ___, 297 S.E.2d at 859.
Id. at 313.
Alaska's Cloud, 563 P.2d 248 was also followed in Georgia for a federal certification question in Vulcan Materials Co., Inc. v. Driltech, Inc., 251 Ga. 383, 306 S.E.2d 253, 257 (1983) (quoting Flintkote Co. v. Dravo Corp., 678 F.2d 942, 948 (11th Cir.1982)):
"The economic loss rule prevents recovery in tort when a defective product has resulted in the loss of the value or use of the thing sold, or the cost of repairing it. Under such circumstances, the duty breached is generally a contractual one and the plaintiff is merely suing for the benefit of his bargain. The rule does not prevent a tort action to recover for injury to other property and persons because the duty breached generally arises independent of the contract. Nor does it preclude recovery for damages to the defective product itself, where the injury resulted from an accident." (Footnote omitted.) (Emphasis supplied.)
See also Watkins v. Barber-Colman Co., Inc., 625 F.2d 714 (5th Cir.1980), where injuries resulted. Comparable in result is City of Franklin v. Badger Ford Truck Sales, Inc., 58 Wis. 2d 641, 207 N.W.2d 866 (1973), although the court did not make a specific finding of dangerousness of wheels that fell off of a fire engine when it was being driven around a corner. Confusion in terminology again is recognized in Cova v. Harley Davidson Motor Co., 26 Mich. App. 602, 182 N.W.2d 800 (1970) permitting tort recovery for the damaged product but perhaps not loss of profits in consequential damages. See, however, Mulholland, 443 N.W.2d 340. City of La Crosse v. Schubert, Schroeder & Associates, Inc., 72 Wis. 2d 38, 240 N.W.2d 124 (1976) followed City of Franklin, 207 N.W.2d 866 in tort recovery for other property as well as the faulty and damaged roof. Cova, 182 N.W.2d 800 was also cited with approval. Compare Sunnyslope Grading, Inc. v. Miller, Bradford and Risberg, Inc., 148 *679 Wis.2d 910, 437 N.W.2d 213 (1989), where dangerousness was not an issue and the decision was premised on the nature of the transaction as commercial with pure economic loss where adverse warranty terms existed. Sunnyslope Grading, Inc. was distinguished and the unreasonably dangerous rule applied in Tony Spychalla Farms, Inc. v. Hopkins Agr. Chemical Co., 151 Wis. 2d 431, 444 N.W.2d 743 (App. 1989). Defectiveness and unreasonable dangerous to the user or his property was the test applied for tort liability to a product purchased as a sprout suppressant for potatoes after an awarded and affirmed judgment of $227,050 for crop damage.
The potentially hazardous product was recognized in Pennsylvania in Industrial Uniform Rental Co., Inc. v. International Harvester Co., 317 Pa.Super. 65, 463 A.2d 1085 (1983), overruled sub nom. REM Coal Co., Inc. v. Clark Equipment Co., 563 A.2d 128 (Pa.Super. 1989), but the law of that state today seems less than definitive. Compare the federal court analysis in Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165 (3rd Cir.1981) with Aloe Coal Co. v. Clark Equipment Co., 816 F.2d 110 (3rd Cir.), cert. denied 484 U.S. 853, 108 S. Ct. 156, 98 L. Ed. 2d 111 (1987). However, in the latter case, the unreasonable dangerous nature of defect was not a considered issue.[31]
The Nebraska court has employed the unreasonably dangerous test in discussion and case analysis. In recent opinion, it said by quotation in National Crane Corp. v. Ohio Steel Tube Co., 213 Neb. 782, 332 N.W.2d 39, 43 (1983) to be followed in Nerud v. Haybuster Mfg., Inc., 215 Neb. 604, 340 N.W.2d 369, 375 (1983):
A majority of courts that have considered the applicability of strict liability to recover damages to the defective product itself have permitted use of the doctrine, at least where the damage occurred as a result of a sudden, violent event and not as a result of an inherent defect that reduced the property's value without inflicting physical harm to the product. See Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854 (W. Va. 1982). In essence, this court has reached the same result. See Morris v. Chrysler Corp., 208 Neb. 341, 303 N.W.2d 500 (1981).
In most recent decision, the Ohio Supreme Court forsook a Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965) posture, but moved no further than the Cloud, 563 P.2d 248 fortuity and dangerousness status. Chemtrol Adhesives, Inc. v. American Mfrs. Mut. Ins. Co., 42 Ohio St. 3d 40, 537 N.E.2d 624 (1989). Lacking a defect with an unreasonable risk of harm, strict liability would not lie. See, however, Mead Corp. v. Allendale Mut. Ins. Co., 465 F. Supp. 355 (N.D. Ohio 1979); Iacono v. Anderson Concrete *680 Corp., 42 Ohio St. 2d 88, 326 N.E.2d 267 (1975); and Note, Recovery of Direct Economic Loss: The Unanswered Questions of Ohio Products Liability Law, 27 Case W. Res. L. Rev. 683 (1977).
The New Jersey court "readjusted" its posture originally adopted in Santor, 207 A.2d 305 to create a differentiated rule for commercial transactions where tort remedies would be denied for the economic damage internal product defects and loss in Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 489 A.2d 660 (1985). However, neither that case nor more recent opinions from New Jersey have addressed the risk of harm-unreasonable danger or calamitous event subjects which are now before this court. See also Perth Amboy Iron Works, Inc. v. American Home Assur. Co., 226 N.J. Super. 200, 543 A.2d 1020 (1988). Cf. Dreier Co., Inc. v. Unitronix Corp., 218 N.J. Super. 260, 527 A.2d 875 (1986).
Within the volume of cases considered, an almost exact duplication in kind of equipment damage occurred in John R. Dudley Const., Inc. v. Drott Mfg. Co., 66 A.D.2d 368, 412 N.Y.S.2d 512 (1979). The crane boom suddenly collapsed without injury to people or damage to other property. The first inquiry was strict product liability recovery, although the only property damage was to the crane itself. The court distinguished the benefit of the bargain cases demonstrated by Santor, 207 A.2d 305 and granted relief by virtue of the nature of the accidental collapse and dangerous character of the alleged product defect. John R. Dudley Const., Inc. was followed by a number of New York cases which defined its scope to the same principles later enunciated in Washington Water Power Co., 774 P.2d 1199 and somewhat earlier in Cloud, 563 P.2d 248. In confinement of the principle involved in support for the decision made, see Schiavone Const. Co. v. Elgood Mayo Corp., 81 A.D.2d 221, 439 N.Y.S.2d 933 (1981), rev'd 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982), Silverman, J., dissenting, with dissent adopted in Trustees of Columbia University v. Exposaic Industries, Inc., 122 A.D.2d 747, 505 N.Y.S.2d 882 (1986); Hartford Ins. Group v. Curry Chevrolet Sales & Service, Inc., 119 A.D.2d 546, 500 N.Y.S.2d 720 (1986); and Schiavone Const. Co. v. Elgood Mayo Corp., 56 N.Y.2d 667, 451 N.Y.S.2d 720, 436 N.E.2d 1322 (1982). Cf. Graham v. Rockwell Intern. Corp., 135 A.D.2d 1128, 523 N.Y.S.2d 992 (1987) (dissent which compared factually the case with those where only the benefit of the bargain issues were presented, e.g., Hemming v. Certainteed Corp., 97 A.D.2d 976, 468 N.Y.S.2d 789 (1983)). See also other economic damage cases where clearly neither dangerousness nor calamitous events occurred, Krzys v. American Honda Motor Co., Inc., 124 A.D.2d 947, 508 N.Y.S.2d 355 (1986) and Cayuga Harvester, Inc. v. Allis-Chalmers Corp., 95 A.D.2d 5, 465 N.Y.S.2d 606 (1983).
The convergence of three cases provides for California a posture which is perhaps different on the subject of economic damages resulting from the damage to the product itself than perhaps exists in any other state. These cases are J'Aire Corp. v. Gregory, 24 Cal. 3d 799, 157 Cal. Rptr. 407, 598 P.2d 60 (1979); Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P.2d 1153 (1972); and Seely v. White Motors Co., 63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P.2d 145 (1965). In Seely, Justice Traynor initiated the counterpoint rule to Santor, 207 A.2d 305 in directing recourse to contract. Seely did not resolve nor consider the unreasonably dangerous, non-accidental divergence later developed for permitted recovery in tort as now most clearly identified in Washington Water Power Co., 774 P.2d 1199. Cronin, 501 P.2d 1153 deleted the requirement in California product liability cases to prove the factor of unreasonably dangerousness. See Recent Development, Products Liability Strict Liability in Tort: Defect Need Not Render Product "Unreasonably Dangerous" Cronin v. J.B.E. Olson Corp., 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P.2d 1153 (1972), 49 Wash. L. Rev. 231 (1973). See also Barker v. Lull Engineering Co., Inc., 20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 P.2d 443 (1978). J'Aire Corp., 598 P.2d 60 provided *681 a broad territory for recovery of economic damages under California law, including contractual and implied contractual proceedings as well as negligence claims. In result from these three cases, faulty product internal damage litigation has, as expressed by one commentator, tended to be targeted within theories of contractual adaptation. Rabin, Tort Recovery for Negligently Inflicted Economic Loss: A Reassessment, 37 Stan. L. Rev. 1513 (1985). See however Franklin, When Worlds Collide: Liability Theories and Disclaimers in Defective-Product Cases, 18 Stan. L. Rev. 974 (1966).
In California, economic recovery is permitted in negligence actions where the economic loss is especially foreseeable despite the absence of physical injury or property damage. Ales-Peratis Foods Intern., Inc. v. American Can Co., 164 Cal. App. 3d 277, 209 Cal. Rptr. 917 (1985). Consequently, the case is balanced upon a result which was clearly foreseeable rather than the product which was unreasonably dangerous. Pisano v. American Leasing, 146 Cal. App. 3d 194, 194 Cal. Rptr. 77 (1983). Compare, however, Kaiser Steel Corp. v. Westinghouse Elec. Corp., 55 Cal. App. 3d 737, 127 Cal. Rptr. 838 (1976); Gherna v. Ford Motor Co., 246 Cal. App. 2d 639, 55 Cal. Rptr. 94 (1966); and Fentress v. Van Etta Motors, 157 Cal. App.2d Supp. 863, 323 P.2d 227 (1958).[32]
The incongruity of the California law and any logical validity to a commercial setting dichotomy is currently illustrated by GEM Developers v. Hallcraft Homes of San Diego, Inc., 213 Cal. App. 3d 419, 261 Cal. Rptr. 626 (1989). That case should be carefully reviewed before adaptation of any California case is currently pursued to justify this majority opinion. The significant difference in GEM Developers is the insurance carrier paid part of the economic loss damages owed from a judgment based on strict liability, negligence and warranty and assigned its subrogation claims to the buyer. Here, Continental paid the damages and took the subrogation claim from the buyer.
C. The East River Minority Adaptations.
The contrary minority posture has been adopted by some states which do not follow the risk of injury status of Washington Water Power Co., 774 P.2d 1199 or its constituents of calamitous events or unreasonableness of danger. Apparently, five jurisdictions, by most recent case law, do follow East River through calamitous event and unreasonableness of danger from the product to tort claim denial. These jurisdictions include Missouri as determined in Sharp Bros. Contracting Co. v. American Hoist & Derrick Co., 703 S.W.2d 901 (Mo. 1986), with the decision created by the court's opinion of two members, two members specially concurring and three members dissenting. The dissent noticed the violent occurrence divergence from previous Missouri law. See Gibson v. Reliable Chevrolet, Inc., 608 S.W.2d 471 (Mo. App. 1980), which cited Cloud, 563 P.2d 248 with approval and recognized that in Clevenger and Wright Co. v. A.O. Smith Harvestore Products, Inc., 625 S.W.2d 906 (Mo. App. 1981), the calamitous event was not an external tornado. The court's opinion in Sharp Bros. Contracting Co., 703 S.W.2d 901 apparently adopted the conservative posture of Dean Keeton and denied consideration whether an accident should be a factor. See W. Prosser and W. Keeton, Law of Torts § 81 (5th ed. 1984). Another justice concurring in Sharp Bros. Contracting Co. found a basis for agreement by virtue of the commercial nature and equal bargaining power of the participants. The confusion engendered by the decision as to *682 whether the exclusion of the violent occurrence factor related both to commercial and consumer purchasers was cogently recognized in Note, Is the Ordinary Consumer Left With a Damaged Product and No Remedy?, 52 Mo. L. Rev. 961 (1987).
The second state that appears to have adopted the same posture, although the sporadic adaptations in the cases leaves this conclusion far from certain, is Minnesota. The lead case was Superwood Corp. v. Siempelkamp Corp., 311 N.W.2d 159 (Minn. 1981). Superwood Corp. responded to a federal certification where the cylinder on a hot plate press failed. The premise of denial of tort remedies arose out of the commercial nature of the transaction. In Superwood Corp., the question of a calamitous event or exceptional dangerousness of the product was not considered. Superwood Corp. was followed by St. Paul Fire and Marine Ins. Co. v. Steeple Jac, Inc., 352 N.W.2d 107 (Minn.App. 1984), where, with like result following litigation, a window washing unit had collapsed without personnel injury or other property damage. The appellate court noted "[t]he majority of the jurisdictions that follow Seely exclude from the definition of economic loss damages arising from an unreasonably dangerous defect. They characterize these damages as physical damage or physical injury. Damages caused by defects which are not unreasonably dangerous are defined as economic loss." Id. at 109 (emphasis in original and footnote omitted). The court said it had to follow Superwood Corp. to denial, but thought the United States Supreme Court should clarify their opinion. St. Paul Fire and Marine Ins. Co. provided no issue of dangerousness and was followed by Minneapolis Soc. of Fine Arts v. Parker-Klein Associates Architects, 354 N.W.2d 816 (Minn. 1984). The tort denial adaptation was again followed in S.J. Groves & Sons Co. v. Aerospatiale Helicopter Corp., 374 N.W.2d 431 (Minn. 1985), where a helicopter collapsed. In dissent, it was recognized that "[t]he majority reads this language [Superwood Corp.] to prevent recovery of those types of damages, even in cases involving `sudden and calamitous events.' Such a holding puts Minnesota very much in the minority. Superwood never intended such result." Id. at 435. Alabama also follows the East River rule, Lloyd Wood Coal Co. v. Clark Equipment Co., 543 So. 2d 671 (Ala. 1989); Dairyland Ins. Co. v. General Motors Corp., 549 So. 2d 44 (Ala. 1989).
The fourth state which may follow the same persuasion, or at least the dissent in the case thinks so, is Texas through Mid Continent Aircraft Corp. v. Curry County Spraying Service, Inc., 572 S.W.2d 308 (Tex. 1978). The difficulty in perception is both the majority and the minority cited the same case with approval, Nobility Homes of Texas, Inc. v. Shivers, 557 S.W.2d 77 (Tex. 1977), which clearly recognized unreasonably dangerous criteria permitting tort claims. At this time by the decision involving Clark Equipment Co. in REM Coal Co., Inc. v. Clark Equipment Co., 563 A.2d 128 (Pa.Super. 1989), the Pennsylvania law is similarly directed. To recognize the complexities, compare Construction Associates, Inc. v. Fargo Water Equipment Co., 446 N.W.2d 237 (N.D. 1989) with Frey Dairy, 886 F.2d 128.[33]
*683 V. OTHER PROPERTY
(FOR APPLICATION OF ANY EAST RIVER RULE)
A final aspect of this case remains. Realistically, at least for this subject, this court can claim case support not found for the other issues in its decision. We still need to consider the determination of what is other property when a constituent part of the equipment malfunctions and causes general damage. Specifically, this is the present case where the break up of the reeving block destroyed the crane boom. On duty to warn, this court had almost no authority to support its decision. On non-recognition of the risk of harm differentiation from economic damage recovery limitations, a clearly present minority view was selected. However, here on definition of other property, I would argue for what is probably an academic attainment if the other proper rules were followed, but in absence thereof, a minority posture among the many cases.[34]
Currently illustrative for an East River (admiralty) approach is Nicor Supply Ships Associates, 876 F.2d 501. The issues of the case and the singular amount of damage were arguably caused by a faulty fuel pump on the ship. The basic off-shore supply ship was modified by structural changes costing more than 7.8 million dollars by the time charterer who was then engaged in seismic activities with the modified ship. A fire at sea caused more than two million dollars damage to the vessel and about eight million dollars damage to the installed equipment. Owner Nicor Supply Ships and charterer Digicon sued General Motors Corporation which had produced the installed fuel pump. Nicor Supply Ships lost on a lack of proof on its failure to warn post-sale tort thesis.[35]
Digicon, as the time charterer, was granted the right by appellate decision to pursue loss or damage for what it had put on the ship and loss of profits from inability to use this "other property" unless the entire installation was a total loss. In distinguishing the case from Louis Dreyfus Corp. v. 27,946 Long Tons of Corn, 830 F.2d 1321 (5th Cir.1987), where loss of cargo and not other property had occurred, the Nicor Supply Ships Associates court informatively added for analysis of precedential value:
In a parenthetical description of another case, contained in a footnote, this court recently stated in Employers Ins. of Wausau v. Suwannee River Spa Lines, Inc. [866 F.2d 752, 763 n. 16 (5th Cir. 1989)] that the "loss of cargo is not damage to `other property' within [the] meaning of East River." That statement relies upon a similar observation in our earlier opinion in Louis Dreyfus Corp. v. 27,946 Long Tons of Corn. To the degree, if at all, that these statements suggest that the additions to the vessel involved in this case are not "other property," they are obiter dicta, not precedent. They may help to explain the rationale of the particular opinion in which they were uttered, but they do not bind us as the law of the circuit.
Nicor Supply Ships Associates, 876 F.2d at 506 (footnotes omitted).
The review justification is limited by the probability of dangerousness and calamitous event circumstance whenever a part *684 damages a significant contingent of the remaining machine. Be that as it may, I remain convinced that rights of recovery should not be defined by the accident of the company of installation of a particular part on the operational machine. How should it differ whether the furnace control unit came with the furnace or was later installed if thereafter to malfunction and cause damage to the entire furnace, the entire house or injury to the owner or house occupants? If the reeving block had been replaced by Ajax or Ho-Hum Manufacturing resulting in machine damage, why should it differ from the status where the reeving block had been left on the machine by Page? We opine to a very involved economic concept by differentiating rights of recovery, although the faulty part did the same thing and caused the same damage following installation by whoever. Fondyce Concrete, Inc. v. Mack Trucks, Inc., 535 F. Supp. 118 (D.Kan. 1982); Largoza, 538 F. Supp. 1164; Hales v. Green Colonial, Inc., 490 F.2d 1015 (8th Cir.1974); Firestone Tire & Rubber Co. v. Hall, 152 Ga. App. 560, 263 S.E.2d 449 (1979).
It is highly unlikely that for most integrated machines, the manufacturer actually fabricated most of the composite parts. I would consequently limit the scope of a single part defect non-tort recovery to whatever originally failed and not what it did to the other parts of the machine in failing. The courts that have declined this rational approach have espoused the intent to limit tort recovery. To reach a result by redefinition is, to me, unnecessary subterfuge. If the failed part is not unnecessarily dangerous or damage in occurrence reflects deterioration and depreciation as a denied benefit of the bargain, I would leave adjudication between the parties on straight contract or warranty standards no matter how much or how little of the entire machine was damaged.
However, where as here, the decisive factor is the character of the occurrence and the nature of the fault in the product. The standard to be followed should include recovery for all damage however incurred. I find it to be linguistically improper and logically unsound to call the crane damage in this case economic loss after the reeving block came apart and dumped the boom unit. Undoubtedly, there were significant additional economic losses sustained from down time and repair complexities, but these costs were neither claimed nor a part of this two million dollar damage litigation. Consequently, even if the minority rule on tort remedy availability is now adopted as proposed by this majority, I would leave application of the resulting economic damage limitation to the failed part and not deny recovery for other damage done to the balance of the machine, as well as other external property losses or personal injuries, if any are incurred.
VI. CONCLUSION
It is fair to conclude that Washington Water Power Co., 774 P.2d 1199 (Washington), Cloud, 563 P.2d 248 (Alaska), Salt River Project Agr. Imp. and Power Dist., 694 P.2d 198 (Arizona), John R. Dudley Const., Inc., 412 N.Y.S.2d 512 (New York), and Capitol Fuels, Inc., 382 S.E.2d 311 (West Virginia), as well as the other authorities noted reflect not only the developing direction of case law but socially appropriate engineered philosophy directed toward better product and a safer environment. Neither the pure East River idiom nor its half of a loaf commercial transaction offspring as a minority posture deserve adaptation for either consumer or commercial purchasers in this jurisdiction.[36] Confining recovery to contractual remedies makes no real sense. Today the reeving block, tomorrow the heating unit control or the vehicle fuel pump. Sometimes by fortuity, other property or personal injury will *685 not result but, unfortunately, fortuity is not continuity and with faulty and dangerous products, there will inevitably be injury and other property damage in time.
Finding error by this court in both misunderstanding the duty to warn claim and denial of access to the product liability claim, I respectfully dissent.
NOTES
[1] Denying appellants' motion for leave to amend, which was contemporaneous to the motion to dismiss/summary judgment, cannot be justified under Wyoming precedent. This majority violates the express terms of W.R.C.P. 15 and permits the trial court to flaunt Pace v. Hadley, 742 P.2d 1283 (Wyo. 1987); Torrey v. Twiford, 713 P.2d 1160 (Wyo. 1986); and Kimbley v. City of Green River, 663 P.2d 871 (Wyo. 1983).
[2] Appropriately to be realized is:
For whatever reason, be it an unacknowledged endorsement of caveat emptor, a quiet deference to the legislative enactment of the U.C.C., or a more fundamental inability to study and understand the issue, the courts have made a mess. The courts fail to consider, for instance, the definition of economic loss and whether the definition fits the facts in any given case. The courts generally disregard the basic policies which support imposition of strict liability in tort and their application to the question of economic loss recovery. The differences between the opposing theories of recovery are either ignored, assumed, or hopelessly confused, as is the question whether it makes any difference which theory is applied.
Comment, Agristor Leasing v. Spindler: Economic Loss, Strict Liability and the U.C.C. What a Mess, 34 S.D.L. Rev. 101, 103-04 (1989) (footnotes omitted).
[3] The reeving block costs approximately $80,000 to replace; the improved model was available for approximately $150,000. After the reeving block broke apart and caused the boom to collapse, the damage to the boom and bucket was $2,536,957. Replacement cost of the earth digging equipment was approximated to be $16,000,000 with its seventy-five cubic yard bucket and lifting capacity rated for 290,000 pounds or 145 tons per load. Reeving blocks are holders of cable pulleys used in the boom operation, lifting and movement processes.
[4] Continental Insurance Company and other insurance companies (designated collectively as Continental) paid for repair and present this litigation pursuant to a subrogation receipt. The appropriateness of the subrogation rights and process is not considered by the majority in its opinion and will not be pursued in this dissent. See Compass Ins. Co. v. Cravens, Dargan and Co., 748 P.2d 724 (Wyo. 1988) (Urbigkit, J., dissenting). Not pleaded and consequently not considered is whether some theory of equitable indemnity could have been pursued either by denial and litigation of the Bridger Coal claims or in this proceeding. See GEM Developers v. Hallcraft Homes of San Diego, Inc., 213 Cal. App. 3d 419, 261 Cal. Rptr. 626 (1989).
[5] I do not perceive the majority correctly references the next to the last paragraph of the decision letter for what it actually served to be. That sentence considers the approval as to form subject to Uniform Rules for the District Courts 404, which states:
Written judgments or orders shall be presented to the court within 20 days after its decision is made known. Before submitting the judgment or order the party drafting it shall secure the written approval of the opposing parties not in default.
In lieu of securing the approval of the opposing parties the party proposing the form of judgment or order may forward the original to the court and serve a copy on the other parties with a notice advising objections must be made within 5 days. If no objection is timely made, the court may sign the judgment or order. If objection is made, the court will resolve the matter.
Further right for Continental to make substantive argument was not addressed or provided by the foreclosing decision as then announced.
This court should take heed of advice given by one of the most thoughtful and scholarly appellate tribunals in this nation in an eighteen page extended tort case review:
The importance of today's decision lies not so much in its explication of the principles of tortious interference and defamation as in its signal to trial courts to approach with great caution applications for dismissal under [a motion to dismiss] for failure of a complaint to state a claim on which relief may be granted. We have sought to make clear that such motions, almost always brought at the very earliest stage of the litigation, should be granted in only the rarest of instances. If a complaint must be dismissed after it has been accorded the kind of meticulous and indulgent examination counselled in this opinion, then, barring any other impediment such as a statute of limitations, the dismissal should be without prejudice to a plaintiff's filing of an amended complaint.
Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 563 A.2d 31, 48 (1989).
[6] Since the opinion was written, an intermediate appellate court case has appeared deciding non-recovery for economic damages will similarly apply to failure to warn for strict liability in product liability within commercial transactions. Utah Intern., Inc. v. Caterpillar Tractor Co., 108 N.M. 539, 775 P.2d 741, cert. denied 108 N.M. 354, 772 P.2d 884 (1989).
[7] Failure to warn liability may arise from spectators watching alligators in a pond when they see wayward small children approach to swim. A bridge ahead is out occurrence likewise provides a cogent example. Inevitably presented is the legalistic and societalistic differences between a moral and legal duty to fellow humans. However, in product liability cases, the duty to warn also achieves two faces with first application to the dangerous product on initial sale and a different obligation for a previously sold product when the manufacturer or merchant comes to know that a failure of replacement or repair creates an unreasonable risk of danger of damage. The moral duty achieves a legal tort status liability responsibility.
[8] Hopkins v. Chip-In-Saw, Inc., 630 F.2d 616 (8th Cir.1980); Gordon v. Niagara Mach. & Tool Works, 574 F.2d 1182, reh'g denied 578 F.2d 871 (5th Cir.1978); Griggs v. Firestone Tire & Rubber Co., 513 F.2d 851 (8th Cir.), cert. denied 423 U.S. 865, 96 S. Ct. 124, 46 L. Ed. 2d 93 (1975); Sliman v. Aluminum Co. of America, 112 Idaho 277, 731 P.2d 1267 (1986), cert. denied ___ U.S. ___, 108 S. Ct. 2013, 100 L. Ed. 2d 601 (1988); West v. Broderick & Bascom Rope Co., 197 N.W.2d 202 (Iowa 1972); Connelly v. General Motors Corp., 184 Ill. App. 3d 378, 132 Ill. Dec. 630, 540 N.E.2d 370 (1989); Byrne v. SCM Corp., 182 Ill. App. 3d 523, 131 Ill. Dec. 421, 538 N.E.2d 796 (1989); Seibel v. Symons Corp., 221 N.W.2d 50 (N.D. 1974); Glittenburg v. Wilcenski, 174 Mich. App. 321, 435 N.W.2d 480 (1989); and Binder v. Jones & Laughlin Steel Corp., 360 Pa.Super. 390, 520 A.2d 863 (1987). Of interest is Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975), where negligent failure to warn justified recovery of cost of product destroyed, but not commercial or business losses; Hill v. Air Shields, Inc., 721 S.W.2d 112, 119 (Mo. App. 1986), where it was recognized: "Admittedly, if there is no warning, the manufacturer may reasonably assume that the user will neither read nor heed it."; Restatement (Second) of Torts, supra, § 388; and Wade, On the Nature of Strict Tort Liability for Products, 44 Miss. L.J. 825, 842 (1973). See Lambert, Tom on Torts, 32 ATLA Law Rep. 228, 235 (1989) and Annotation, Latent Danger Incident to Article Sold, 86 A.L.R. 947 (1933). See also Talmadge, Washington's Product Liability Act, 5 U. Puget Sound L. Rev. 1 (1981) which discusses the Washington statute where a specified post-manufacture duty to warn provision was also included in the statute.
[9] The Tenth Circuit Court of Appeals panel on rehearing added as a pertinent subject of review for this case:
The petition for rehearing has not convinced us that we should revise our opinion and require that any duty to warn claim be based solely on negligence principles.
Moreover, under Rule 18, Fed.R.Civ.P., "A defendant cannot compel a plaintiff to choose at his peril the theory upon which he intends to rely and thereby possibly defeat a recovery where two consistent, concurrent or cumulative theories can be urged without prejudice to the defendant's ability to defend." Senter v. B.F. Goodrich Company, 127 F. Supp. 705, 707-708 (D.Colo. 1954); see also Rule 318(a), Colorado Rules of County Court Civil Procedure (1970) (adopting Federal Rule 18 on joinder of independent or alternate claims); Fumer, Products Liability § 16.02[1] at 16-111, 16-112 (doctrine of election remedies has no place in products liability area as plaintiff should be allowed to submit to the jury all claims on which there is sufficient evidence). There is no evidence of prejudice here. On remand, the plaintiff may pursue duty to warn claims under both negligence and strict liability in tort theories.
Florom, 879 F.2d at 803. See likewise in tort theory pleading, Printing Mart-Morristown, 116 N.J. 739, 563 A.2d 31.
[10] An issue of unknown user duty to warn inquiry is not presented in this case because the sales transaction was between Page and Bridger Coal. Tate v. Robbins & Myers, Inc., 790 F.2d 10 (1st Cir.1986). A continued business relationship existed here.
[11] As William James said, the truth of an idea is not a stagnant property inherent in it. Truth happens to an idea. It becomes true. It is made true by events. Its verity is, in fact, an event, a process. The process namely of verifying itself is verification. Its validity is the process of its validation.
Here, the duty to warn speaks to practical and moral desirability of avoided harm. To know is to have an intelligible choice. To deny knowledge is to withhold both intelligence and choice. The duty to warn as a moralistic responsibility is not limited to continued use of a dangerous product. By legend in the old west, it was called putting caution before foolhardy courage or, if you do it, that may be the last mistake you will ever make.
[12] Caterpillar Tractor Company is a frequent visitor to these industrial product liability cases.
[13] Compare the defective milking machines where there was only economic damage in Mulholland, 443 N.W.2d 340, where this preclusive issue was not even considered in the first series of appeals.
[14] See Bland & Wattson, Property Damage Caused by Defective Products: What Losses are Recoverable?, 9 Wm. Mitchell L. Rev. 1, 4-5 (1983) (footnote omitted), which states:
The line between non-recoverable economic loss and recoverable property damage is not easy to draw. The courts have had difficulty defining "economic loss" in a manner which preserves the warranty concepts embodied in the Uniform Commercial Code as well as the tort concepts of negligence and strict liability. To classify a certain type of loss as "economic," however, is to predetermine its recoverability in negligence or strict liability.
It is the central strain of this dissent that adjudicatory deliberation is in many cases first made as to recoverability and then the curse of economic damage is thrown at the opinion to justify the predetermined denial. A large majority of economic loss denial cases involve direct property damage and not economic loss within any realistic definition of terms to determine.
It is interesting to note that those authors state "Texas is the only state to expressly refuse to allow recovery of damages for injury to the product itself, even if the injury results from an unreasonably dangerous defect in the product." Id. at 14. They then state "[t]he law of Minnesota is unclear as to the recoverability of damages for an injury to the product itself." Id. at 16.
See, however, the definition in Note, Economic Loss in Products Liability Jurisprudence, 66 Colum. L.Rev. 917, 918 (1966) (quoting from Fentress v. Van Etta Motors, 157 Cal. App.2d Supp. 863, 866, 323 P.2d 227, 229 (1958)) (footnotes omitted):
Property damage is usually readily distinguishable from economic loss. For example, operation of a defective radiator causes property damage when it results in a fire which destroys the plaintiff's store and economic harm when it results in conditions so uncomfortable that it causes the loss of customer patronage. At times, however, the distinction may be more difficult to draw. If A manufactures paste which it sells to B who uses it to cement shoes which he sells to C, a failure of the paste to properly adhere causes economic loss if it does not physically damage the shoes but merely renders them unsaleable; on the other hand, a defect in the paste which physically damages the shoes causes property loss. If the damage is to the defective product itself, similar distinctions must be drawn. When the defect causes an accident "involving some violence or collision with external objects," the resulting loss is treated as property damage. On the other hand, when the damage to the product results from deterioration, internal breakage, or other non-accidental causes, it is treated as economic loss. It is also important to distinguish between "direct" and "consequential" economic loss. Direct economic loss may be said to encompass damage based on insufficient product value; thus, direct economic loss may be "out of pocket" the difference in value between what is given and received or "loss of bargain" the difference between the value of what is received and its value as represented. Direct economic loss also may be measured by costs of replacement and repair. Consequential economic loss includes all indirect loss, such as loss of profits resulting from inability to make use of the defective product.
A somewhat different definitional approach is stated in Note, Products Liability: Expanding the Property Damage Exception in Pure Economic Loss Cases, 54 Chi-Kent L. Rev. 963 (1978).
[15] "[N]o precise distinction can be made between property damage and economic loss." Ribstein, Guidelines for Deciding Product Economic Loss Cases, 29 Mercer L. Rev. 493, 511 (1978).
[16] Conversely defined, the author in Comment, supra, 4 Seton Hall L. Rev. at 154-55 (emphasis added and footnote omitted) states:
Purely economic losses may be classified into two basic categories: direct economic losses and indirect or consequential economic losses. A direct economic loss includes a diminution in the value of the product as measured by the difference between the purchase price or value of the product as represented to the purchaser and the value of the product after discovery of the defect. This type of direct economic loss is known as a loss of bargain. A direct economic loss also includes whatever repair costs may be incurred in repairing the defective product and any direct incidental expenditures which may be incurred in replacing a defective product which cannot be repaired. On the other hand, indirect or consequential economic losses include both losses of future business profits and business opportunities. Such losses are commonly referred to as expectation losses. Consequential economic losses also include any indirect loss resulting from the consumer's inability to secure an effective cover or replacement for the defective product.
It is noted the author concluded "the manufacturer should generally be held liable for the full extent of [what he classified as] direct economic loss." Id. at 182.
The genius of the common law lies in its ability, when presented with a new problem, to provide a remedy and, thereafter, to find or to develop a legal theory to justify it. When the problems of direct and consequential economic loss were first seriously proposed as compensable injuries, the courts had difficulty finding an acceptable legal basis upon which to justify recovery. As a result, sympathetic courts were forced to justify recovery upon that old standby, public policy, and numerous other legal fictions. This ad hoc approach has developed into a hopeless morass of conflicting legal rationales and theories of recovery.
Id. at 183 (footnote omitted). See likewise Note, supra, 54 Chi-Kent L. Rev. 963 with the broad expansive rule then confined by a consumer expectation.
[17] This analysis attunes to the direction of some cases in analysis parallel with East River S.S. Corp., 476 U.S. 858, 106 S.Ct. at 2295 that the character of the buyer and his purpose of using may determine compensability in any particular case. The arbitrary differentiation of users into either a commercial or consumer buyer as the test of providing litigative protection is, in itself, an interesting due process and equal protection inquiry not pursued here.
[18] The recovery denial cases provide another incongruity which results from using justification in East River to create a rule for application. It is stated "in commercial settings when there is no large disparity in bargaining power, economic losses from a product injuring itself cannot be recovered in actions for strict products liability or negligence in manufacture or failure to warn." Utah Intern., Inc., 775 P.2d at 745.
Consequently, this adaptation adds two additional factors to the rule. First, the principle is limited to commercial transactions, whatever that means, and to equals in bargaining power, however that is to be judged or computed.
How this rule is to be differently applied to the leaking fuel pump that burns up the car, house and maybe the owner as compared to the commercial trucker where the truck, the garage and perhaps the driver are similarly at risk is not logically established. Cf. Nicor Supply Ship Assoc., 876 F.2d 501.
[19] A well-cited review, Note, Privity Revisited: Tort Recovery by a Commercial Buyer for a Defective Product's Self-Inflicted Damage, 84 Mich.L.Rev. 517, 521 (1985), finds within the cases "four different approaches to determining whether a tort recovery is available for a product's self-inflicted damages." That author states:
1. Deny recovery for a defective product's self-inflicted damages for the reason that economic loss is coincidental with physical damage. Note, supra, 84 Mich.L.Rev. at 521 (citing Mid Continent Aircraft Corp. v. Curry County Spraying Service, Inc., 572 S.W.2d 308 (Tex. 1978)). See, however, Note, Torts Strict Product Liability Strict Liability in Tort Allows Recovery for Physical Harm to the Product Itself Unless Parties of Equal Bargaining Strength Expressly Waive Tort Liability. Mid Continent Aircraft Corp. v. Curry County Spraying Service, Inc., 553 S.W.2d 935 (Tex.Civ.App. Amarillo 1977, writ granted), 9 Tex.Tech L.Rev. 733 (1978).
2. "[T]he fact that a defective product's self-inflicted damage is coincident with economic loss does not make it any the less physical damage," and, consequently, recovery is justified in tort. Note, supra, 84 Mich.L.Rev. at 521 (citing Santor v. A & M Karagheusian, Inc., 44 N.J. 52, 207 A.2d 305 (1965)).
3. The third rule stated is: "Not surprisingly, a majority of courts have turned to a third approach, based upon the landmark decision of Seely v. White Motor Co., [63 Cal. 2d 9, 45 Cal. Rptr. 17, 403 P.2d 145 (1965)]. The Seely court reasoned that a requirement for the imposition of strict tort liability is the existence of an unreasonably dangerous defect, so that only contractual remedies should be available for ordinary qualitative defects." Note, supra, 84 Mich.L.Rev. at 522 (footnote omitted). (The author is dead wrong in analysis of Seely, but the statement is clearly applicable to Washington Water Power Co. v. Graybar Elec. Co., 112 Wash.2d 847, 774 P.2d 1199, amended 779 P.2d 697 (1989).)
4. The fourth approach turns to contract law and introduces as a key factor the existence of privity. Note, supra, 84 Mich.L.Rev. at 523.
Realistically, few cases are confirmable in result by use of this definitional analysis.
[20] Confusion still remains as to what constitutes the defined economic damage for which the rules will be applied. The subject of a proper definition of economic damage will be considered in the fifth major segment of this dissent regarding "Other Property."
[21] There are a line of cases where dangerousness is absent that apply the rule of no recovery for economic loss unless contractual provisions would allow such recovery. These are the contra-Santor cases. See Note, Manufacturers' Liability to Remote Purchasers for "Economic Loss" Damages Tort or Contract?, 114 U.Pa.L.Rev. 539 (1966). Cf. Wade, Tort Liability for Products Causing Physical Injury and Article 2 of the U.C.C., 48 Mo.L.Rev. 1 (1983) where, without unreasonable dangerousness, the buyer cannot achieve the benefit of his anticipated bargain by any non-contractual theory. This is the "damned poor product, so what?" application of law to the American industrial product arising from the generation of greed and the era of irresponsibility. See Hart Engineering Co. v. FMC Corp., 593 F.Supp 1471, 1483 (D.R.I. 1984), where that court stated::
There is no parallel rationale, however, for extending this special prophylaxsis to provide relief for mere disappointment in product performance. In such circumstances, the same imbalance is not present; and the need for an expansive rendering of legal rights and remedies is considerably less. As the Purvis [Purvis v. Consolidated Energy Products Co., 674 F.2d 217, 222-23 (4th Cir.1982)] court remarked:
All products carry the risk that they will serve their intended function poorly. In this sense, the risk of "ordinary" malfunctions is well within the contemplation of the average purchaser.
The author then quotes from Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp., 626 F.2d 280, 288-89 (3rd Cir.1980):
[T]he Third Circuit phrased the ratio decidendi for the rules as follows:
The rationale behind strict liability in personal injury situations is not well-suited to claims alleging only economic loss. Economic loss results from the failure of the product to perform to the level expected by the buyer and the seller. Such loss is most frequently measured by the cost of repairing the infirmity or by the difference in the value of the product as it exists and the value it would have had if it performed as expected. Thus, economic loss is almost always incurred by the owner of the product, not by persons who merely use it or come into contact with it.
Hart Engineering Co., 593 F. Supp. at 1483.
In sum, the better rule seems undeniably to be that the law of contracts is the vehicle of choice to redress a purchaser's unrequited expectations of product efficacy, at least where (as here) the parties are in privity of contract and have had ample opportunity to allocate the risks involved. In those regrettable instances where the product turns sour and proves to be a lemon, dulcification should flow from the terms of the bargain, not from the vagaries of negligence law. To permit recovery of purely economic losses in such circumstances would, unless by happy coincidence such recovery was consistent with the agreement between the contracting parties, undermine the very foundations upon which business transactions have historically been built. Thus, to couple product disappointment with traditional notions of tort recoupment in such a context would be to mix matter and anti-matter; the resultant amalgam would be much too volatile to make sense in a commercial setting.
Id. at 1484. The sewer sludge pump did not perform. Richard O'Brien Companies v. Challenge-Cook Bros., Inc., 672 F. Supp. 466 (D.Colo. 1987) (the concrete pumps did not perform); Copiers Typewriters Calculators, Inc. v. Toshiba Corp., 576 F. Supp. 312 (D.Md. 1983) (the photocopiers did not reproduce); Frey Dairy, 680 F. Supp. 253 (the feed silos worked improperly); Allen v. Toshiba Corp., 599 F. Supp. 381 (D.N.M. 1984) (the photocopiers did not reproduce); Anglo Eastern Bulkships, Ltd. v. Ameron, Inc., 556 F. Supp. 1198 (S.D.N.Y. 1982) (the tank coating did not protect the ship container facilities); Cincinnati Gas & Elec. Co. v. General Elec. Co., 656 F. Supp. 49 (S.D.Ohio 1986) (the nuclear plant material could not handle temperatures and forces involved); Argo Welded Products, Inc. v. J.T. Ryerson Steel & Sons, Inc., 528 F. Supp. 583 (E.D.Pa. 1981) (the steel did not meet fabrication requirements); Klo-Zik Co. v. General Motors Corp., 677 F. Supp. 499 (E.D.Tex. 1987) (the truck motors did not perform); and Roxalana Hills, Ltd. v. Masonite Corp., 627 F. Supp. 1194 (S.D.W.Va. 1986), aff'd 813 F.2d 1228 (4th Cir.1987) (the stucco did not last in West Virginia weather).
We can set aside, for the purpose of this drag line collapse, those industry failure cases since immediate catastrophic events here did directly threaten greater damage where product failure put other property or life at risk.
[22] See Note, supra, 9 Tex.Tech.L.Rev. 733 and Note, Products Liability in Commercial Transactions, 60 Minn.L.Rev. 1061 (1976). See also Note, supra, 84 Mich.L.Rev. 517.
[23] Significant federal case law supports tort remedies for unreasonable danger. Product damage cases are the moderate majority posture. See, as examples, Dixon v. International Harvester Co., 754 F.2d 573 (5th Cir.1985); Two Rivers Co. v. Curtiss Breeding Service, 624 F.2d 1242, reh'g denied 629 F.2d 1350 (5th Cir.1980), cert. denied 450 U.S. 920, 101 S. Ct. 1368, 67 L. Ed. 2d 348 (1981) (defective bull semen); and Texsun Feed Yards, Inc. v. Ralston Purina Co., 447 F.2d 660 (5th Cir.1971) (Texas law applied to weight gain of product-fed cattle).
[24] a period in which the law is constantly expanding to protect new interests, the loudest debate is too often between those advocating no change at all and those demanding substantial revision of the legal fabric; too often ignored are the narrow distinctions of degree which make the law rational and coherent. Yet in the area of economic loss no fruitful inquiry is possible without close consideration of underlying factors which do, in fact, dictate the drawing of fine distinctions. Hopefully, in deciding whether to expand manufacturer's liability to encompass economic loss, courts will not reach results by inadvertence, but instead will focus on the policies to be furthered by each decision.
Note, supra, 66 Colum.L.Rev. at 966.
[25] The commercial enterprise justification or limitation is the most confusing and logically irrational factor of East River. If a product is dangerous, it will be dangerous to people even if purchased by large corporations. How can a rule be properly injected between one of the few remaining American (or more prevalent foreign) manufacturers and a mom and pop small business corporation or the family farmer? The thesis of justified dangerousness in commercial activity as an acceptable risk lacks any conceivable logic. It is here the inquiry of whether there is a tort without damage or lacking remedy is jost visibly presented. The factual and principled justification for East River rests with the character of seller-buyer relationship, but case application tends to suggest that the justification may be disregarded and the concept applied even if either a "consumer" transaction exists or the bargainers are not equal in economic muscle.
[26] In academic analysis, the economic damage case law, decisions and discussion line up in the following array of concepts. Uniformity of result does not exist and little consistency to decision can be perceived. California law, as discussed infra, probably does not fall within any of these categories as apparently applying a particularized contract approach.
1. Santor economic damage recoverable in tort including obsolescence and wear out. Generally abandoned concept.
2. No unreasonable danger or catastrophic event failure. Relief confined to contract. This includes obsolescence, wear out and insufficiencies of performance cases. The predominate rule denies tort recovery by general citation of the California case of Seely, 403 P.2d 145.
3. Unreasonable dangerousness and/or catastrophic event failure. This, as the case at hand in majority perspective, permits recovery for economic damages. This is the Cloud v. Kit Mfg. Co., 563 P.2d 248 (Alaska 1977); Washington Water Power Co., 774 P.2d 1199; and Star Furniture Co. v. Pulaski Furniture Co., 297 S.E.2d 854 (W. Va. 1982) liability principle.
4. East River totally applied. No economic damage is recoverable if damage results only to the equipment machine or entire facility of which the faulty part is a constituent part.
5. East River commercial purchaser bargain equal adaptation where the East River denial rule is applied but only to commercial transactions as distinguished from consumer transactions and buyer and seller are bargaining equals.
Clearly, the essential issue presented here is whether the reeving block failure brings Continental into a category three standard as the majority rule or whether this court elects to adopt either the fourth or fifth East River applications. It is absolutely impossible to tell from East River and succeeding federal case law whether that finite authority is category four or five. Obviously, most admiralty cases would likely be more commercial than consumer, whatever the difference may be.
[27] In an even more case of curious text is the most recent case of Mulholland, 443 N.W.2d 340. The case involved what is generally classified as economic loss, but the differentiated economic loss rules were not discussed. At issue was an alleged faulty milking system supplied by the defendant. Purchaser sued for breach of warranty, negligence in design and manufacture and failure to warn. An expert witness was rejected as unqualified and a directed verdict for defendant granted on failure of proof of casual relation between alleged faulty product and the economic damages sustained of damage to the milk herd and loss of milk production. A Michigan court of appeals decision affirmed the trial court and the Supreme Court reversed. The direct issue advised was qualification of the expert witness. It is clear in case discussion that the court, in analysis, perceived a claim was stated in tort as well as contract. The validity of the economic damage claims in tort seems to have been assumed by the discussion and decision which generally reversed the directed verdict.
[28] City of Greenville should have particular present pertinence to the City of Casper where a major high school was closed and school sessions put on split shift because of asbestos contamination recently discovered in the building. It may seem sometimes that jurists write for academia beyond the real world. Product liability and asbestos problems contra-indicate and demonstrate that a real world exists for opinion discussion. See, however, Comment, Asbestos in Schools and the Economic Loss Doctrine, 54 U.Chi.L.Rev. 277 (1987).
[29] A substituted used repair part which caused a converted aircraft engine to explode resulting in severe damage to the engine produced an interesting by-play in expression between the majority and minority in Consumers Power Co. v. Curtiss-Wright Corp., 780 F.2d 1093 (3rd Cir.1986). The majority said:
It is pure fortuity that the explosion that reduced Consumers Power's engine to scrap did not damage any person or property nearby. The defective compressor disc did not lead merely to a loss of efficiency or a decline of profits; the disc's failure caused a sudden, violent and calamitous accident which posed a serious threat to persons and property. The damage caused by the explosion is property damage, not economic loss.
Id. at 1099. The dissent then said:
The fortuity that personal injury or outside property damage might occur in addition to injury to the defective product does not require a different rule with respect to economic loss. To deviate from the basic rule would lead to speculation and inquiry unrelated to the negotiations between the commercial entities.
Id. at 1102. How fortuity is a proper concept defining an exploding motor and consequent risk to persons or property is unexplained.
[30] In its analysis to draw the line between contract and tort, the Arizona tribunal developed five hypotheticals to illustrate the problems addressed. In all five hypotheticals, a new LMC unit with an unreasonably dangerous and undiscovered defect was installed in the previously purchased turbines. Subsequently, the unit malfunctioned causing the losses and damages illustrated:
At Plant # 1, the defect caused the LMC to malfunction at a time when the plant engineer was aloft on a catwalk inspecting one of the turbines controlled by the LMC. The force of the resulting explosion (accident) knocked the engineer to the floor, injuring him.
At Plant # 2, the same malfunction affected only one turbine, which accidentally caught on fire and was completely destroyed.
At Plant # 3, the defect caused the LMC to malfunction and burn. The fire department responded quickly, so none of the turbines or other property located near the LMC was damaged in the accident.
At Plant # 4, the plant engineer discovered the defect in the LMC and was able to shut down the turbines and replace the LMC before any damage occurred. However, the LMC replacement cost to [plaintiff] is $50,000, including shutdown, start-up and testing costs.
At Plant # 5, during a peak demand period, the LMC malfunctioned and failed to start all four of the gas turbines. The plant was down for twenty-four hours. As a result, [plaintiff] could not deliver electricity to its numerous commercial and residential users. [Plaintiff] not only lost all the profits anticipated from the sales to those consumers but must replace the LMC and faces lawsuits by some of its large commercial users.
Salt River Project Agr. Imp. and Power Dist., 694 P.2d at 208.
From the illustration, the court found unanimous authority that the damages at plant one and plant two were recoverable, a split of authority in plant three determined by the unreasonably dangerousness rule in application or rejection, and a majority rule for denial of economic losses in plants four and five. The turbine in Salt River Project Agr. Imp. and Power Dist. and the reeving block in Continental have identical placements within the hypotheticals as a plant three occurrence dependent on definition of "other property."
[31] The court in Aloe Coal Co., 816 F.2d at 119 (quoting East River S.S. Corp., 106 S.Ct. at 2303), in making its "studied conclusion" or more accurately an "educated guess," related that "[i]n our present analysis, a murky trudge through sophisticated nuances gives way to an unencumbered flight to basics. Damage to a product means simply that the customer has received `insufficient product value.'" That court also related "[w]e recognize that our conclusion may not be considered congruent with two recent cases in the Pennsylvania intermediate appellate court. * * * These pronouncements have made our task more uncertain than it otherwise would be, yet do not dissuade us from our ultimate conclusion" in review of Industrial Uniform Rental Co., Inc., 463 A.2d 1085, which embraced Pennsylvania Glass Sand Corp., 652 F.2d 1165 and Johnson v. General Motors Corp., 349 Pa.Super. 147, 502 A.2d 1317 (1986), overruled sub nom. REM Coal Co., Inc. v. Clark Equipment Co., 563 A.2d 128 (Pa.Super. 1989). Aloe Coal Co., 816 F.2d at 118. See likewise King v. Hilton-Davis, 855 F.2d 1047 (3rd Cir.1988), cert. denied ___ U.S. ___, 109 S. Ct. 839, 102 L. Ed. 2d 971 (1989). While this dissent was in preparation for publication, the Superior Court of Pennsylvania released REM Coal Co., Inc. v. Clark Equipment Co., 563 A.2d 128 (Pa. Super. 1989). REM Coal Co., Inc. follows Aloe Coal Co., 816 F.2d 110 in intermediate court reversal of Johnson, 502 A.2d 1317 and Industrial Uniform Rental Co., Inc., 463 A.2d 1085. Pennsylvania law will probably remain unsettled in historical progression until the supreme court of that state determines whether and how far it will follow East River or follow the persuasion of the lead cases from Alaska, Washington and West Virginia in considering dangerousness and sudden catastrophe, e.g., Washington Water Power Co., 774 P.2d 1199; Cloud, 563 P.2d 248; and Star Furniture Co., 297 S.E.2d 854.
[32] In East River S.S. Corp., 476 U.S. at 869 n. 4, 106 S. Ct. at 2301 n. 4, the United States Supreme Court took notice of the New Jersey and California developments:
Interestingly, the New Jersey and California Supreme Courts have each taken what appears to be a step in the direction of the other since Santor and Seely. In Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J., at 579, 489 A.2d, at 672, the New Jersey court rejected Santor in the commercial context. And in J'Aire Corp. v. Gregory, 24 Cal. 3d 799, 157 Cal. Rptr. 407, 598 P.2d 60 (1979), the California court recognized a cause of action for negligent interference with prospective economic advantage.
[33] There are a significant number of cases where denied recovery of economic damages were either clearly within the unachieved benefit of the bargain classification or exceptional dangerousness did not exist or was never considered by the litigants or appellate court. Twin Disc, Inc. v. Big Bud Tractor, Inc., 772 F.2d 1329 (7th Cir.1985) (Wisconsin law); Purvis v. Consolidated Energy Products Co., 674 F.2d 217 (4th Cir.1982) (diversity case, South Carolina law); S.M. Wilson & Co., 587 F.2d 1363 (California law, diversity case); Posttape Associates, 537 F.2d 751 (law of Pennsylvania, diversity case); Hart Engineering Co., 593 F. Supp. 1471; Arrow Leasing Corp., 666 P.2d 544; Sacramento Regional Transit Dist. v. Flxible, 158 Cal. App. 3d 289, 204 Cal. Rptr. 736 (1984); Kaiser Steel Corp., 127 Cal. Rptr. 838; Florida Power & Light Co., 510 So. 2d 899; Clark v. International Harvester Co., 99 Idaho 326, 581 P.2d 784 (1978); Alfred N. Koplin & Co., Inc. v. Chrysler Corp., 49 Ill. App. 3d 194, 7 Ill. Dec. 113, 364 N.E.2d 100 (1977); Prairie Production, Inc. v. Agchem Division Pennwalt Corp., 514 N.E.2d 1299 (Ind. App. 1987); McGhee, 296 N.W.2d 286; Clevenger and Wright Co., 625 S.W.2d 906; Hagert v. Hatton Commodities, Inc., 350 N.W.2d 591 (N.D. 1984).
[34] A number of cases provide an easy factual answer to the defective product causing damage to other property categorization. Hales v. Green Colonial, Inc., 490 F.2d 1015 (8th Cir.1974) (defective heater burned up building); Largoza, 538 F. Supp. 1164 (refrigerator caught fire and burned up house); Romano, 336 A.2d 555 (television set exploded and set fire to the house). Not so clearly identified was the concrete mixer that fell off of the truck chassis and caused damage to both the chassis and mixer. A successful claim was made for recovery under negligence for all damage. United States Fidelity & Guar. Co. v. Truck & Concrete Equipment Co., 21 Ohio St. 2d 244, 257 N.E.2d 380 (1970). See also Fondyce Concrete, Inc. v. Mack Trucks, Inc., 535 F. Supp. 118 (D.Kan. 1982) and Wulff, 498 P.2d 766. The differentiation of recoverability is between the bucket on the drag line and the wheelbarrow on the ground if destroyed when the reeving block disintegrates. See Firestone Tire & Rubber Co. v. Hall, 152 Ga. App. 560, 263 S.E.2d 449 (1979) (defective tire destroyed truck).
[35] Miller Industries, 733 F.2d 813 and McConnell, 646 F. Supp. 1520 were consequently inapplicable as a matter of presented evidence.
[36] Otherwise, we fail to:
Rather than contribute yet another unexplained and unreasoned decision to the economic loss pile, the court could instead carefully consider the problems of definition and commercial transactions. The court could base its decision on a carefully articulated argument that the public policy which supports strict liability does or does not extend to economic loss.
Comment, supra, 34 S.D.L.Rev. at 136. I would hope with that author for "something better." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599244/ | 729 So. 2d 426 (1999)
LIBERTY MUTUAL INSURANCE COMPANY, INC., Appellant,
v.
William M. LEDFORD and Kathy L. Ledford, as parents and natural guardians of Talaya Shan Dale Smith, and the City of Avon Park, Appellees.
No. 98-01330.
District Court of Appeal of Florida, Second District.
February 19, 1999.
Rehearing Denied March 23, 1999.
Jonathan B. Trohn and Christine C. Daly of Lane, Trohn, Bertrand & Vreeland, P.A., Lakeland, for Appellant.
C. Kenneth Stuart, Jr., Lakeland, for Appellees, William M. Ledford and Kathy L. Ledford.
No appearance by the City of Avon Park.
PARKER, Chief Judge.
Liberty Mutual Insurance Company, Inc. (Liberty Mutual) appeals the trial court's order denying its motion for a new trial in this uninsured motorist (UM) coverage case. We agree that the trial court incorrectly entered a declaratory judgment in favor of William M. Ledford and Kathy L. Ledford, as parents and natural guardians of Talaya *427 Shan Dale Smith (the Ledfords) finding that Liberty Mutual had not obtained an informed, knowing rejection of statutory UM coverage. Accordingly, we reverse.
This cause of action arose from an accident in which Talaya, a passenger in a vehicle insured by Liberty Mutual, was severely injured by an uninsured motorist. When Liberty Mutual disputed the amount of UM coverage available under the insurance policy, the Ledfords brought a declaratory judgment action to determine the amount of coverage, and the trial court's order resulted in the first appeal to this court. In Liberty Mutual Insurance Co. v. Ledford, 691 So. 2d 1164, 1168 (Fla. 2d DCA 1997) (Ledford I), this court reversed a declaratory judgment finding that Liberty Mutual had not obtained an informed, knowing rejection of statutory UM coverage because of the trial court's refusal to admit relevant documentary evidence. The facts of this dispute are fully set out in Ledford I.
Following this court's remand to the trial court, this case proceeded to jury trial where the jury returned a verdict finding that Liberty Mutual had not obtained an informed, knowing rejection of statutory UM coverage. Thereafter, the trial court rendered a final judgment finding coverage in the amount of $750,000. The trial court denied Liberty Mutual's motion for new trial.
On appeal, Liberty Mutual argues that it is entitled to a presumption that it had obtained an informed, knowing rejection of statutory UM coverage because it presented a rejection form that complied with the statutory requirements. Liberty Mutual also argues that the trial court made two erroneous evidentiary rulings. We summarily deny Liberty Mutual's challenge to the evidentiary rulings. However, we reverse because we find that Liberty Mutual was entitled to the statutory presumption as a matter of law.
Under section 627.727(1), Florida Statutes (1991), the amount of UM coverage is equal to the amount of bodily injury liability purchased by an insured, unless the insured rejects UM coverage or selects lower limits of UM coverage. See Chmieloski v. National Union Fire Ins. Co., 563 So. 2d 164, 166 (Fla. 2d DCA 1990). With regard to the rejection or selection of UM coverage, section 627.727(1), Florida Statutes (1991), specifically provides:
The rejection or selection of lower limits shall be made on a form approved by the Insurance Commissioner. The form shall fully advise the applicant of the nature of the coverage and shall state that the coverage is equal to bodily injury liability limits unless lower limits are requested or the coverage is rejected. The heading of the form shall be in 12-point bold type and shall state: "You are electing not to purchase certain valuable coverage which protects you and your family or you are purchasing uninsured motorist limits less than your bodily injury liability limits when you sign this form. Please read carefully." If this form is signed by a named insured, it will be conclusively presumed that there was an informed, knowing rejection of coverage or election of lower limits on behalf of all insureds.
In the instant case, the insurance policy had bodily coverage in the amount of $750,000. However, Liberty Mutual presented a signed rejection form that selected UM coverage of $20,000. It is undisputed that the rejection form complied with the requirements of section 627.727(1). The Ledford's argue that Liberty Mutual was not entitled to the presumption because the account number on the rejection form does not match the account number on the insurance policy.[1] We conclude that the Ledfords' argument fails because, as this court noted in Ledford I, the rejection form clearly applied to the insurance policy. See Liberty Mut. Ins. Co. v. Ledford, 691 So. 2d 1164, 1168 (Fla. 2d DCA 1997) ( "there was competent evidence on the face of both documents directly linking them to each other").
The declaration page of insurance policy AS7-151-210841-102 stated that it was a *428 "REWRITE OF AS2-151-210841-012." The policy number on the rejection form is AS2-151-210841-012. Additionally, the insurance policy contained the following language in its declaration: "The limit of insurance referred to in the UNINSURED MOTORISTS COVERAGE endorsement under OUR LIMIT OF INSURANCE is as scheduled below.... FL 20,000." At trial, Frank Favuzza, for the insured, testified that he selected $20,000 in UM coverage for the policy at issue.
Liberty Mutual's agent, Ralph Barnes, confirmed that on January 22, 1992, Favuzza signed a rejection of uninsured motorist coverage which limited his liability to $20,000. Barnes testified that although the rejection form and the policy issued in 1992 contained different policy numbers, the rejection form did apply to the 1992 policy. Barnes explained that the number "XXX-XXXXXX" was the core number of the insurance policy and that the prefix "AS7" was a company designation which would allow for a more favorable rate. In the suffix "012," the "2" indicated 1992, the year the policy was written, and the "01" indicated the first policy of the multiple policies which were written for the insured. As to the difference in the suffix "012" and "102," the issued policy's declaration page clearly states that the policy is a rewrite of AS2-151-210841-012, which is the policy number listed on the UM rejection form. Barnes also confirmed that the insured paid a premium consistent with $20,000 coverage.
The Fourth District Court of Appeal addressed a similar issue in Orion Insurance Company v. Cox, 681 So. 2d 760 (Fla. 4th DCA 1996). In Orion, the court concluded that an insured was entitled to the statutory presumption even though the rejection form was issued by a different insurer than the actual insurance policy. See id. at 762. That court reasoned that the intent of the insured to reject UM coverage was evidenced by her signature on the form. See id. at 761. The court also explained that because the insured paid a premium consistent with the lower UM coverage, any decision to hold the insurer liable for a greater amount would be unjustly enriching the insured. See id. at 762.
This case is similar to Orion in that the discrepancy on the rejection form did not change the insured's intent to reduce UM coverage in 1992. Taken together with the evidence that the account number on the insurance policy was a rewrite of that on the rejection form, it is clear as a matter of law that Liberty Mutual was entitled to the statutory presumption in this case. Because the Ledfords did not challenge this presumption by establishing fraud, forgery, or trickery, we find that the trial court should have granted Liberty Mutual's motion for a directed verdict. See Johnson v. Stanley White Ins., 684 So. 2d 248, 250 (Fla. 2d DCA 1996) (statutory presumption can be refuted by a showing of fraud, forgery, or trickery). Accordingly, we reverse and remand to the trial court with instructions that a declaratory judgment be entered in favor of Liberty Mutual.
Reversed.
FULMER and SALCINES, JJ., Concur.
NOTES
[1] In fact, the Ledfords have conceded that if the policy numbers had matched, Liberty Mutual would be entitled to the statutory presumption: "If Liberty Mutualand we keep coming back to thisif Liberty Mutual had a signed rejection form AS7, which matches their policy AS7 ... (t)hey would be entitled to a presumptive conclusion." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599255/ | 729 So. 2d 460 (1999)
Richard L. BLUMBERG, Appellant,
v.
USAA CASUALTY INSURANCE COMPANY, Federal Insurance Company, and The Bruner Insurance Agency, Appellees.
No. 98-1549.
District Court of Appeal of Florida, Fourth District.
March 17, 1999.
Rehearing Denied April 29, 1999.
Eric Lee of Atlas, Pearlman, Trop & Borkson, P.A., Fort Lauderdale, for appellant.
Hinda Klein of Conroy, Simberg & Ganon, P.A., Hollywood, for Appellee-The Bruner Insurance Agency.
WARNER, J.
This is an appeal from a summary judgment in favor of appellee Bruner, an insurance agent, in appellant Blumberg's suit against him for negligent failure to procure coverage. The trial court determined that the statute of limitations ran from the day that Blumberg filed a previous suit against his insurance company for denying coverage for his loss and not from the date when the trial court granted a directed verdict to the company. Under the facts of this case, we affirm the trial court's ruling.
Blumberg's residence was insured for a number of years through St. Paul Insurance Company ("St. Paul"). In December 1989, he bought a new home and contacted Bruner, his insurance agent, to request that St. Paul insure the new property. St. Paul, however, would not insure beach front property. Nevertheless, St. Paul continued to insure the old residence, which Blumberg rented out. Bruner reduced the insurance coverage at the old property to reflect the transfer of Blumberg's possessions to the new home and the premiums were accordingly reduced.
Blumberg had an interest in a sports card store, which proved to be unsuccessful. The store was closed in November 1991, and the inventory of cards, allegedly worth over $100,000, was turned over to Blumberg. He stored the cards in his old residence, which was still insured by St. Paul. As soon as the cards were brought to the old home, Blumberg called Bruner to verify that he had insurance coverage for the cards at that home. He also contacted the insurer of his new home who advised him that he could obtain coverage under his new policy for the cards if not covered under his existing policy. However, Bruner contacted Blumberg on November 9, 1991, and informed him that he had spoken to St. Paul and confirmed that the policy provided the necessary coverage.
On the same day that Bruner called Blumberg to confirm coverage, the old home was broken into and all of the cards were stolen. Blumberg made a claim with St. Paul, but coverage was denied. In the end of 1992, Blumberg filed suit for breach of contract and for promissory estoppel. In the complaint, Blumberg alleged that Bruner was the agent of St. Paul and, as an agent had represented to him that coverage was available under the policy. In the alternative, Blumberg alleged that, acting in reliance on St. Paul's representation of coverage, Bruner failed to secure for him other insurance on the cards. The case went to trial in August of 1996 and resulted in a directed verdict in favor of St. Paul on the breach of contract *461 count because the trial court found that the policy did not cover the loss of the cards. The promissory estoppel count went to the jury who found in favor of Blumberg but awarded only $25,000 in damages. Before judgment was entered, Blumberg dismissed his claim with prejudice.
Blumberg then filed suit against Bruner, now alleging that Bruner was his agent for the procurement of insurance coverage, and Bruner negligently failed to procure insurance to cover the loss of the sports cards. Blumberg alleged that he believed that there was coverage until the trial court ruled adversely to him in the prior suit despite his alternative position in the previous complaint that Bruner did not obtain the requisite additional insurance on the cards. Therefore, he alleged that he was not damaged by Bruner's negligence until August of 1996.
Bruner answered the complaint and raised the statute of limitations, contending that the statute began to run when St. Paul denied coverage, or at least when it denied coverage in its answer to Blumberg's suit. On Bruner's motion for summary judgment, the trial court agreed and granted the motion. From this order, Blumberg appeals.
Blumberg relies on Peat, Marwick, Mitchell & Co. v. Lane, 565 So. 2d 1323 (Fla.1990), in which the supreme court held that in a professional malpractice case, parties who had hired Peat Marwick as their accountants to provide tax advice did not suffer redressable harm until the tax court actually entered a judgment against them rather than with receipt of the IRS deficiency notice. Until the underlying legal proceeding had been completed, both Peat Marwick and its clients thought that the accounting advice was correct. The court found that to accept the position that the cause of action against the accountants accrued at the time the IRS first notified the clients of a deficiency would mean that the clients:
would have had to have filed their accounting malpractice action during the same time that they were challenging the IRS's deficiency notice in their tax court appeal. Such a course would have placed them in the wholly untenable position of having to take directly contrary positions in these two actions. In the tax court, the Lanes would be asserting that the deduction Peat Marwick advised them to take was proper, while they would simultaneously argue in a circuit court malpractice action that the deduction was unlawful and that Peat Marwick's advice was malpractice.
Id. at 1326.
The court distinguished its facts from Sawyer v. Earle, 541 So. 2d 1232 (Fla. 2d DCA 1989), where Sawyer hired Earle, a lawyer, to represent him in a bar disciplinary proceeding in which a referee recommended an 18 month suspension. Sawyer discharged Earle and replaced him with other counsel. Sawyer was subsequently disciplined in accordance with the referee's recommendations. More than two years after Earle's discharge, but within two years from the final disciplinary action, Sawyer filed a malpractice action against Earle. The second district affirmed the trial court's ruling that the action was barred by the statute of limitations. The second district stated that the cause of action had accrued when Sawyer discharged Earle because, at that point, Sawyer believed his representation had not been proper. By contrast, in Peat, Marwick, the clients believed that the accounting advice was correct and proceeded on that advice to challenge the deficiency notice from the IRS.
We find that the instant case is more similar to Sawyer than to Peat, Marwick. In the instant case, Blumberg alleged in his complaint against St. Paul that Bruner had advised him of coverage when there was none and that Bruner had failed to obtain other coverage. While Blumberg alleged that Bruner was acting as agent of St. Paul, this makes no difference in our analysis. Blumberg alleged that Bruner failed to notify him that coverage for the cards was excluded from the policy. Based on these allegations, we fail to see how Blumberg can contend that he continued to believe Bruner's advice that there was coverage until the trial court entered the directed verdict.
We dealt with an analogous circumstance in Russell v. Frank H. Furman, Inc., 629 So. 2d 297 (Fla. 4th DCA 1993). In Russell, an insurance company issued two insurance *462 policies covering a vehicle involved in an accident in which appellant was injured and her husband was killed. Unfortunately, there was a gap in coverage of $500,000 between the primary policy and the umbrella policy, which resulted in the appellant's suit against the insurance company. That litigation resulted in an ultimate ruling by this court determining that the gap in coverage existed. After this court's decision, appellant filed suit against the insurance agent for negligently creating a gap in the insurance coverage. The trial court granted the agent's motion for summary judgment on the basis that the four year statute of limitations had run. On appeal, this court affirmed, distinguishing Peat, Marwick and asserting:
[f]irst, appellants in this case had reason to know that the agent had acted negligently long before the final disposition of the case by this court in 1988. Unlike in Peat, Marwick, the court's ruling here did not make the injury apparent to the appellants for the first time, but rather confirmed what the appellants had reason to know previouslythat there was a gap in the coverage.
Second, in Peat, Marwick the plaintiffs were the defendant's clients, and were being advised by defendant on how to challenge an IRS determination. The clients took the defendant's advice and challenged the IRS determination in the tax court, unsuccessfully. It was not until that determination by the tax court that it became apparent that the accountants were negligent. Here, the appellee insurance agent was not representing the insureds and advising them regarding this very dispute. To us, this is a distinction with a substantial difference.
Id. at 298-99 (emphasis supplied).
Our court determined that the appellants could have alternatively pled that the gap existed and was the negligence of the insurance agent when they learned of its existence. See id. at 298. Similarly, in the instant case, Blumberg alleged in the first count of his complaint against St. Paul that coverage existed and that St. Paul had breached its contract by failing to provide coverage. The second count alleged that Bruner represented that coverage existed, when it did not, and that he failed to secure additional insurance as promised if the existing insurance failed to cover the cards. Thus, Blumberg simply alleged alternative theories of recovery, but failed to join Bruner as a named defendant in the suit.
Blumberg also points to the affidavit of Bruner as proof that he reasonably believed that he had coverage until the trial court ruled against him. However, the affidavit signed by Bruner states only that prior to November 9, 1991, Bruner believed the cards were covered under the policy. The inference that can be made from the affidavit is that after St. Paul denied Blumberg's claim, Bruner no longer thought the cards were covered, and therefore Blumberg could not reasonably believe it either.
We conclude that the statute of limitations began to run when Blumberg filed its action against St. Paul. At that point, Blumberg knew that coverage had been denied, and there was significant reason to believe that the policy did not cover the cards, which is why he alleged an action for promissory estoppel. He could have brought a claim against Bruner for his damages in the same suit. However, he failed to do so. By the time he actually filed the complaint against Bruner, the statute of limitations had run, and the trial court correctly entered judgment in Bruner's favor.
Because of our affirmance of the trial court on the statute of limitations, we do not need to address the remaining point on appeal.
Affirmed.
TAYLOR, J., and SCHACK, LARRY, Associate Judge, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2859875/ | CV6-282
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-96-00282-CV
Lone Star Gas Company, A Division of Enserch Corporation, Appellant
v.
Railroad Commission of Texas, Carole Keeton Rylander, Barry Williamson, Charles R.
Mathews, City of Dallas, and Dallas Independent School District, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
NO. 96-04353, HONORABLE JOSEPH H. HART, JUDGE PRESIDING
PER CURIAM
This is an interlocutory appeal from the trial-court order denying a temporary injunction to
prevent the Railroad Commission of Texas from proceeding with its Gas Utilities Docket No. 8623. By
its "Unopposed Motion to Dismiss as Moot," appellant has informed this Court that the parties have now
settled their dispute. The Railroad Commission has dismissed Docket 8623, the subject of the request for
temporary and permanent injunction and declaratory relief. Accordingly, the cause is moot. When a cause
becomes moot on appeal, the appellate court must set aside all orders relating to the temporary injunction
and dismiss the cause. Isuani v. Manske-Sheffield Radiology Group, P.A., 802 S.W.2d 235, 236 (Tex.
1991); Christie v. Argonaut Ins. Co., 530 S.W.2d 334, 336 (Tex. Civ. App.--Austin 1975, no writ).
Appellant has moved to dismiss the appeal and cause as moot. We grant appellant's
motion. We dismiss the appeal, our cause number 03-96-00282, and the underlying cause, trial court
cause number 96-04353.
Before Justices Powers, Jones and Kidd
Appeal and Cause Dismissed as Moot on Appellant's Unopposed Motion
Filed: November 20, 1996
Do Not Publish | 01-03-2023 | 09-05-2015 |
https://www.courtlistener.com/api/rest/v3/opinions/1599017/ | 3 So.3d 697 (2009)
STATE of Louisiana, Appellee
v.
Robert Lee JOHNSON, Appellant.
No. 43,935-KA.
Court of Appeal of Louisiana, Second Circuit.
February 25, 2009.
*699 Peggy J. Sullivan, Louisiana Appellate Project, Monroe, for Appellant.
Walter E. May, Jr., District Attorney, Hubert Russell Davis, Kenneth Patrick Haines, Tammy Lenn Gantt Jump, Assistant District Attorneys, for Appellee.
Before CARAWAY, MOORE and LOLLEY, JJ.
LOLLEY, J.
This criminal appeal arises from the Second Judicial District Court, Parish of Bienville, State of Louisiana. Robert Lee Johnson was convicted by a jury of two counts of second degree murder of his parents. La. R.S. 14:30.1. For each count he was sentenced to the mandatory sentence of life imprisonment at hard labor without benefit of probation, parole or suspension, to be served concurrently. Johnson now appeals. For the following reasons, we affirm Johnson's convictions and sentences.
FACTS
At approximately 5:00 p.m. on March 9, 2002, Reather Mae Cato, the defendant's sister, drove toward the home of their parents, Ruby and David Johnson. She saw Johnson walking in the same direction. Cato offered to pick him up and give him a ride, but he declined and she went on without him. As Cato walked toward the porch of their house, she noticed that the front door of her parents' home was ajar. She went into the house, calling for her parents. Receiving no answer, she made her way into the house and into her parents' bedroom, where she found them both shot and dead on the floor. A shotgun lay next to their bodies.
Cato phoned 911, her husband, and some of her siblings, then went back to the porch to wait for the police. As she got to the porch, the defendant was coming up the porch steps, and as she described at trial:
And when he got on the porch, he got a chair off the porch and turned around and walked down the steps and set out there in the yard in the chair. And I said, "Come on in here in the house *700 where I am." I said "Come on in here." I said, "Don't you know Mama and Daddy are laying [sic] in here on the floor. Somebody done shot Mama and Daddy, and they in here on the floor dead." And that's when he said, "I did it."
Johnson would not tell her why he had done it. Deputy James Stewart arrived shortly thereafter, and Cato told him what Johnson had said. Deputy Stewart went over and spoke to Johnson, who again admitted to the murders. Deputy Stewart then handcuffed Johnson and left him sitting in the lawn chair in the front yard.
Johnson was arrested and originally indicted for the first degree murder of both of his parents. However, he was initially determined to be incompetent to stand trial. In the interim the charges against him were reduced to second degree murder. Johnson was subsequently found to have been restored to competency, tried before a jury, and convicted of two counts of Second Degree Murder. Afterward, Johnson was sentenced to the mandatory sentence of life imprisonment at hard labor without the benefit of probation, parole or suspension, for each count, to be served concurrently. Johnson now appeals his convictions.
DISCUSSION
On appeal, Johnson raises two assignments of error.
Sufficiency of the Evidence
Johnson argues that the evidence at trial was not sufficient to convict him of second degree murder, and he should have been found not guilty by reason of insanity. Specifically, he maintains that the evidence presented was sufficient to show that he was insane at the time of the offense. Johnson points out that all the experts called to testify diagnosed him with schizophrenia, paranoid type, although they disagreed about whether he knew right from wrong at the time of the offense. For the following reasons, we do not believe the jury's verdict was in error.
The standard of appellate review for a sufficiency of the evidence claim is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Tate, XXXX-XXXX (La.05/20/03), 851 So.2d 921, cert. denied, 541 U.S. 905, 124 S.Ct. 1604, 158 L.Ed.2d 248 (2004); State v. Murray, 36,137 (La.App. 2d Cir.08/29/02), 827 So.2d 488, writ denied, 2002-2634 (La.09/05/03), 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.02/22/06), 922 So.2d 517.
The appellate court does not assess the credibility of witnesses or reweigh evidence. State v. Smith, XXXX-XXXX (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.05/09/07), 956 So.2d 758, writ denied, XXXX-XXXX (La.12/14/07), 970 So.2d 529. Where there is conflicting testimony about factual matters, the resolution of which depends upon a determination of the credibility of the witnesses, the matter is one of the weight of the evidence, not its sufficiency. State v. Allen, 36,180 (La.App. 2d Cir.09/18/02), 828 So.2d 622, writs denied, 2002-2595 (La.03/28/03), 840 So.2d 566, 2002-2997 (La.06/27/03), 847 So.2d 1255, cert. denied, 540 U.S. 1185, 124 S.Ct. 1404, 158 L.Ed.2d 90 (2004).
*701 In Louisiana, a legal presumption exists that a defendant is sane at the time of the offense. La. R.S. 15:432. To rebut the presumption of sanity and avoid criminal responsibility, the defendant has the burden of proving the affirmative defense of insanity by a preponderance of the evidence. La. C. Cr. P. art. 652; State v. Silman, XXXX-XXXX (La.11/27/95), 663 So.2d 27, 32. Criminal responsibility is not negated by the mere existence of a mental disease or defect. To be exempted of criminal responsibility, the defendant must show he suffered a mental disease or defect that prevented him from distinguishing between right and wrong with reference to the conduct in question. La. R.S. 14:14. The determination of sanity is a factual matter. State v. Sepulvado, 26,948 (La.App. 2d Cir.05/10/95), 655 So.2d 623, writ denied, XXXX-XXXX (La. 11/13/95), 662 So.2d 465. All evidence, including expert and lay testimony, besides the defendant's conduct and actions, should be reserved for the fact finder to establish whether the defendant has proven by a preponderance of the evidence that he was insane at the time of the offense. Lay testimony concerning the defendant's actions, both before and after the crime, may give the fact finder a rational basis for rejecting unanimous medical opinion that the defendant was legally insane at the time of the offense. State v. Peters, XXXX-XXXX (La.10/17/94), 643 So.2d 1222; State v. Claibon, 395 So.2d 770 (La.1981).
Expert testimony is relevant to the issue of whether a defendant is insane, but even where experts opine that the defendant is insane the issue is for the jury to decide. State v. Horne, 28,327 (La.App. 2d Cir.08/21/96), 679 So.2d 953, writ denied, 1996-2345 (La.02/21/97), 688 So.2d 521.
When a defendant who affirmatively offered the defense of insanity claims that the record evidence does not support a finding of guilty beyond a reasonable doubt, the standard for review by the appellate court is whether or not any rational fact finder, viewing the evidence in the light most favorable to the prosecution, could conclude that the defendant had not proved by a preponderance of the evidence that he was insane at the time of the offense. State v. Claibon, supra. Here, we conclude that the jury was clearly within its province in determining that Johnson failed to prove by a preponderance of the evidence that he was insane at the time of the murders.
The jury heard the testimony of several lay witnesses who had seen Johnson on the day of the murders. Fannie Bailey Jenkins and Charlie Kennon both worked at the Fast Pak convenience store and witnessed Johnson's strange behavior inside and outside the store that day. Johnson's behavior ranged from dancing when no music was playing, to talking to inanimate objects, to walking very quickly back and forth in front of the store. Kennon also testified that Johnson tried to buy shotgun shells that afternoon and when he was told that all the store carried was BB pellets, Johnson said that they would not work for what he needed to do.
Deputy Randy Price, one of the crime scene investigators, testified regarding his interview of Johnson at the sheriff's office soon after the murders. According to Dep. Price, Johnson told him he committed the murders because "he was tired of it. He had been harassed by his family, that he was told that he was going to be locked back up. . . ." Deputy Alonza Alford was also present during the interview with Johnson. She recalls Johnson's explanation that his parents were "harassing me all the time. They stay on my case," and that he "told my old man I was going to take him out the next time they try [sic] to lock me up." He also told Dep. Alford *702 that he told his parents "I was going to blow them away, and I did it. I have been telling them that I was going to do it."
Four of Johnson's siblings also testified as to his varied behavior when he was on his medication and when he was off it. Each testified that Johnson "was a different person" when he was not taking his medication. One testified that there was no reasoning with Johnson when he was not on his medication and they all said that he would just constantly walk and talk to himself and point at things when he was not taking his medication.
The state and defense also presented the testimony of five experts who had examined Johnson at various times in the approximately four years between the commission of the crime and the date of trial. George Seiden, M.D., an expert in psychiatry and forensic psychiatry, was called to testify on behalf of the state with regard to Johnson's sanity at the time of commission of the offense, and he unequivocally opined that although Johnson was insane, he could distinguish between right and wrong. Dr. Seiden examined the defendant on March 11, 2003, and August 9, 2005, pursuant to his appointment to a sanity commission, to evaluate Johnson's competence to stand trial. At his first evaluation of Johnson, Dr. Seiden found him to be competent to stand trial. He further found that, ". . . in this case, Mr. Johnson was psychotic. He suffers from a psychotic illness of schizophrenia, and he was psychotic at the time. But he knew what he was doing, and he knew that it was wrong." After his second evaluation, he again found Johnson competent to stand trial and capable of distinguishing right from wrong at the time of the crime. When asked if the defendant's failure to take his medication before the incident could have impacted his ability to tell right from wrong, Dr. Seiden testified, "Well, it could, but in this case, there's no evidence that it did."
Webb Sentell, Ph.D., was called by the defense to testify as to Johnson's state of mind at the time of the murders. Dr. Sentell was accepted as an expert in clinical and neuropsychology. He interviewed the defendant on April 17, 2003, and found Johnson competent to stand trial and "opined at that time, that in my opinion, he was not guilty by reason or [sic] insanity at the time of the crime." The state inquired of Dr. Sentell whether the fact that a person is delusional would prevent him from knowing the difference between right and wrong. Sentell responded, "No, but in my opinion, delusional thinking is . . . is one of the most central criteria for a [not guilty by reason of insanity] issue."
Mark Vigen, Ph.D., was then called to testify as an expert in clinical psychology. Dr. Vigen determined that Johnson was competent to stand trial and that he initially thought that Johnson knew right from wrong at the time of the murders. However, at trial Dr. Vigen stated that he had changed his mind about his original conclusions: "Yes, I have reconsidered it, and I think at this point I doubt that he knew right from wrong at the time when he killed his parents." Nonetheless, Dr. Vigen was not entirely certain about this conclusion, either: "I'm not absolutely sure. I'm if I were going to tilt a scale I'm coming down on the side of, uh, he did not know right from wrong. So I guess, in your terminology more probable than not. I would say it's more probable than not he didn't know. That would be my thought."
Johnson also called Paul D. Ware, M.D., who was accepted as an expert in forensic and general psychiatry, to testify as to his conclusions after examining Johnson on April 30, 2003. Dr. Ware concluded that Johnson:
*703 appeared to be acutely psychotic and hallucinating, and his perception of the situation was impaired, and his behavior was significantly affected by his serious mental illness and the command hallucination to shoot or kill his father and then her [sic] mother. . . . I again want to review the arrest report and other available information before reaching a final conclusion in regard to his awareness of the wrongness behavior at the time.
Dr. Ware then stated that after listening to the testimony of the other doctors who had examined Johnson as well as the testimony of Johnson's family members, he believed Johnson was incapable of distinguishing right from wrong at the time he committed the crimes.
Richard Williams, M.D., also testified for the defense as an expert in psychiatry. He examined Johnson on June 15, 2005. He determined that Johnson knew right from wrong at the time of the commission of the offense. He further stated, "I have no question that Mr. Johnson was psychotic. I have no question that he was having hallucinations or that he had delusions. I don't question that at all. What I believe is that he was not insane to the point that he could not distinguish right from wrong with reference to the conduct in question." The state reserved all questioning of this witness for rebuttal.
On rebuttal, the state recalled Dr. Williams, who was subsequently accepted as an expert in forensic psychiatry as well. Dr. Williams testified:
I concluded with reasonable medical certainty that, at the time of the alleged offense, Mr. Johnson, although suffering from mental disease, this disease did not render him incapable of distinguishing right from wrong with reference to the conduct in question. And by that, what I mean is he knew the difference in right and wrong. He knew the difference.
* * *
I . . . base that on . . . several things. Uh, Mr. Johnson said that he shot his parents because he did not want to go back to the mental hospital. That's consistent with what's he [sic] said all of his life. "I'm tired of being in a mental hospital. If you're going to send me to a mental hospital, I'm not going this time." He said that he knew he would go to jail. That's a caused event. He knew that if he did this behavior, this would occur. When asked if he would do the same thing now, he said that he would just leave. He knew that ends up in a . . . bad place for him. Uh, he states, "This time I just got mad." The psychological testing clearly indicates he's impulsive and that he has anger outbursts. I think he was impulsive and got angry, and he acted this time. It was not because he feared for his life. You know, when someone is really delusional, aggressive psychotic, they think. . . that somebody's shooting at them, trying to kill them, and out of self-defense, they end up acting on that. I've seen people like that. You know, that's a different deal. He feared for his life not at all. He didn't want to be locked up again in a psychiatric hospital. "They have done this to me. They've had me locked up for twenty years" quote [sic]. When he saw his sister driving to the house and saw him, he knew that he would go to jail. And his siblings always sided with his parents. He knew that she was going to know that he had done it. He . . . knew what would happen.
Dr. Williams then explained the errors he believed the other doctors made in coming to the opposite conclusion. Regarding *704 Dr. Sentell's opinion, Dr. Williams noted that just because Johnson suffered from delusions and command hallucinations did not mean he could not tell the difference between right and wrong. He pointed out that the defendant had fought those urges for many years, which suggested to him that the defendant was aware that to follow them would be wrong. With regard to Dr. Vigen, Dr. Williams also thought that the issue is not a matter of more evidence placed on one side of a scale than on the other, rather, "Well, you know, you either say it or you don't. And if . . . it's difficult to say it, then you ask for other information at that time."
Considering all of the evidence presented, the jury concluded that Johnson was sane at the time of the commission of the offense and found him guilty of both counts of second degree murder. The question for this court is whether, viewing all of that evidence in the light most favorable to the prosecution, the jury could have determined that Johnson failed to prove that he was insane by a preponderance of the evidence. Whereas the standard of proof for him to prove insanity is less than that required of the state to prove guilt, it is reasonable, viewing the evidence in the light most favorable to the prosecution, to determine that Johnson failed to meet his burden.
The decision about which witness to believe belongs to the jury and should not be overturned by this court unless an abuse of discretion can be shown. Here, the jury could have believed one or two of the doctors over the others and found that the defendant failed to prove his insanity at the time of commission of the offense. Specifically, the testimony of Dr. Seiden was very strong for the state, and it was not well challenged by the defense. The opposing opinions of Dr. Vigen and Dr. Ware appear, even on the cold record, hesitant and unsure. But finally, the rebuttal testimony of Dr. Williams was extremely clear and direct as to his belief that Johnson, even suffering from chronic paranoid schizophrenia, had the ability to distinguish right from wrong. Dr. William's opinion cast great doubt on the reliability of some of the findings and opinions of the defense experts. The jury gave more credence to the opinions of Dr. Seiden and Dr. Williams, and such a determination was clearly within the jury's discretion and reasonable in this case. Furthermore, in addition to the expert testimony the jury also considered the lay testimony of Deputies Price and Alford. They recounted that Johnson intended the consequences of his action-action he took because he did not want his parents to hospitalize him again. Weighing that testimony with the expert opinion testimony of Drs. Seiden and Williams, the jury's verdict appears entirely reasonable. So considering, there is no basis for this court to substitute its opinion for that of the jury's ultimate determination in this matter.
Jury Selection
Johnson also argues that his challenge for cause as to prospective juror, Melton Picket, was denied in error by the trial court. Specifically he argues that prospective juror Picket should have been released on a challenge for cause, because Picket's deeply held beliefs were at odds with the law to be presented in the case. Johnson points to Picket's statements that "murder is murder," and "I believe that the Bible says if you kill somebody, you die. That's what I believe. Is that plain enough?" Johnson maintains that the requirements stated in State v. Robertson, 1992-2660 (La.01/14/94), 630 So.2d 1278, 1281, (i.e., the erroneous denial of a challenge for cause and the use of all his peremptory challenges) were met and so *705 his conviction should be reversed. We disagree.
Louisiana C. Cr. P. art. 797 provides the grounds for a challenge for cause of a potential juror:
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;
* * *
(4) The juror will not accept the law as given to him by the court. . . .
A defendant may raise a claim of wrongful denial of a challenge for cause on appeal if he has used all of his peremptory challenges and the trial court's error in denying a challenge for cause "that results in depriving him of one of his peremptory challenges constitutes a substantial violation of his constitutional and statutory rights, requiring reversal of the conviction and sentence." State v. Juniors, 2003-2425 (La.06/29/05), 915 So.2d 291.
A trial court is vested with broad discretion in ruling on challenges for cause, and a trial court's ruling will be reversed only when a review of the entire voir dire reveals an abuse of discretion. State v. Carmouche, XXXX-XXXX (La.05/14/02), 872 So.2d 1020. Although the trial judge has broad discretion, a challenge for cause should nevertheless be granted, even when a prospective juror declares his ability to remain impartial, if the juror's responses as a whole reveal facts from which bias, prejudice or inability to render judgment according to law may be reasonably implied. Id.
Here, the following two exchanges took place between the trial court, the state, defense counsel and Pickett (the prospective juror at issue) during and after the challenge for cause was raised:
THE COURT: Mr. Pickett?
COUNSEL FOR THE DEFENDANT: Yes. Mr. Pickett is the one that had a issue with, uh, . . . that murder is murder and second degree is not strong enough. Uh, and so I don't believe that he can fairly apply any testimony or . . .
THE COURT: . . . Any objection to that, Mr. Davis?
COUNSEL FOR THE STATE: Yes, sir, I object. Mr. Pickett says that he could apply whatever the law of the land was. Whatever you instruct him that the law was that he could apply that. I think that was a very honest answer and I don't think that it's sufficient for a challenge for cause.
THE COURT: Do you want to rehabilitate him or not rehabilitate him or just that's your answer?
COUNSEL FOR THE STATE: That's my answer. . . . (inaudible). . . .
THE COURT: All right. I'll come back to that one.
Later, the following exchange took place:
THE COURT: Mr. Pickett, Mr. Davis has some questions to ask you.
COUNSEL FOR THE STATE: Mr. Pickett, you stated earlier that you thought murder was murder. But you said that you could apply whatever the law of the land was, is that correct?
MR. PICKETT: Yes, sir, that's true.
COUNSEL FOR THE STATE: So if Judge Fallin instructed you what the law was to second degree murder, you could apply that law in this case?
*706 MR. PICKETT: Yes, sir, I could.
COUNSEL FOR THE STATE: And I believe you said that based on what the Bible said, the Bible says we're suppose [sic] to apply the law of the land, is that correct?
MR. PICKETT: That is right.
COUNSEL FOR THE STATE: Okay. And if . . . Judge Fallin told you what the law of insanity was. . . . If he told us what the law of insanity, what that was, you could apply that law also, is that correct?
MR. PICKETT: Yes, sir, I could.
COUNSEL FOR THE STATE: Okay. I have no further questions, Your Honor.
COUNSEL FOR THE DEFENDANT: May I?
THE COURT: Yes, sir.
* * *
COUNSEL FOR THE DEFENDANT:. . . Mr. Pickett, you understand that when you first expressed them, I mean, you were rather adamant about your statements on murder is murder and second degree is not strong enough. Would you agree with that?
MR. PICKETT: Yes, sir.
COUNSEL FOR THE DEFENDANT: And would I be wrong in stating that that emphatic firm statement was a fair indication of how deeply held those beliefs were?
MR. PICKETT: Yes, sir.
COUNSEL FOR THE DEFENDANT: Now you understand that in a case where the crime charged is murder that there will often be subtle differences in the law on what constitutes first degree, second degree, manslaughter, negligent homicide and that these differences may be very narrow. Are you willing to listen and apply that even though the issue involved is the deaths of two people?
MR. PICKETT: Yes, sir, I could do that.
COUNSEL FOR THE DEFENDANT: Do you believe that you could in fact take evidence in the case where two people were killed and say that the facts of that case warranted a verdict of manslaughter?
MR. PICKETT: Yes, sir, if that's what the law says. Yes, sir, I could.
COUNSEL FOR THE DEFENDANT: Even though the penalty for that is not life in prison nor is it death, you could accept that?
MR. PICKETT: Yes, sir.
COUNSEL FOR THE DEFENDANT: And I'll well, that's all I have, Judge.
THE COURT: Mr. Pickett, do you think you can be a fair and impartial juror?
MR. PICKETT: I do.
THE COURT: Do you think that, or if I tell you what the law is by the fact that I'm telling you what it is at the end of the, if you do become a juror and I give you the instructions on the law, even though you personally may feel differently, my instruction to you would be that you have to follow what I say the law as to the facts as you find that, can you do that?
MR. PICKETT: Yes, sir. There's a lot of your laws I don't like but still this is the greatest land in the world and we do have the best judicial system there is, and even though I don't like it, I will follow whatever the law is.
THE COURT: All right. Challenge for cause is denied.
Here, Pickett initially stated during voir dire that "Murder is murder. I mean no matter how little bit of a sentence they get or whatever, whoever they killed is still dead." He was subsequently questioned and stated that he could "abide" by "the law of the land" and apply it as given to *707 him by the court, even as the law specifically applied to an insanity defense. Although Pickett initially expressed his opinion that there were no different grades of murder, he ultimately stated that he could accept and apply the law. Refusal to sustain a challenge for cause of a juror who, though oscillating in his responses on voir dire concerning burden of proof, but firmly agreed to apply the law as instructed despite his personal beliefs is not an abuse of discretion. State v. Pettaway, 450 So.2d 1345 (La.App. 2d Cir. 1984), writ denied, 456 So.2d 171 (La.1984). Viewing the voir dire examination of Pickett as a whole, we conclude that although this prospective juror initially expressed reservations, his subsequent answers after further examination and instruction convinced the trial court that he would properly apply the law as instructed him on that issue. Therefore, it appears that this juror was sufficiently rehabilitated, and it was within the discretion of the trial court to deny Johnson's challenge for cause. We conclude that this assignment is without merit.
CONCLUSION
For the foregoing reasons, the convictions and sentences of Robert Lee Johnson are affirmed.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599099/ | 729 So.2d 1112 (1999)
Virginia Gail EDWARDS, et al., PlaintiffsAppellees,
v.
Edward M. DAUGHERTY, et al., DefendantsAppellants.
No. 97-1542.
Court of Appeal of Louisiana, Third Circuit.
March 10, 1999.
Rehearing Denied April 14, 1999.
*1116 Clayton Arthur Larsh Davis, Reuvan Nathan Rougeau, Samuel B. Gabb, Lake Charles, for Virginia Gail Edwards etc.
Michael Steven Beverung, Lake Charles, Robert E. Morgan, David Wooley, for Wayne McElveen Sheriff of Cacasieu Parish.
David Ross Frohn, Lake Charles, Harry Alston Johnson III, Elizabeth Broooks Hollins, Lake Charles, for Sphere Drake Ins. Co.
BEFORE: YELVERTON, COOKS and SULLIVAN, Judges.
COOKS, Judge.
On December 22, 1993, Sissy Woodard was traveling south on Davis Road just north of Westlake, Louisiana. When Sissy stopped in the roadway, intending to turn left into her private driveway, another vehicle driven by Gary Bailey collided with the rear of her vehicle. Both vehicles were "pulled over" to the right-hand side of Davis Road, remaining partially on the roadway.
Donald Handy, a nearby resident and a former police officer, approached the scene of the accident and attempted to aid the drivers. He checked for injuries and instructed the drivers not to move their vehicles. Handy also brought with him two flashing strobe lights and began directing traffic through the accident scene. Jaymie Edwards, also a nearby resident, offered to assist Handy in directing traffic. With Edwards positioned at the north end of the accident scene and Handy at the south end, the two began to allow alternating traffic to flow through the scene.
While directing traffic at the north end of the accident scene, Jaymie Edwards stopped a station wagon driven by Florence Baldwin. Shortly thereafter, an automobile driven by Edward M. Daugherty rear-ended Baldwin's vehicle. The force of the collision propelled Baldwin's vehicle into Edwards, who was standing with his back facing Baldwin's car. Edwards sustained severe physical injuries. Daugherty's blood alcohol level was 0.25 grams percent, significantly above the legal limit of 0.10 grams percent.
Like a tale from Ripley's "Believe It or Not," the ambulance summoned to attend Edwards was struck by a vehicle driven by David Blanchard while en route to the hospital. The trial court later found, however, "there was no evidence to suggest that this accident was serious or in any way aggravated Jamie's [sic] already serious injuries."
Suit was filed on behalf of Jaymie Edwards by his co-curatrixes and on behalf of his three children (for loss of consortium) by their natural tutrix. Made defendants were the following: (1) Edward M. Daugherty, the intoxicated driver, and his insurer; (2) the driver of the vehicle (Florence Baldwin) that was rear-ended by Daugherty and her insurer; (3) the driver (Gary Bailey) who rearended the left-turning motorist in the original accident and his insurer; (4) the parties *1117 involved in the ambulance accident and their insurers; (5) Sheriff Wayne McElveen of the Calcasieu Parish Sheriff's Department (whose deputies allegedly passed through the accident scene without rendering assistance); (6) the City of Westlake and one of its officers, Henry Simms (who allegedly passed the accident scene), and its insurer.
Numerous incidental demands were filed among the defendants, including a third-party demand against the City of Westlake and Donald Handy. Prior to trial, all parties were dismissed either via summary judgment or settlement except for Sheriff McElveen and his insurance company, Sphere Drake, and Edward M. Daugherty. The Sheriff's third-party demand against Donald Handy was dismissed after trial commenced, but prior to judgment.
ACTION OF THE TRIAL COURT
There were numerous pre-trial procedural disputes. Of particular significance were the requested recusal of the trial judge and the request by the Sheriff and Sphere Drake for a jury trial. The trial judge denied the motion for jury trial on the eve of the scheduled trial. Writs were filed by the Sheriff and Sphere Drake with this court. We denied both the Sheriff's and Sphere Drake's applications, noting no appropriate waiver of the right to non-jury trial was submitted by the Sheriff. Sphere Drake then sought supervisory review of our ruling and the Louisiana Supreme Court unanimously found it was entitled to a trial by jury. The Sheriff did not seek supervisory review; instead, the Sheriff filed a second motion for a jury trial and attached a resolution purportedly waiving his right to a non-jury trial in this case. The motion was argued and denied by the trial judge. Writs filed by the Sheriff with this court and the Supreme Court also were denied.
The Sheriff then moved to recuse the trial judge, specifically referencing certain public statements he allegedly uttered regarding the Sheriff's Office and criminal charges against his son. The motion was referred to Judge William McLeod, and after a hearing, it was granted. Plaintiffs then filed a writ application with this court on the recusal ruling. Ultimately, the writ was granted; and this court reversed the recusal judgment. The Sheriff applied to the Supreme Court for a supervisory writ on this issue. His application was denied.
When trial commenced, the issues as to all parties other than the Sheriff were tried by a jury and the issues relating to the Sheriff were tried by the judge alone. At the trial's conclusion, the jury returned a verdict finding Edward Daugherty (the intoxicated driver) 67.5% at fault and the Sheriff 32.5% at fault. No fault was assigned to Jaymie Edwards. The jury awarded Jaymie Edwards $185,000 in past due medical expenses, $1,250,000 in future medical expenses, $84,100 in past income loss, and $346,160 in future income loss. Each of the Edwards children were awarded $25,000 for loss of consortium. The jury did not award Jaymie Edwards any sum for past and future pain and suffering, mental anguish, or loss of enjoyment of life. The trial judge later entered a "judgment on the jury verdict" reflecting the jury's determinations.
For reasons assigned, the trial judge also entered a judgment resolving the issues involving the Sheriff. The trial judge assessed the Sheriff with 55% fault, and Daugherty with the remaining 45% fault in causing the accident. He awarded past medical expenses of $183,633, future medical expenses of $1,045,690, past income loss of $104,533 and future income loss of $894,312. He also awarded Jaymie Edwards $800,000 for past and future pain and suffering, mental anguish and loss of enjoyment of life. He awarded $150,000 for loss of consortium to Jennifer Edwards, and $100,000 for loss of consortium to both Janet Edwards and Jaymie Edwards, II.
Plaintiffs filed a motion for judgment notwithstanding the verdict (JNOV), in large part because of the jury's failure to make an award for pain and suffering and loss of enjoyment of life. In response to this motion, the trial judge granted the motion, "revising the jury verdict." The jury's apportionment of fault remained unchanged, but the trial judge altered the quantum awards for past medical expenses ($185,000 to $183,633), future income loss ($346,160 to $894,312) *1118 and loss of consortium ($25,000 for each of the three children to $100,000 for each child). The trial judge also awarded $800,000 for past and future pain and suffering and loss of enjoyment of life. After the grant of the JNOV the two judgments were as follows:
JUDGE JURY
I. Apportionment of Fault
Sheriff McElveen 55% 32.5%
Edward Daugherty 45% 67.5%
Jaymie Edwards 0% 0.0%
II. Damages
Jaymie Edwards
a) Pain and Suffering; Loss of $ 800,000 $ 800,000
Enjoyment of Life
b) Medical Expenses
(I) Past $ 183,633 $ 183,633
(ii) Future $1,045,690 $1,250,000
c) Income Loss
(I) Past $ 104,533 $ 84,100
(ii) Future $ 894,312 $ 894,312
Jennifer Edwards $ 150,000 $ 100,000
Janet Edwards $ 100,000 $ 100,000
Jaymie Edwards, II $ 100,000 $ 100,000
__________ __________
TOTAL DAMAGES $3,378,168 $3,512,045
The Sheriff suspensively appealed the judgments and now asserts the following assignments of error:
1. The trial court erred in failing to recuse Judge Carter, who maintained strong bias against Sheriff Wayne McElveen, the defendant/appellant herein and his deputies, from presiding in this case.
2. The trial court erred in denying Sheriff Wayne McElveen a trial by jury.
3. The trial court erred in its determination apportioning fault to Sheriff Wayne McElveen.
4. The trial court erred in not apportioning any fault to Donald Handy.
5. The trial court erred in not apportioning any fault to the City of Westlake.
6. The trial court erred in not apportioning any fault to Jaymie Edwards.
7. The trial court erred in apportioning only forty-five (45%) percent of liability to Edward M. Daugherty.
8. The trial court erred in awarding excessive damages to Jaymie Edwards, and his three minor daughters for loss of consortium.
Sphere Drake also filed an appeal and, while generally adopting the assignments of error advanced by its insured (the Sheriff), it specifically assigned the following additional errors:
1. The trial court erred in declining to include in the jury interrogatories an inquiry as to possible fault of certain non-parties as to whose involvement evidence was adduced at the trial, leading in turn to an improper allocation of fault.
2. The trial court and the jury erred in the conclusion that plaintiffs had established a cause-in-fact relationship between the alleged conduct of the sheriff's deputies and the risk that occurred.
3. The trial court and the jury erred in the conclusion that the ambit of protection spread by the duty imposed upon the sheriff's deputies properly included the risk that occurred.
4. The trial court erred in its determination and assessment of certain elements of damages awarded to plaintiffs.
Plaintiffs, in answering the Sheriff's appeal, seek an increase in the awards for future medical expenses, as well as for past and future pain and suffering, mental anguish and loss of enjoyment of life experienced by Jaymie Edwards. Responding to the appeal filed by Sphere Drake, plaintiffs seek modification of the judgments, insisting the trial court erred in failing to declare Sphere Drake's one million ($1,000,000) dollars policy limits is attachable to satisfy the awards reflected therein.
PROCEDURAL ASSIGNMENTS OF ERROR
I. Recusal of Trial Judge
The Sheriff argues Judge Carter should have been recused "because of his admitted belief that the defendant-appellant's deputies have unjustly investigated, arrested, and prosecuted his son on murder charges." This belief, the Sheriff maintains, "impaired his ability to conduct a fair and impartial proceeding."
By the time this case was actually tried it had been pending for nearly two years. On the first day of trial, after deciding several pretrial motions, Judge Carter recessed the case until the next day. For the first time, on that date, the Sheriff filed a recusal motion seeking to remove Judge Carter from the case based upon statements made by him *1119 in December, 1995 and February, 1996. Upon receipt of the Motion for Recusal, in accordance with La.Code Civ.P. art. 155, Judge Carter referred the motion to another judge for determination. Judge William McLeod heard the motion. Acknowledging no proof was presented that Judge Carter possessed any actual bias, he concluded nevertheless that a "substantial appearance of the possibility of bias" existed and recused Judge Carter. We granted plaintiffs' request for peremptory relief and reversed the judgment stating:
The grounds for recusal set out in La. C.C.P. art. 151 are the sole and exclusive grounds for recusal.... In the present case the trial court did not find that the trial judge was biased, only that there was "a substantial appearance of the possibility of bias." The trial court's ruling creates a new standard for recusal which has no basis in the jurisprudence. The possibility of a bias or conflict is an unmanageable standard. It is particularly inappropriate in the present case to allow recusation where the mover waits nine months from the alleged prejudicial statements to seek recusation. At the time the statements were made the law was clear that the sheriff's department was prohibited from having a jury trial. The Motion to Recuse filed the day before trial based on grounds which were known to the mover for nine months is no more than a means of last minute forum shopping. Since "an appearance of the possibility of bias" is not a grounds for recusal, the trial court erred in granting the defendant's Motion to Recuse. After a thorough review of the transcript, there is no evidence which would show bias or prejudice on the part of the trial judge.
Law of the case is a procedural principle which relates to the conclusive effects of appellate rulings at trial on remand. It is intended to prevent appellate courts from reconsidering prior rulings of law on subsequent appeal in the same case involving the same litigants. Sloane v. Davis, 619 So.2d 585 (La.App. 3 Cir.), writ denied, 629 So.2d 355 (La.1993); Trahan v. McManus, 96-669 (La.App. 3 Cir. 2/19/97), 689 So.2d 696. As we again noted in Guilbeaux v. Times of Acadiana, Inc., 96-360, p. 4 (La.App. 3 Cir. 3/26/97), 693 So.2d 1183, 1186, writ denied, 97-1840 (La.10/17/97), 701 So.2d 1327, "[c]ourts apply this principle to avoid indefinite relitigation of the same issue, to reach consistent results in the same litigation, and to afford a single opportunity for argument and decision of the matter at issue." See also, Barnett v. Jabusch, 94-819 (La.App. 3 Cir. 2/1/95), 649 So.2d 1158; Cardinal Fed. Sav. Bank v. Corporate Towers, 629 So.2d 462 (La.App. 3 Cir.1993), writ denied, 634 So.2d 396 (La.1994); Fuselier v. Amoco Prod. Co., 607 So.2d 1044 (La.App. 3 Cir.1992). But this principle, nonetheless, is purely discretionary in application. Sloane, 619 So.2d 585; Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 256 So.2d 105 (1971). This court has the power to review prior rulings on appeal in cases where palpable former error exists or where application would cause manifest injustice. Guilbeaux, 693 So.2d 1183; Sloane, 619 So.2d 585. Absent such showing, we have consistently applied the law of the case principle for reasons thus articulated.
The Sheriff passionately argues such circumstances exist in this case because "[his] case depend[ed] in large part upon the believability of his deputies. To hold that Judge Carter's admitted feelings of improper conduct of the Calcasieu Parish Sheriff's Office deputies did not reflect a bias or prejudice, such that a fair and impartial proceeding [could not be] had, would set a standard making it practically impossible for a judge to be recused unless he himself proclaimed that he would not be fair and voluntarily recused himself." The Sheriff urges Judge Carter's recusal was mandated by La.Code Civ.P. art. 151 B(5) which provides a judge of any court "may be recused when he is biased, or prejudiced against one of the parties to such an extent that he would be unable to conduct fair and impartial proceeding" and Canon 2 of the Code of Judicial Conduct which requires a judge to "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary," and prohibits a judge "from allowing family relationships from influencing judicial conduct or judgment."
*1120 When we first visited this question, a panel of our members reviewed the record and concluded neither the evidence as a whole, nor the trial court's finding that a "substantial appearance of the possibility of bias" existed established statutory grounds for recusing Judge Carter. In particular, we noted Article 151, again cited by the Sheriff on second "go round," enumerates the exclusive grounds for recusal and it does not list a "substantial appearance of the possibility of bias" or even a "mere appearance of impropriety" as causes for removing a judge from presiding in a given action. See Pierce v. Charity Hosp. of Louisiana, 550 So.2d 211 (La.App. 4 Cir.), writ denied, 551 So.2d 1341 (La.1989). Even read broadly, the article still requires a finding of actual bias or prejudice. The bias or prejudice must be of a substantial nature and based on more than conclusory allegations. State v. Edwards, 420 So.2d 663 (La.1982); Tamporello v. State Farm Mut. Auto. Ins. Co., 95-458 (La.App. 5 Cir. 11/15/95), 665 So.2d 503; Pierce, 550 So.2d 211.
At the motion to recuse, the Sheriff elicited testimony from two key witnesses. The first, Mr. Vincent Lupo, a reporter for the Lake Charles American Press, testified in February, 1996 he interviewed Judge Carter regarding the arrest of his son and at that time the judge commented: "My son is suffering because of my status." Admittedly paraphrasing, the reporter also related: "The judge said he accused law enforcement authorities and prosecutors of bringing charges against his son because of `who I am.'" The second witness, Donald Delouche, was a Calcasieu Parish Sheriff's Officer assigned to the Violent Crimes Task Force. He, along with Ramby Cormier, a Lake Charles City Police Officer also assigned to the same Task Force, investigated the case involving the judge's minor son who was arrested on December 20, 1995. On this date, the minor was questioned by Ramby Cormier, then working as "lead officer in the investigation." Judge Carter and Officer Delouche were present during the interview. In response to the minor's repeated denials that he was present at the scene of the crime, Officer Cormier revealed "he had witnesses that had placed him at the scene and that [there were] statements from those witnesses." At some point after this exchange, Delouche related the officers "took a break and walked outside and went into the secretary's office," accompanied by Judge Carter who "turned to Officer Cormier and said, `I know that y'all routinely lieI know that the police routinely lie to suspects in order to get them to confess; I don't think you need to be doing that with my son." But, Officer Delouche candidly admitted in response to a series of questions posed to him by opposing counsel:
Q. Mr. Delouche, I'm not a criminal lawyer; I have no experience in it. All I know is what I see on TV.
A. Yes, sir.
Q. And I know on TV that when you get a suspect in a room, sometimes you might act like you have more than you really have, to try to get the suspect wondering how much you have so that they might be a little more forthcoming. Is thatis that fair? Are there times when law enforcement will attempt to get some honest information from a suspect?
A. Yes, sir, thatthat technique is impliednot impliedthat is employed in some cases. That was not being done in this case.
Q. I understand. I'm just asking in general.
A. I understand. I understand.
Q. In general, obviously, the suspect doesn't know how much you know, and there are times when you will act like you know more than you know so that he'll admit to things, correct?
A. That's correct, sir..
We have surfed through 26 volumes of record and are unable to locate either the tape or a transcription of Judge Carter's statement at the hearing on the Motion to Recuse. As such, we are left to surmise from the accounts of counselors during the hearing that the trial judge admitted he had a particular problem with Officer Cormier, employed by the Lake Charles City Police Department; but he held "no animosity towards law enforcement as a class of people," *1121 noting "he has sat in on criminal matters and other cases ... where law enforcement testifies, and does not have any bias against their veracity."
The main thrust of the Sheriff's discontent, as expressed at the hearing, hinged on his assumption that the judge would not afford "a presumption of credibility" to his deputies if called as witnesses at trial. Neither Officer DeLouche nor Officer Cormier were expected trial witnesses in this case; and all the parties' readily conceded they knew nothing about it. The Sheriff has not cited a single instance where he voiced similar concerns regarding the judge's ability to assess the credibility of his deputies out of the many cases he had occasion to hear prior to and even since the present. Yet, the Sheriff suggests that somehow this case is special and we should, like he, assume the judge could not and did not afford him an impartial trial. In particular, he points to several pretrial and trial rulings by Judge Carter and alleges they serve as additional evidence that he was biased or prejudiced. Each of the cited rulings have been carefully examined by us, and as will become evident from our discussion below, none of them validate the Sheriff's allegations. We note, as well, the judge's comments were uttered nearly nine months before the Sheriff filed this recusal motion. He waited until the first day of trial to file the motion; and, even then he opted not to immediately advance itagreeing, instead, to allow the judge to rule on his pending motion for jury trial.
Bias and impartiality are never assumed for obvious reasons: Assumptions are not facts and appearances are seldom as they seem. Thus, the legislature has not seen fit to include the latter as Article 151 causes for the recusal of a judge. Unaided by assumption, the record simply does not show Judge Carter was biased or prejudiced against the Sheriff or any deputy he expected and did call to testify in this particular case.
The Sheriff also argues Judge Carter's recusal was required by the Code of Judicial Conduct. Though cognizant of the Supreme Court's recent disciplinary rulings interpreting the ambit of the Code of Judicial Conduct, we know the courts of this State have repeatedly held the statutory grounds for recusal mentioned in Article 151 are exclusive and not illustrative. Owens v. Jackson, 550 So.2d 359 (La.App. 3 Cir.1989); McCartney v. Columbia Heights Nursing Home, Inc., 25,710 (La.App. 2 Cir. 3/30/94), 634 So.2d 927; Pierce, 550 So.2d 211; Bergeron v. Illinois Cent. Gulf R.R. Co., 402 So.2d 184 (La.App. 1 Cir.), writ denied 404 So.2d 1260 (La.1981). Although Canon 3(C) was amended in 1996 to provide that "a judge should disqualify himself or herself in a proceeding in which the judge's impartially might reasonably be questioned," the statutory grounds for recusal in civil cases have not been amended by the Legislature. None of the disciplinary cases cited by the Sheriff discussed the authority of an intermediate appellate court to discount or nullify a judge's decision in a case because of alleged violations of the Code of Judicial Conduct which do not fall within the statutory mandates found in Article 151. Judicial discipline is a matter within the exclusive authority of the Louisiana Supreme Court, and we are unable to find any law declaring otherwise.
Finding no palpable error or manifest injustice, we must apply the law of the case principle and put this issue to rest.
II. Right To Jury Trial
The Sheriff's demand for trial by jury was twice denied below. From each denial, the Sheriff sought supervisory review by this court. Although the trial judge ruled that the Sheriff's demand was untimely and proceeded to strike the jury, we found on first review "no error in [his] granting of the motion," noting "La.R.S. 13:5105 prohibits a political subdivision from being tried by jury unless the political subdivision, by general ordinance or resolution, makes a blanket waiver against a jury trial in all suits, not merely a specific proceeding." As mentioned, the Sheriff initially failed to submit any waiver of his right to a non-jury trial. The Sheriff did not seek supervisory review of this ruling by the Louisiana Supreme Court. Instead, the Sheriff sought to cure the noted defect by filing a belated waiver of his right to a non-jury trial. The trial court, *1122 again, rejected the Sheriff's demand; this time finding the resolution was insufficient. Agreeing, this court held "there [was] no error in the trial court's denial of relator's second motion for jury trial as the resolution of the sheriff [was] not a blanket waiver of the prohibition against jury trials as required by La.R.S. 13:5105." The Sheriff sought writs with the Louisiana Supreme Court which denied his request.
The Sheriff, again, stands before this court complaining that his right to trial by jury was violated. In a nutshell, the Sheriff argues that La.R.S. 13:5105(D) does not require a "`blanket waiver' in order for a political subdivision to avail itself of its provisions," and even if it does the waiver submitted in this case "should be read in such a manner so as to constitute a `blanket waiver.'" To do otherwise, the Sheriff urges, "is inconsistent with the jurisprudence requiring indulgence in every presumption against waiver, loss or forfeiture of a litigant's fundamental right to a jury trial."
The Sheriff's argument, however, is flawed. Recently, the Louisiana Supreme Court reiterated that "the right to a jury trial in a civil case is not fundamental, i.e., is not made mandatory on the states under the Fourteenth Amendment and is not constitutionally enshrined in the 1974 Louisiana Constitution. The legislature can pass any law affecting a party's ability to obtain a jury trial provided it does not violate any constitutional provision." Kimball v. Allstate Ins. Co., 97-2885 (La. 4/14/98), 712 So.2d 46. See also, Blanchard v. City Parish of East Baton Rouge, 95-2011 (La.App. 1 Cir. 4/30/96), 674 So.2d 317, writ denied, 96-1511 (La. 9/20/96), 679 So.2d 443. Of course, once the state bestows to a party the right to trial by jury and that party complies with the statutory prerequisites to preserve the right, then any attempt to revoke it may offend "due process" principles. Revel v. Telecheck Louisiana, 581 So.2d 405 (La.App. 4 Cir.), writ denied, 588 So.2d 1116 (La.1991).
Subsection (D) of La.R.S. 13:5105 reads:
Notwithstanding the provisions of Subsection A, a political subdivision, by general ordinance or resolution, may waive the prohibition against a jury trial provided in Subsection A of this Section. Whenever the jury trial prohibition is waived by a political subdivision and a jury trial is demanded by the political subdivision or the plaintiff in a suit against the political subdivision or against an officer or employee of the political subdivision, the demand for a jury trial shall be timely filed in accordance with law ... (Emphasis added).
La.Code Civ.P. art. 1733 provides: "The pleading demanding a trial by jury shall be filed not later than ten days after either the service of the last pleading directed to any issue triable by a jury, or the granting of a motion to withdraw a demand for a trial by jury."
First, plaintiffs argue that the Sheriff's jury trial request came too late. They urge "the ten day period set forth in Article 1733(C) commenced when [International Surplus Lines Insurance Company,] the only party requesting trial by jury was dismissed from this case on October 31, 1996." Citing Navarro v. South Central Bell Telephone Co., 470 So.2d 983 (La.App. 1 Cir.1985) and City Stores Co. v. Johns-Manville Sales Corp., 395 So.2d 953 (La.App. 4 Cir.1981), they maintain the dismissal was "the equivalent of withdrawing its request, and the other non-requesting parties had 10 days from notice of the dismissal to file a jury trial request." The Sheriff's motion was not filed until the day before trial fixing, 17 days after the dismissal and well beyond November 12, 1996, which plaintiffs insist was the final date he had opportunity to preserve the right. Responding, the Sheriff argues his motion was timely because the 10 day period did not commence until the trial court granted plaintiffs' motion to strike the jury, which delay elapsed after filing of his second motion for jury trial.
Echoing our earlier rulings on this issue, plaintiffs also assert the Sheriff's resolution, waiving the right against jury trial "in the above captioned matter," was not a blanket waiver and, thus, insufficient to comply with La.R.S. 13:5105. But the Sheriff insists that "no provision in La.R.S. 13:5105(D) [requires] *1123 a `blanket waiver' for a political subdivision to avail itself of the right to jury trial; even, if such is required, the resolution's recital "in the above captioned matter" should not be read as "in the instant case." Instead, it should be read as "in the above captioned matter and all other matters."
We turn first to examine our earlier ruling for error. Although the Sheriff encourages us to accept his interpretation of R.S. 13:5105(D) as opposed to that of two separate panels of our members, he cites no jurisprudence or other authority, even by analogy, as support for the meaning he ascribes it. His argument apparently is premised on the absence of the word "blanket" as a communicative term in the provision; ipso, he concludes submission of a waiver on a "case by case" basis is permissible to comply with the provision's mandate. But reading Subsection D as the Sheriff suggests renders an essential portion of it meaningless. The provision clearly states when a political subdivision waives the right to a non-jury trial either the political entity or the plaintiff may request trial by jury. If the right was waivable on a case by case basis, plaintiffs right to a jury trial would depend entirely on the Sheriff's capriciousness. Plaintiff could never request a jury trial if the sheriff did not will it; but, the sheriff could demand trial by judge or jury in any case.
While the right to trial by jury is not a fundamental right, this State cannot grant the right to a particular litigant in civil actions and deny it to others in the same action or similar actions. The legislature is prohibited from passing any local or special law which deals with any of the subjects enumerated in La. Const. Art. III, § 12(A). Kimball, 712 So.2d at 46. The Supreme Court stated in Kimball, 712 So.2d at 52, "[a] special law is one that confers particular privileges, or imposes peculiar disabilities or burdensome conditions in the exercise of a common right upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relations to the subject law." See also, JOHNSON, LEGISLATIVE PROCESS, 36 La.L.Rev. at 549 (1976); State v. Labauve, 359 So.2d 181 (La.1978); Teachers' Retirement Sys. of Louisiana v. Vial, 317 So.2d 179, 183 (La.1975). To interpret La.R.S. 13:5105 as suggested by the Sheriff necessarily would require us to declare it a special law. The law would allow a political subdivision, an extension of the state, to select which civil action it desired to try by jury out of all civil cases filed against it by plaintiffs alleging similar or same causes, without any justification or reason. As such, it would violate Art. III, § 12(A)(3)[1] of the Louisiana Constitution "which prohibits the legislature from passing a special law which affects any particular lawsuit." Kimball, 712 So.2d at 53. See also, Everett v. Goldman, 359 So.2d 1256 (La.1978); State v. McCue, 141 La. 417, 75 So. 100 (1917); State v. Felter, 141 La. 58, 74 So. 629 (1917). We do not believe the legislature, when enacting La.R.S. 13:5105, intended to violate this constitutional restriction or that the statute nonetheless grants a political subdivision the power to arbitrarily decide whether or not it will have a jury trial in a particular civil action.
Courts are required to interpret a statute "so as to preserve its constitutionality" if there is a reasonable way to do so. State in the Interest of A.C., 93-1125 (La.1/27/94), 643 So.2d 719; State v. Newton, 328 So.2d 110 (La.1975). In interpreting a statute, we must "consider all parts together, giving effect to all parts, if possible, and not construing as surplusage any sentence, clause or word, if a construction can be legitimately found which will give meaning to and preserve all the words of the statute." Perkins v. State Bd. of Elementary and Secondary Educ., 562 So.2d 930, 930 (La.App. 1 Cir.), writ denied, 565 So.2d 448 (La.1990). The legislature is never presumed to have inserted "superfluous, useless and meaningless words, sentences, phrases, or clauses in its enactments." Colwell v. State, Through *1124 Office of Atty. Gen. of Louisiana, 506 So.2d 941, 944 (La.App. 1 Cir.), writ denied, 508 So.2d 89 (La.1987).
Reading La.R.S. 13:5101 as a whole, with particular focus on Subsection (D) and all of its words, we find no rational justification for deleting from it the words "or the plaintiffs in a suit;" and, equally so, no good reason for adding, as the Sheriff urges, the phrase "in the above captioned matter." Neither are we persuaded to read "in the above captioned matter" as "in the above captioned matter and all other matters." A political subdivision must be presumed to know the generally prevailing meaning of the words it uses in an enactment or resolution. The Sheriff does not allege that words "and all other matters" were not included in the resolution because of some typographical or other clerical error.
To give effect to the whole provision, mindful that we must presume the constitutionality of a statute, it just makes better sense to interpret La.R.S. 13:5105 as requiring a political subdivision to execute a blanket waiver, foregoing its right to non-jury trial in all civil actions when it desires a jury in any particular one. Reading the statute in this manner avoids infringement on plaintiffs' due process rights and renders it in compliance with Art. III, § 12(A)(3). Accordingly, we find no palpable error in our earlier rulings on this issue. Finding none, it is unnecessary to address the companion timeliness issue, though we note in passing that our brethren on the first circuit court of appeal in Navarro, 470 So.2d 983, found untimely a motion for jury trial where the lone defendant who had perfected such a request had been dismissed and the remaining defendants waited more than ten days after this party's dismissal to file their request.
JUDGMENT ASSIGNMENTS OF ERROR
I. Standard of Review
Courts of appeal normally review findings of fact using the manifest error or clearly wrong standard. Rosell v. ESCO, 549 So.2d 840 (La.1989). The Sheriff and Sphere Drake argue the judge and jury determinations are in substantial conflict; thus, we must apply the de novo rather than manifest error standard in reviewing this record on appeal. They cite Hasha v. Calcasieu Parish Police Jury, 94-705 (La.App. 3 Cir. 2/15/95), 651 So.2d 865, writs denied, 95-667 (La.4/28/95), 653 So.2d 592 and 95-676 (La.4/28/95), 653 So.2d 593, a decision rendered by this court, which they assert supports their position.[2] However, they failed to mention our holding in Ourso v. Grimm, 92-1274 (La.App. 3 Cir. 1/5/94), 630 So.2d 963, writs denied, 94-339 (La.3/25/94), 635 So.2d 231 and 94-346 (La.3/25/94), 635 So.2d 230. In that case, we said "in a bifurcated trial where the jury and the trial judge reach conflicting findings as to the liability of public and private defendants, a JNOV is a proper means of reconciling the two verdicts." Id., at pp. 3-4, 630 So.2d at 966; See also, Dean v. Terrebonne Parish Police Jury, 510 So.2d 82 (La.App. 1 Cir.1987), citing Champagne v. American Southern Ins. Co., 295 So.2d 437 (La.1974); Randolph v. General Motors Corp., 93-1983 (La.App. 1 Cir. 11/10/94), 646 So.2d 1019, writ denied, 95-194 (La.3/17/95), 651 So.2d 276; Lemire v. New Orleans Pub. Serv., Inc., 458 So.2d 1308 (La.1984). We noted "[i]n such cases, this circuit has adopted the position that there is no conflict between the findings of the jury and the trial judge because, as a matter of law, the jury has no right or duty to adjudicate the fault of the public defendant." Ourso, 630 So.2d at 965-66. See, Lasswell v. Matlack, Inc., 527 So.2d 1199 (La.App. 3 Cir.), writ denied, 532 So.2d 104 (La.1988); Rogers v. Calcasieu Parish Police Jury, 487 So.2d 190 (La.App. 3 Cir.), writ denied, 489 So.2d 924 (La.1986).[3]*1125 The trial judge granted a JNOV in this case, adjusting the jury's quantum award; but he did not change the jury's fault assessment. The trial judge found the Sheriff 55% at fault for causing Jaymie's injuries; and, the jury assessed him only 32.5% fault in causing these injuries. In reviewing the JNOV's quantum adjustments, we will apply the manifest error/abuse of discretion standard. Dowden v. Mid State Sand & Gravel Co., Inc., 95-231 (La.App. 3 Cir. 11/2/95), 664 So.2d 643, writ denied, 95-2864 (La.2/2/96), 666 So.2d 1099; Higley v. Kramer, 581 So.2d 273 (La.App. 1 Cir.), writ denied, 583 So.2d 483 (La.1991). However, we find the assessment of fault by the judge and jury remain in conflict and must be harmonized.[4] Accordingly, we will examine the record to decide which fault assessment is more reasonable. Hasha, 651 So.2d 865.
LIABILITY
We must employ the duty/risk analysis in reviewing the lower court liability judgment against the Sheriff and his insurer for the tortious acts which plaintiffs complain caused them injury. Blair v. Tynes, 621 So.2d 591 (La.1993); Vicknair v. Hibernia Bldg. Corp., 479 So.2d 904 (La.1985); Harris v. Pizza Hut of Louisiana, 455 So.2d 1364 (La.1984). As the Supreme Court instructed in Blair, 621 So.2d 591, the determination of legal liability in tort cases necessarily turns on several pertinent inquiries which include: 1) whether the conduct of which plaintiff complains was a cause-in-fact of the harm; 2) whether there was a duty on the part of the defendant which was imposed to protect against the risk involved; 3) whether there was a breach of that duty; and 4) damages.
The Sheriff first asserts that the trial judge and jury manifestly erred in finding the conduct of his deputies was a factor in causing the second accident. The facts, he claims, simply do not establish that his deputies passed the scene of the first accident, without stopping, prior to the second accident occurring. He also complains the trial judge compounded this alleged factual error by applying, in plaintiffs' favor, an evidentiary presumption that he failed to produce certain radio tapes and statements because they would have been detrimental to the defense. Even if the facts were sufficient to establish that his deputies passed the scene of the first accident, the Sheriff remains convinced, their failure to do so was not a cause-in-fact of the second accident; and, "the scope of protection afforded by the duty of [his deputies] did not extend to the harm sustained by [Jaymie Edwards] when a speeding, grossly intoxicated driver crashed into the well-lighted scene where [Jaymie] had voluntarily placed himself in a position of peril."
Sphere Drake argues, furthermore, whether the phraseology used in determining the ambit of the duty owed by the Sheriff is "`proximate' versus `remote' causation, or risks beyond the ambit of protection spread by the defendant's duty, or `legal' causation, or some other phrase," a defendant who has engaged in substandard conduct "cannot reasonably be asked to respond to all persons for all risks which can causally be linked to their conduct." Sphere Drake's argument rests on the following oft-quoted Wex S. Malone comment:
*1126 All rules of conduct, irrespective of whether they are the product of a legislature or are part of the fabric of the court-made law of negligence, exist for purposes. They are designed to protect some persons under some circumstances against some risks. Seldom does a rule protect every victim against every risk that my befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of determining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises. How appropriate is the rule to the facts of this controversy? This is a question that the court cannot escape. (Emphasis added).
MALONE, RUMINATIONS ON CAUSE AND FACT, 9 Stan.L.Rev. 60, 73 (1956) (emphasis added).
In final analysis, Sphere Drake asserts, we must decide whether the risk incurred by Jaymie Edwards, even if linked to the alleged omitted conduct of the Sheriff's deputies, ought to be one with compensable consequences. In making this determination, it encourages us to entertain the following policy considerations:
(1) ease of association: how easy is it to associate the type of harm suffered by the plaintiff with the conduct of the defendant?...
(2) administrative considerations: Will the inclusion of risks such as this one pose problems in future cases?....
(3) economic consideration: are there indications that this loss can be borne equally as well by plaintiff as by defendant, or that placing such an economic burden on defendant in this and future cases will jeopardize or perhaps terminate his activity, which is vital to society, or at least might make it unduly expensive?
(4) moral consideration: is the plaintiff a person entitled to broad protection by the law (such as a rescuer or a child), or conversely has the plaintiff failed to take precautions to avoid the risk presented or failed to mitigate his own damages, so that his position in the courtroom is not necessarily deserving of any special treatment or any broad inclusion of the risk that he actually incurred?
(5) type of activity which defendant engages: is the defendant engaged in a particularly dangerous activity for profit which ought to bear some or most of the accident costs as the expense of doing business, or it defendant engaged in a socially necessary activity which might ill afford the imposition of an unusual risk though the risk might be causally related to the activity?
We are not without guidance in assessing the merit of defendants' contentions. The legislature vested law enforcement officers with exclusive authority to regulate traffic; and they are "duty bound to exercise this power reasonably to protect life and limb and to refrain from causing injury or harm." Blair, 621 So.2d at 596; LeJeune v. Allstate Ins. Co., 365 So.2d 471 (La.1978). When a law enforcement officer becomes aware of a dangerous traffic situation, he has the affirmative duty to see that the public is not subjected to unreasonable risks of harm. Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173; Monceaux v. Jennings Rice Drier, Inc., 590 So.2d 672 (La.App. 3 Cir.1991). The duty to control traffic encompasses "not only the direction of vehicular traffic, but also the direction of pedestrian activity." Blair, 621 So.2d at 596.[5] In Curry v. Iberville Parish Sheriff's Office, 405 So.2d 1387 (La.App. 1 Cir.1981), writs denied, 410 So.2d 1130, 1135 (La.1982), the first circuit affirmed a lower court judgment holding an auxiliary deputy liable for injuries sustained by a pedestrian. Though the facts in that case are not on all fours with the present, they are strikingly similar. Mr. Curry was a passenger in a vehicle which was struck by an Iberville Parish Sheriff's Office vehicle, operated by auxiliary deputy Daigle. After walking *1127 to the rear of his vehicle to inspect the damage, Mr. Curry was injured when a vehicle driven by a highly intoxicated motorist struck his vehicle which was partially obstructing the highway. Deputy Daigle admitted "he had taken no steps to protect the scene of the [first] accident before the second accident occurred." Id. at 1389. Upholding the jury's liability finding, the appellate court noted:
"[T]he evidence is clear that a deputy is charged with the responsibility of protecting an accident scene. There is ample evidence that [the deputy] had two to three minutes in which to perform that duty, which was more than enough time. We agree with the jury that his failure to do so was a cause in fact of the second accident."
Id. (emphasis added).
The defendants also argued "Curry's conduct in knowingly placing himself in a position of peril, on a public highway, constituted contributory negligence which preclude[d] his recovery." Rejecting this argument as well, the court found Curry's position "proved to be perilous because of the failure of [Daigle] to protect the scene of the accident and the failure of [the drunk driver] to see what he should have seen." Id, at 1389.
Again, in Duvernay v. State, Through Department of Public Safety, 433 So.2d 254 (La.App. 1 Cir.), writ denied, 440 So.2d 150 (La.1983), the first circuit affirmed a lower court judgment holding a deputy sheriff liable for injuries sustained in an accident which occurred at the scene of a malfunctioning light. In that case, a traffic light at the intersection of two highways was malfunctioning. The condition was reported to the deputy who was a dispatcher for the Ascension Parish sheriff. The deputy reported the condition to the State Police. No steps were taken by the deputy to have the intersection secured. An accident occurred at the scene of the malfunctioning light causing injuries. The court stated:
As did the trial court, we find that once [the deputy] became aware of the dangerous traffic situation that existed, he then had the duty to take affirmative action to see that motorists, such as Duvernay, were not subjected to unreasonable risks of harm. He did not fulfill his duty merely by sending the teletype message to the State Police. He was required to do more. He should have ascertained if the message was received. He should have either dispatched a patrolman to the scene immediately or made sure the State Police sent a trooper to secure the intersection. He should have made his replacement fully aware of the circumstances. We agree with the trial judge that the intersection could and should have been secured by the Sheriff's Department prior to the accident. [The deputy] breached the duty placed upon him.
Mindful of the holding in these cases and the statutory duty imposed on law enforcement officers generally, we turn to address the specific issues raised by the Sheriff and Sphere Drake.
I. Did a Deputy Pass the Accident Scene?
The Sheriff argues the trial judge and jury clearly erred when they concluded his deputies passed through the scene of the first accident and failed to stop. Five witnesses (Donald Handy, Rooney Woodard, Cecil Roessler, Marvin Norwood and Carolyn Norwood) testified two Calcasieu Parish Sheriff's deputies drove through the initial accident scene without stopping.
Standing in their yard between 6:00-6:30 p.m. on December 22, 1993, Donald Handy and his wife noticed Sissy Woodard and waived to her as she proceeded in the direction of her driveway. Seconds later, they observed the hood of a pick-up truck "dipping" as the driver tried to stop it. While they attempted to waive Sissy "off," they "heard [tires] squealing and moments later [the pickup truck] reared [Sissy's vehicle]"pushing it some distance in the front yard of Jaymie Edwards. Seeing two individuals exit the truck, Donald Handy decided to aid his neighbor, who was still in her vehicle complaining of neck pain. After urging her to keep still while awaiting the arrival of an ambulance, he ran across the street to alert Sissy's family. When he returned, accompanied by Sissy's husband, he noticed a "lot of children ... playing around the truck" *1128 which was halfway on the road, partially obstructing it. According to Handy, there also were "people on foot ... people were slowing down [in their cars] ... and [he] could almost envision another rear end accident." So, he "tried to control the situation" by directing traffic through the accident site. Within minutes, Jaymie Edwards, also witnessing the first accident, offered to help Handy. Edwards positioned himself north while Handy remained south of the accident scene. As daylight rapidly faded, the wives of the two men handed them each a "red tipped" flashlight and a two-way portable radio. The men continued to direct traffic using the radios to communicate between them, the flashlights as they signaled motorists, and two strobe lights which they placed in the roadway "at certain times." The strobes, Handy described, were "little bitty things" with actual aluminous tips "smaller than the foam padding on [a] microphone;" and not at all "in the same league as....[found] on the top of a police vehicle." About 5-10 minutes later, Handy testified, he noticed a law enforcement unit, with flasher on, approaching from the north with Calcasieu Parish Sheriff Wayne McElveen's name and the Parish's decal on the side. Passing "within 30 feet of [him]," Handy stated, the unit "[headed] south" through the accident scene with its red strobe lights activated, and continued without stopping before "[hanging] a right" a quarter of a mile down the road. Five to ten minutes later, Handy related, a second law enforcement unit (with the Westlake Police Department decal showing) slowed down as it too proceeded through the accident scene headed south. Noticing the driver waiving at him, Handy (who worked part-time in the past for the Westlake Police Department) identified the driver as Officer Henry Simms. About 10 minutes later, a third unit "[came] from the north" headed south; but, as Handy testified, this unit "actually stopped." Again, Handy noticed the marking on the unit, and stated it was a Calcasieu Parish Sheriff's car. The driver "rolled his window down," according to Handy, while making a "friendly gesture toward him." Thinking at first that the deputy knew him, Handy inquired: "how are you doing, sir?" As Handy related, the driver responded with the same question, "[shaking his] hands very [professionally];" he was neatly dressed in a uniform which had a "Calcasieu Parish map on the left sleeve" and a "star badge" on the front. When the driver asked "how to get to Moss Bluff," Handy testified, he answered the deputy's question, watched him turn his unit around, and proceed in that direction. Five to seven minutes later, Handy stated, Jaymie by radio "warned [him] about a vehicle ... coming toward [him] from the south [pretty quick];" he turned looked south, heard an impact sound, an engine racing, and noticed a car turned sideways before becoming airborne, striking a nearby pine tree. He proceeded toward the vehicle that hit the tree; and, as he attempted to open the door, the driver shoved and it opened. The driver appeared "aggravated," resisted assistance, was cursing, rocked from right to left; and, Handy smelled alcohol not only "on his breath, but on his person." Handy also attempted to assist the driver's wife who was crouched "under the glove compartment ... down beneath the dash regurgitating." While professing she was not hurt, the passenger blurted out "I'm not sick, I'm just drunk we just came from a party." Handy then noticed a body in the fetal position near the second accident scene attended by Mr. Rooney Woodard. As Handy attempted to assist other people he thought might be injured, an ambulance arrived and "picked up Jaymie." The roadway near the two accident scenes became impassable. A state trooper arrived shortly thereafter; but Handy remained at the site, offering his assistance, until "almost 10:00 p.m" when he proceeded to the hospital where Jaymie was transported. During the course of his stay, Handy testified, people were standing just inside the foyer ... and "there was yelling going on everybody was very upset because weeveryone there just felt like this could not have happened." Shortly after arriving, two supervisors from the Calcasieu Sheriff's Department "came up and talked" to the group and stated "they wanted statements and asked if [they] mind being tape recorded." According to Handy, the supervisor began questioning them "one-on-one;" and he remembered relating that two Calcasieu Parish Sheriff's units had *1129 passed the scene without stopping. As they prepared to leave, the supervisors asked Handy "did you speak to anyone else about this accident," when he said "no, sir," they said "good we'll keep it that way ... we'll be in touch." Handy never heard from the supervisors again. On cross-examination, Handy recalled the events a second time; his testimony was essentially the same as on direct examination. Handy acknowledged that the "times" he recalled throughout the ordeal might not be accurate; but he felt comfortable in attesting that the second accident occurred 15-20 minutes after the first.
Mr. Rooney Woodard, Sissy's father-in-law, also testified two Calcasieu Parish Sheriff's units passed through the accident scene without stopping. Mr. Woodard remained at the scene after Sissy was transported to the hospital. He stated two Calcasieu Parish Sheriff's units and one Westlake Police unit passed through the accident scene.[6] He overheard the driver of the second Calcasieu Parish Sheriff's unit ask Handy for directions to Moss Bluff. Although the sequence in which Woodard recalled each law enforcement unit passed by the scene of the first accident varied somewhat from Handy's account, he never wavered in his testimony that two Calcasieu Parish Sheriff's units passed the accident scene.
Marvin Norwood and his wife, Carolyn, were entering their car "fixing to go Christmas shopping, when they heard sounds from the first accident between "5:00 and 6:00 p.m. that evening." After discovering their niece, Sissy Woodard, was involved in the accident, the Norwoods testified they remained in their car parked in the driveway "watching the scene" of the accident for an "hour, hour and a half." As they explained, Sissy's car "coasted up pretty close to [their] home." During this time, they saw two sheriff's and one city police unit pass the scene of the accident. As Mr. Norwood related, "[t]he City Police car stopped briefly, talked to [the man that was flagging traffic] and he left and then the Sheriff's Department car, one of them, I'm not positive, I think he turned around on Olin Street." Mrs. Norwood admitted she was not attentive all the time; but, she saw a white car first and then a blue car. The white car she identified as a sheriff's car, although she referred to them all as "cop cars." The Norwoods could not remember whether the law enforcement units arrived before or after the ambulance that transported Sissy to the hospital left. They were certain, however, that between the arrival of the ambulance and their leaving the scene, the units passed the scene. Both Norwoods testified they left the scene sometime after the ambulance left, "maybe 10-15 later," but they could not say definitely how much time actually elapsed.
Cecil Roeseler's testimony, the nephew of Rooney Woodard, was the most inconsistent of all the eyewitnesses. Arriving at the scene before the second accident, he initially recalled on direct examination seeing two Calcasieu Parish Sheriff's units and one Westlake unit pass without stopping. On cross-examination, Cecil's recollection faded. He stated the first accident occurred around 4:00-4:30 in the afternoon, but he could not really say for sure; the ambulance did not arrive for a long time but he could not "pin" the time down; the second accident happened an hour-hour and half after the first but he could not remember the "times because it [had] been a long time ago;" a Calcasieu Parish Sheriff's unit passed the scene before the ambulance arrived but he admitted testifying at an earlier deposition that he saw Officer Simms in a Westlake Police Unit pass the scene twice before the second accident. He also stated the Norwoods followed the ambulance as it left the scene with Sissy en route to the hospital.
At trial, the defense attempted to establish at no time did a Calcasieu Parish Sheriff's Deputy transverse the accident scene because all deputies were accounted for and were questioned regarding the accident. The Sheriff introduced various time logs maintained by his Office, time records kept by the ambulance service and the state police to show that a very short period elapsed *1130 between the time the first ambulance departed the scene and the time Jaymie Edwards was injured. The Sheriff argued this short period of time (which he contends was approximately 8 minutes) was not enough time for a Sheriff's deputy to take control of the accident scene. In brief, the Sheriff recites "the log of the ambulance indicated it left at 6:34 p.m ....[t]he 911 call concerning plaintiffs accident came in at 6:42 p.m., only eight (8) minutes later." However, the Calcasieu Parish Communications District log, which the Sheriff references to support his time-line theory, shows the contrary. When the dispatcher first notified the Life Care unit that an accident had occurred on Davis road, the operator of the unit responded "they [had] been there since [6:25 p.m.]." Handy testified the first vehicle to arrive at the scene was a white sedan with a Life Care emblem (Holston) on its side. This vehicle, he estimated, arrived "5-10 minutes" after the first accident. Tom Javins, an employee of Life Care Emergency Medical Services, testified he actually arrived at the scene at 6:23-24 and called for an ambulance at 6:25. The trial judge found the first ambulance departed at 6:34 p.m. and "the call to the ambulance service for the second accident was around [6:48]," which "would suggest a 14-minute difference in time gap." Although defendants question the trial judge's estimation, and the witnesses' recollection of when the law enforcement units traversed the scene of the accident, the record shows the first accident occurred prior to 6:25 and the second accident occurred a minute or two before 6:42. We believe a rational trier of facts could reasonably conclude that at least 14 minutes elapsed between the two accidents; and, the witnesses were truthful but, as they admitted, were unable to accurately recall the sequence or exact times the units passed the scene after the first accident.
Even the Sheriff urges us in brief to accept as truthful Donald Handy's and Rooney Woodard's recollection that Henry Simms, the City of Westlake officer, passed through the accident scene without stopping to direct traffic. While readily accepting these witnesses testimony to prove the presence of Officer Simms at the accident scene, he asks this court to disregard the same witnesses' testimony regarding the conduct of his deputies. Although defendants refer us to the testimony of Gary Bailey, Tom Javins, Hugh Sanders, Ruth Handy, and Virginia Gail Edwards, all the cited witnesses on cross examination admitted either not arriving at the scene immediately after the first accident, not noticing Handy or Edwards directing traffic, not focusing on all the events occurring at the time, or leaving the scene from time to time to attend other matters. A reasonable judge or jury could have found these witnesses' testimony did not sufficiently rebut the accounts related by the eyewitnesses who confirmed seeing the law enforcement units pass the scene of the accident.
In reviewing the evidence, we are guided by the manifest error-clearly wrong standard, which authorizes us to reverse a trial court's factual finding only if we find from the record that a reasonable factual basis does not exist for the finding of the trial court and the record establishes the finding is clearly wrong. Stobart v. State, Through Dep't of Transp. and Dev., 617 So.2d 880 (La.1993); Mart v. Hill, 505 So.2d 1120 (La. 1987). An appellate court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. A reviewing court must examine the record in its entirety to determine whether the trial court's finding were clearly wrong or manifestly erroneous. Id. The real issue is not whether the trier of fact was right or wrong, but whether the fact finder's conclusion was a reasonable one. Stobart, 617 So.2d at 882. Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Where two permissible views of the evidence exist, the fact finder's choice between them cannot be clearly wrong. Stobart, 617 So.2d 880.
We cannot say, after carefully reviewing the evidence, that the trial judge or jury manifestly erred in accepting as true the witnesses' testimony that two sheriff's unit *1131 and one city police unit traversed the scene of the first accident without stopping.
Neither are we convinced the trial judge committed legal error by applying, in plaintiffs' favor, an evidentiary presumption that the Sheriff failed to produce certain radio tapes and statements because they would have been detrimental to the defense. After receiving a complaint that two deputies had driven past the scene of the first accident and failed to render assistance, Deputy Bill McIntosh was instructed to investigate the allegations. He obtained statements from several witnesses gathered at St. Patrick's Hospital, where Jaymie Edwards was transported following the accident. Deputy McIntosh prepared a report detailing the allegations and his investigation. He handed the report to his supervisor with the witnesses' statements attached to it. The report and all the statements subsequently vanished; and the radio tapes recording the conversation of Calcasieu Parish Sheriff's deputies during the relevant period also were erased.
The failure of a litigant to produce evidence within his reach raises the presumption that the evidence would have been detrimental to his case. Babineaux v. Black, 396 So.2d 584 (La.App. 3 Cir.1981); Williams v. General Motors Corp., 93-287 (La.App. 4 Cir. 2/11/94), 639 So.2d 275, writ denied, 94-1898 (La.11/11/94), 644 So.2d 387, 388; Johnson v. Department of Pub. Safety, 627 So.2d 732 (La.App. 2 Cir.1993), writ denied, 94-403 (La.4/4/94), 635 So.2d 1107; Bourgeois v. Bill Watson's Investments, Inc., 458 So.2d 167 (La.App. 5 Cir.1984). However, this presumption does not apply when a reasonable explanation exists for the failure to produce the evidence. Babineaux, 396 So.2d 584; Morehead v. Ford Motor Co., 29,399 (La.App. 2 Cir. 5/21/97); 694 So.2d 650, writ denied, 97-1865 (La.11/7/97); 703 So.2d 1265; Randolph, 646 So.2d 1019; Bourgeois, 458 So.2d 167.
The Sheriff does not dispute the radio tapes and documents prepared by Deputy McIntosh were lost and/or destroyed. He urges, however, a reasonable explanation exists for his failure to produce the tapes and documents. As the Sheriff explained, the tapes were reused "in the regular course of business" because "they are so expensive" and the report prepared by Deputy McIntosh was not a report at all: The deputy simply "spoke with Donald Handy, made some notes, and then returned to the Sheriff's Office where he then copied his notes into statement form."
La.R.S. 44:1(A)(2) requires the Sheriff to preserve "all ... records, writings ... letters... tapes, recordings, memoranda, and papers ... or any other documentary materials, regardless of physical form or characteristics... having been used, being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function which was conducted, transacted, or performed by or under the authority of the constitution or laws of this state, or by or under the authority of any ordinance, regulation, mandate, or order of any public body... [which] are `public records'...." La. R.S. 44:36(A) provides: "All persons and public bodies having custody or control of any public record ... shall exercise diligence and care in preserving the public record for the period or periods of time specified for such public records in formal records retention schedules developed and approved by the state archivist and director of the division of archives, records management and history of the Department of State." In instances where "a formal retention schedule has not been executed, such public records shall be preserved and maintained for a period of at least three years from the date on which the public record was made."
Shannon Daughenbaugh, Assistant Supervisor of Communication for the Sheriff's Department, testified at least four radio frequencies and all incoming phone lines are recorded on Dictaphone tapes. The tapes (reels) record up to 25 hours each and are marked beginning with the number 1, for the first day of the month, and the remainder are marked in numerical sequence for each succeeding day of the month, until the end of the month when they are renumbered and reused the next month. The reels cost $155 eacha cost the Sheriff insists is too great to *1132 require him to purchase and maintain a tape each day for a period longer than 30 days. Yet, the Sheriff has not requested approval by the State Archivist or the Director of Archives to institute a shorter "formal retention schedule" for the radio tapes. Instead, he has unilaterally "kept in place for years a practice" of destroying public records which violates the express mandate of R.S. 44:1, et seq.[7] We simply cannot accept as reasonable the Sheriff's explanation for destroying the radio tapes under the circumstances, particularly noting Shannon also testified "important parts" of the "big tape" had been recorded on "small tapes" in the past for preservation when "[relating] to an investigation or whatever."
Neither are we persuaded by the Sheriff's argument that the availability of the CAD reports and the live witnesses renders moot plaintiffs' contention that they were prejudiced by the lost or destroyed radio tapes and documents prepared and collected by Deputy McIntosh. Shannon admitted the CAD reports[8] did not reflect all of the communication recorded on the tape. And, the statements contained the fresh, immediate recollections of the eyewitnesses' who all admitted at trial the lapse of time made it difficult for them to recall the exact times and sequence of events on the night of the accidents. It matters not whether Deputy McIntosh's "writing" was a note copied into "statement form," it also was a public record; and, so too, were the witnesses' statements. The Sheriff breached a statutory duty to exercise diligence and care in preserving them. The "note" and statements were relevant, material, and may have been beneficial to the triers of fact in their search for the truth, particularly noting the occurrence and sequence of events preceding the second accident were vehemently contested at trial.
II. Cause-in-Fact
Sphere Drake and the Sheriff argue plaintiffs "failed to establish the requisite cause-in-fact relationship between the alleged conduct of the unidentified sheriff's deputies and the risk incurred by Jaymie Edwards." The evidence, they contend, failed to show even if the sheriff's deputies had acted in a different fashion, it is more probable than not that Jaymie's injuries would not have occurred. They insist "common-sense" tells us the result would not have changed even if deputies would have stopped and taken control of the accident scene. The "intervening conduct of Daugherty," who was intoxicated, speeding, and inattentive, they maintain would have resulted in an accident occurring nevertheless. They argue, further, the alleged omitted conduct by the deputies was in fact supplied by Handy, who took charge of the accident scene, and still the accident occurred. Were we to frame the issues, as the defense suggests, we too might possess sufficient "common sense" to find merit in their position. But the real cause-in-fact inquiry we are compelled to make in this case is more narrow in scope: It does not require *1133 us to decide affirmatively whether the second accident would have occurred regardless. And, we agree Daugherty's conduct, in operating his vehicle while intoxicated, inattentive and at an excessive rate of speed, was a cause-in-fact of the injuries Jaymie sustained. But "there can be, and frequently is, more than one cause-in-fact of [a] tort victim's injuries." Syrie, 693 So.2d at 1179 (dissenting opinion). Plaintiffs alleged the deputies were negligent: (1) In failing to stop and take control of the accident scene; and (2) in failing to take steps to remove Jaymie from a position of peril. Stated differently, they maintain: Had the deputies stopped and taken control of the accident scene, the injuries suffered by Jaymie Edwards would not have occurred because he would have been removed from the "zone of danger." Our courts have held, on more than one occasion, when a law enforcement officer becomes aware of a dangerous traffic situation, he has an affirmative duty to see that motorists, as well as, pedestrians are not subjected to unreasonable risks of harm. Syrie, 693 So.2d 1173; Blair, 621 So.2d 591; Monceaux, 590 So.2d 672; Curry, 405 So.2d 1387. The Sheriff is not seriously suggesting that his officers had no duty. Rather, he argues even if they had stopped, nothing would have happened differently in this case. But, this argument defies good sense because it presupposes that the officers had no duty to do anything more than Handy did to secure the accident scene and they would have allowed Jaymie to continue standing in harm's way. But the latter, the evidence proves, would not have happened and the deputies, in properly performing their duty, were required to do more. As Deputy Mefford acknowledged, to "secure the scene" of an accident, a deputy would normally "position [his] unit in a location" where its red lights can be seen, and the unit can serve as a "block or like some sort of barrier between the oncoming traffic and the incident." When asked "you don't let civilians do the work of law enforcement, do you [when you take control of the scene]," Mefford replied "no." William Katsarsis, an expert in the area of police practice and procedures, also testified:
Q: Now. Is it your opinion that the injuries to Jaymie Edwards would not have occurred if the sheriff deputy had stopped and secured that scene?
A: Yes. He wouldn't have been on the roadway. The deputy would have taken control of the scene, the patrol car would have been at the southern most portion with the car at the northern portion of the scene, and the deputy would have been choreographing the cars coming and going on the two lanes until he or she could get some additional help. Mr. Edwards wouldn't have been on the roadway. And that's the reason why the misconduct is so important to determine.
The cause-in-fact issue, correctly framed, is whether Jaymie would have been injured had the officers taken proper control of the accident scene. By their own admission, he would not have been in the "zone of danger" and he would not have been a tort victim. We cannot say the trial judge or jury committed manifest error in concluding the deputies' failure to stop and take control of the accident scene was a cause-in-fact of Jaymie's injuries.[9]
III. Breach of Duty and Scope of Protection
Both Sphere Drake and the Sheriff argue the injuries sustained by Jaymie were not within the scope of protection of the duty imposed on the deputies to control the accident scene. They contend the ambit of the deputies' duty did not "extend to the harm sustained by [Jaymie] who had placed himself in a position of peril when he was hit by a speeding, and grossly intoxicated driver." Although conceding law enforcement officers have a duty to protect pedestrians, as well as motorists, this duty they urge attaches only "if an officer is already directing traffic." The Supreme Court, however, has stated from the moment a law enforcement *1134 officer becomes aware of a dangerous traffic situation, he has an affirmative duty to protect life and limb and to see that motorists and pedestrians are not subjected to unreasonable risks of harm. Syrie, 693 So.2d 1173. While the scope of an officer's duty to act may "not extend so far as to require that the officer always choose the `best' or even a `better' method of approach," the failure to approach at all is negligence per se. Id. at 1177. Had the officers done so in this case, they would have been duty bound to control the accident scene and to remove Jaymie from the very risk he ultimately incurred: That an inattentive, drunk driver might not stop in time to avoid causing yet another accident.
We also have read with great interest counsel for Sphere Drake's ruminations on this issue and taken in account each of the policy considerations he urges that we should make in this case. Suffice it to say, here, the Legislature and our courts have answered many of the questions he encourages us to revisit. The occurrence of the second accident was not so unexpected, unusual, or unforeseeable that we should depart from well settled jurisprudence and venture on a new policy course.[10] The deputies in this case had a duty to protect Jaymie and to remove him from harm's way. For us to deny him recovery, nevertheless, for the severe injuries he sustained as a result of the deputies' breach of this duty requires that we ignore the holdings in Curry, Blair, Monceaux, Duvernay, Syrie, and a litany of cases preceding and following them. We believe the better course here is to follow the path already traveled.
IV. Apportionment of Fault
The Sheriff argues the trial court did not consider whether the actions of Donald Handy or Jaymie Edwards constituted negligence. As a general rule, where a judgment is silent with respect to any demand which was at issue in the case under the pleadings such silence constitutes a rejection of that demand. Sun Fin. Co., Inc. v. Jackson, 525 So.2d 532 (La.1988); Montgomery v. Lafayette Parish Sch. Bd., 95-1613 (La.App. 3 Cir. 7/3/96), 677 So.2d 162, writ denied, 96-2035 (La.11/8/96), 683 So.2d 274; Bankers Trust of Louisiana v. Smith, 629 So.2d 525 (La.App. 5 Cir.1993); writ denied, 94-0124 (La.3/11/94), 634 So.2d 393.
A. Fault of Donald Handy
The Sheriff does not argue Donald Handy was negligent in assuming the task of directing traffic. Rather, he contends Handy's method of directing traffic was negligent. He suggests once Handy took charge of the accident scene, proper procedure required him to remove the obstructing vehicles from the roadway. Had Handy taken this course, the Sheriff suggests, the second accident would not have occurred; thus, Jaymie would not have been injured. He cites La.R.S. 32:141 and Wood v. May, 94-756 (La.App. 4 Cir. 12/15/94), 647 So.2d 1265, as support for his position. We note La.R.S. 32:141 places a duty only upon the operator of a motor vehicle to move a vehicle from a highway. In addressing the responsibility this provision imposes on motorists, the fourth circuit held:
LSA-R.S. 32:141 allows for the possibility that a disabled vehicle may sometimes have no choice but to stop on the highway. But the statute requires that the driver of even the disabled vehicle "... shall remove it as soon as possible, and until it is removed it is his responsibility to protect traffic."
Donald Handy was not a motorist involved in this case; and the statute imposed no duty upon him to protect traffic until the vehicles were removed. Even if Donald Handy's method of directing traffic was not the most prudent or in accord with "proper procedure," his alleged misconduct was not a cause-in-fact of Jaymie's injuries.[11] Had the deputies stopped and taken steps to secure the scene, they could have removed the vehicles and Jaymie from the path of the intoxicated *1135 motorist before the second accident occurred.[12]
B. Fault of Jaymie Edwards
The Sheriff also asserts the trial court failed "to assign any degree of comparative fault to the plaintiff, who voluntarily placed himself in a position of grave peril, and who failed to keep a proper lookout." Contributory negligence must be determined objectively according to the standard of the conduct expected of a reasonable man under like circumstances. Buckbee v. Aweco, Inc., 614 So.2d 1233 (La.1993); Smolinski v. Taulli, 276 So.2d 286 (La.1973). The defendant has the burden of proving contributory negligence.
After reviewing the record, we do not find Jaymie's actions were unreasonable. An accident had just occurred which was obstructing traffic. Fearing another accident, and noticing Donald Handy was directing traffic alone, Jaymie offered assistance. The Sheriff asserts Jaymie acted unreasonably in turning his back and not watching the lane of traffic he was controlling. Jaymie's failure "to take every precaution against every foreseeable risk or to use extraordinary skill, caution and foresight does not constitute negligence or contributory [comparative] negligence." Jones v. Trailor, 93-2144, p. 3 (La. App. 4 Cir. 4/28/94), 636 So.2d 1112, 1115, writ denied, sub. Nom. Rome v. Traylor, 94-1337 (La. 9/16/94), 642 So.2d 193, citing Smolinski, 276 So.2d 286. And, just as the court found in Curry, Handy's position proved perilous because the deputies failed to take control of the scene and the drunk driver failed to see what he should have seen. We cannot say the trial judge erred in failing to assign him any fault in causing his injuries.
C. Fault of The City of Westlake and Officer Henry Simms
The Sheriff asks this court to assess fault to the City of Westlake because its officer, Henry Simms, passed through the accident scene without rendering assistance. Plaintiffs agree that Officer Simms passed the accident scene and did not stop. However, it is undisputed that the location of the accident scene was out of the territorial jurisdiction of the City of Westlake.
At trial, plaintiffs filed a Motion in Limine to exclude consideration of the City of Westlake's alleged fault. The trial court granted the motion, and the Sheriff sought review by this court. Citing Hayes v. Parkem Industrial Services, Inc., 598 So.2d 1194 (La.App. 3 Cir.1992), writ granted, 608 So.2d 154 (La. 1992), writ dismissed, 610 So.2d 825 (La. 1993), this court found "no error in the trial court's ruling." While acknowledging our previous ruling, the Sheriff asks us to reconsider it. This court in Hayes, 598 So.2d at 1197 stated:
If a sheriff's jurisdiction and authority to act is limited to his parish, it stands to reason that he has no jurisdiction or authority to act outside his parish. It follows that if he has no authority to act outside his parish, he has no duty to act outside his parish. As to the plaintiffs in the present case, the sheriff's duty was no greater than that of a lay person.
Likewise, it stands to reason if the Westlake police officer had no jurisdiction nor authority to act outside the borders of the city limits, he had no duty to affirmatively act in this instance. The Sheriff does not cite any authority to support his contention that Officer Simms assumed a greater duty when he "left his jurisdictional boundary" and traversed the accident scene. This issue has been considered; and we are satisfied our earlier ruling is legally sound.
D. Allocation of Fault Between the Sheriff and Edward Daugherty
The trier of fact has the task of allocating fault and must consider the nature of the conduct of each party and the extent of the causal relationship between the conduct and the damages sustained. Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985); Hi-Tech Timber Co., Inc. v. Valley *1136 Elec. Membership Corp., 94-1033 (La. App. 3 Cir. 2/1/95), 649 So.2d 1203, writ denied, 95-568 (La.4/21/95), 653 So.2d 571. The trial court found the Sheriff was 55% and Daugherty 45% at fault in causing the accident. However, the jury assigned the Sheriff only 32.5% fault in causing Jaymie's injuries; assessing the balance, 67.5%, against Daugherty for his contributory fault.
In reaching his apportionment, the trial judge emphasized the deputies' duty to intervene and take control of the accident scene:
So, in view of these cases and taking into consideration that the very reason why a deputy should stop and take control at the scene is to prevent the very thing that happened in this case, to prevent a person being injured by a drunk driver, or a driver not obeying the laws and not paying attention.
It is undisputed that the negligence of Daugherty in operating his vehicle while intoxicated and at an excessive rate of speed was a substantial factor in causing Jaymie's injuries. But, the trial court found the Sheriff's deputies breached their duty to guard against the very risk that Jaymie ultimately encounteredthat a drunk, inattentive driver might cause him injury if he remained in harm's way. He attributed a higher degree of blame to the Sheriff's deputies in causing the accident. While the record evidence supports the jury's and judge's apportionments, we believe the trial judge's fault assessment was more reasonable, particularly noting the Supreme Court's holding in Campbell v. Louisiana Dept. Of Transp. & Development, 94-1052 (La.1/17/95), 648 So.2d 898. Had the Sheriff's deputies properly secured the scene and removed Jaymie from the "zone of danger," Daugherty's negligent conduct would not have caused the severe debilitating injuries he ultimately sustained. Whether Daugherty's conduct would have caused injury, regardless, to others standing in the danger zone is not germane to our finding. We must address the facts in this particular case involving this particular tort victim.
V. Jury Interrogatory Form
Sphere Drake asserts the trial court erred by not allowing the jury the opportunity to allocate fault to Donald Handy, the City of Westlake or Officer Henry Simms. However, Sphere Drake did not object to the jury interrogatory form in the trial court. And as noted, Sphere Drake even filed a motion requesting that the trial court delete Donald Handy from the verdict form. When a party fails to object to jury interrogatories before the jury retires, the party waives his right to raise the objection on appeal.[13]Sebastien v. McKay, 94-203 (La.App. 3 Cir. 11/23/94), 649 So.2d 711; Horton v. McCrary, 620 So.2d 918 (La.App. 3 Cir.1993), reversed in part on other grounds, 93-2315 (La.4/11/94), 635 So.2d 199. As such, we deem the issue waived and not properly before us. Clay v. International Harvester Co., 95-1572 (La.App. 3 Cir. 5/8/96), 674 So.2d 398.
QUANTUM ASSIGNMENTS OF ERROR
I. General Damages
The Sheriff contends the trial court's award of $800,000 for general damages was grossly excessive and constituted an abuse of discretion.[14] He suggests the highest *1137 amount that reasonably could have been awarded was $400,000. Plaintiffs answered the appeal and assert the award of general damages was inadequate, and ask for a minimum award of $1,000,000 for general damages. Sphere Drake "for the most part" adopts the arguments advanced by the Sheriff on the quantum issues. But, it urges us to consider the trial judge's alleged bias as we review the quantum awards. As noted, we have considered the bias issue and dismissed it as unsupported by the facts in this case and the law.
Our jurisprudence has consistently held, in the assessment of damages, much discretion is left to the judge or jury. Such awards will be disturbed only when there has been a clear abuse of discretion. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Foster v. Town of Mamou, 616 So.2d 837 (La.App. 3 Cir.), writ denied, 620 So.2d 842 (La.1993). Only after articulated analysis of the facts and circumstances peculiar to the particular case discloses an abuse of discretion, may an appellate court amend an award of damages. Reck v. Stevens, 373 So.2d 498 (La.1979). It is not appropriate to resort to a review of prior awards without a prior finding that the trial court abused its discretion. Theriot v. Allstate Ins. Co., 625 So.2d 1337 (La.1993).
There is no dispute that Jaymie Edwards suffered severe injuries from the accident. He sustained a severe closed head injury producing a coma that lasted approximately two weeks. He also suffered a severe fracture of his left leg. Jaymie remained hospitalized for a month and was then transferred to a rehabilitation center where he received treatment for more than three months. Through rehabilitation, Jaymie has been retrained to perform simple tasks, such as speaking, walking and eating. For approximately 20 days during October, 1994, Jaymie also was treated as an in-patient at a psychiatric clinic. The weight of the medical testimony indicates Jaymie will require supervision and assistance the remainder of his life.
Defendants emphasized that Jaymie's physical abilities have continually improved since the accident. They introduced a surveillance video showing Jaymie driving a Wave Runner (a jet skisingle occupant water craft) and fishing. Jaymie is capable of performing some physical activities, though the record is clear he sustained permanent weakness is his left side and knee which impairs his ability to walk. The medical evidence also confirms his cognitive abilities have diminished as a result of this accident. He suffers from severe deficits in memory and learning ability. He reads at the level of a third grader and has the math ability of a first grader. He also has severe deficits in his attention and concentration skills. He cannot recall conversations that occurred only minutes beforehand. Dr. Robert Taylor, a physical medicine and rehabilitation specialist, regarding Jaymie's need for lifetime supervision testified:
Q: Now, also I know when we talked to you before you mentioned the need for Jaymie to have some supervision in his life?
A: Correct.
Q: I think you mentioned that you felt like someone needed to actually live with him and supervise him on a daily basis?
A: Correct. I don't think he necessarily needs 24-hour visual or tactile contact or supervision but I think the potential for that needs to be there. You know, he has some severe persistent judgment and insight impairments. I worry more what trouble he can get himself into from a cognitive standpoint leading to physical problems.
Q: When you say from a cognitive standpoint. What do you mean?
A: Well, he has some fairly severe judgment and insight impairments andyou know, just like with the wave runner, you know, if he saw a half submerged log and thought he could jump that log on a wave runner. Things you and I might not consider doing, he might well consider doing.
*1138 Q: Due to his brain injury?
A: Correct.
Q: So he doesn't need someone to watch him or help him take care of his personal hygiene for example, but he does need someone there with him, living with him, to make sure he'sthat he's in a safe environment?
A: Right. Manage his daily affairs and justjust keep a close check on what he plans for himself for a given day.
Q: Would you recommend that Jaymie see someone like yourself on an annual basis?
A: Correct.
Jaymie's mental abilities will not drastically improve, and he will never return to the functional level he possessed prior to the accident. He suffered debilitating injuries that have greatly impaired his enjoyment of life. The trial court's decision to award him $800,000 in general damages was not an abuse of discretion; and, we will not disturb this award by decreasing or increasing it.
II. Future Medical Expenses
The trial court awarded Jaymie $1,045,690 for future medical expenses. Defendants contend this amount is excessive, and plaintiffs contend it is inadequate. We find the record amply supports the trial court's award.
The evidence regarding Jaymie's future medical needs was provided largely by Dr. John Grimes, an expert in the field of rehabilitation counseling. Dr. Grimes testified Jaymie will require routine medical care by physicians for the remainder of his life to prevent any deterioration in his condition. He also testified he will need therapeutic evaluation, physical supplies (wheelchairs, braces, etc.), and possible surgical interventions. In his opinion, Jaymie needs to visit a specialized rehabilitation facility for 3 to 6 months to teach him to live as independently as possible, although Jaymie will require daily supervision for the remainder of his life. How much supervision will depends on the results gained from the training at the specialized rehabilitation facility. According to Dr. Grimes, the best case scenario, would be Jaymie will need 8 hours a day of supervision; and, worst case scenario, he will require 16 hours a day. He estimated to obtain such supervision, Jaymie will have to pay $8 to $8.50 per hour. We note the trial court in his award calculated supervision for 8 hours rather than 16 hours per day. Jaymie's life expectancy was determined to be 39 years. This determination was not disputed.
Future medical expenses by their nature are incapable of precise measurement. Thus, much discretion shall be left to the trial court for the reasonable assessment of those damages. La.Civ.Code art.1999. In Stiles v. K Mart Corp., 597 So.2d 1012 (La. 1992), the Louisiana Supreme Court stated:
When the record establishes that future medical expenses will be necessary and inevitable, the court should not reject an award of future medical expenses on the basis that the record does not provide the exact value of the necessary expenses, if the court can examine the record and determine from evidence of past medical expenses and other evidence a minimum amount that reasonable minds could not disagree will be required. La.Code of Civ. Proc. art. 2164.
Based on Dr. Grimes' testimony and our independent review of the record as a whole, we find the trial court's award of $1,045,690 in future medical expenses is the "minimum amount that reasonable minds could not disagree will be required" for Jaymie care and treatment.
III. Lost Earnings
The Sheriff asks this court to reduce Jaymie's awards for past and future loss income. The trial court awarded him past lost earnings of $104,533 and future loss of earnings of $894,312. The Sheriff contends the awards should have been $84,100 for past lost wages and $596,500 for future loss of earning capacity.
Before the accident, Jaymie worked as a pipefitter and welder. At trial, his income during the previous five years before the accident was established. Both sides economists agreed the first year Jaymie worked should be disregarded because it was not *1139 illustrative of his earning potential. Defendants main complaint is the trial court erred in relying on plaintiffs' economist's calculations because his figures were based on the highest year of earnings out of the remaining four years of Jaymie's work history. They contend it was more appropriate to use an average of the remaining four years in determining lost earning capacity.
The Louisiana Supreme Court in Hobgood v. Aucoin, 574 So.2d 344, 346 (La.1990) addressed this issue:
While plaintiffs earning capacity at the time of the injury is relevant, it is not necessarily determinative of his future ability to earn. Damages should be estimated on the injured person's ability to earn money, rather than what he actually earned before the injury. Earning capacity in itself is not necessarily determined by actual loss; damages may be assessed for the deprivation of what the injured plaintiff could have earned despite the fact that he may never have seen fit to take advantage of that capacity. The theory is that the injury done him has deprived him of a capacity he would have been entitled to enjoy even though he never profited from it monetarily.
Under the circumstances, we cannot say the trial judge legally erred in relying on plaintiffs' economist's calculations. In arriving at a future lost wages award, the trial judge was not restricted to considering "the average wage" earned by Jaymie during the four year period; neither was he prevented from using Jaymie's highest wages to determine his future loss. It was certainly reasonable to conclude that Jaymie's future wages would not have remained the same and, more probable than not, would have increased significantly.
The Sheriff also asserts the trial court erroneously awarded Jaymie a sum for loss of fringe benefits. Fringe benefits are recognized as a proper element of damages. Myers v. Broussard, 96-1634 (La.App. 3 Cir. 5/21/97), 696 So.2d 88; Goodwyne v. People's Moss Gin, Inc., 96-1340 (La.App. 3 Cir. 4/30/97), 694 So.2d 1101, writ denied, 97-2041 (La.11/21/97), 703 So.2d 1309; Averna v. Industrial Fabrication and Marine Serv. Inc., 562 So.2d 1157 (La.App. 4 Cir.1990). The Sheriff contends that as a pipefitter, paid on an hourly basis, Jaymie would not have received much in the way of fringe benefits. However, Dr. Bernard Pettingill testified "ninety-nine (99%) percent of all companies pay some benefits." He estimated fringe benefits generally make up between fifteen (15%) percent to thirty-four (34%) percent of an employee's wages. Specifically considering Jaymie's particular job before the accident, Dr. Pettingill selected the bottom figure of fifteen (15%) percent as a fair factor to calculate his fringe benefit loss. Contrary to the Sheriff's assertions we do not find the trial court erred in including loss of fringe benefits in its award. And, we are convinced his overall calculation of Jaymie's lost earnings was not an abuse of discretion.
IV. Loss of Consortium
The trial court awarded $150,000 to Jennifer Edwards and $100,000 each to Janet Edwards and Jaymie Edwards, II, for loss of consortium. In making this award the trial court concluded that "for all practical purposes they have lost their dad."
Dr. Frank Lopez, a doctor of physical medicine and rehabilitation, testified regarding the deterioration in the father-child relationship between Jaymie and his minor offsprings. He stated in particular:
Q: So it would not surprise you if Mr. Edwards was unable to continue a relationship with his children ...
A: No. I wouldn't be surprised at all. He wouldn't be able to tolerate being beside the children. Plus, he would be harder to deal with than the children themselves.
Q: Jaymie would be harder to deal with than the children?
A: Yes, in that environment.
Q: I think you even described itlooking at my notes is a situation where the wife cannot take care of three children, and one child [Mr. Edwards] that does not understand anything.
A: Several of them are growing up and learning, and the other one [Mr. Edwards] who stays at the same level all the time.
*1140 The evidence revealed the relationship between Jaymie and his children has been irreparably damaged. In particular, Jennifer Edwards, who enjoyed a very close relationship with her father, has been especially affected by his condition. Dr. Richard Austin, a clinical psychologist who treated Jennifer, testified she suffered from depression, severe concentration problems and low self-esteem, all related to Jaymie's injuries. Dr. Austin felt as a result of their father's injuries, all three of the Edwards children, especially Jennifer, will experience continued emotional problems. We agree with the trial court, that for all practical purposes, these children have been deprived of their father. The defendants' argument that the trial court abused his discretion in making the loss of consortium awards is completely without merit.
SPHERE DRAKE'S POLICY LIMIT
The trial court entered judgment in favor of plaintiffs and against Sphere Drake in the amount of One Million Seven Hundred Fifty-Six Thousand Twenty-Two and 50/100 (1,756,022.50) Dollars, subject to Sphere Drake's policy limits. Plaintiffs argue the judgment rendered against Sphere Drake should be amended to award them Sphere Drake's policy limits of One Million ($1,000,000.00) Dollars. Sphere Drake argues its policy is an aggregate policy with a limit that steadily decreases as claims for payments from other Louisiana sheriffs are paid during the policy year. Thus, Sphere Drake contends any judgment against it must contain the wording: "subject to its policy limits."
The Sphere Drakes policy limits is One Million ($1,000,000.00) Dollars per claim, above self-insured retention levels of the Louisiana Sheriff's Risk Management Program. The policy covers sums "that the insured becomes legally obligated to pay as damages because of bodily injury ... caused by any person whilst acting within the course and scope of their employment by the insured."
Responding to plaintiffs' contention, Sphere Drake presented the testimony of Luther Mount, a claims adjuster for the Louisiana Sheriff's Risk Management Program, regarding certain alleged expenditures deducted from the policy limit during the relevant period. Mr. Mount testified that an individual associated with Sphere Drake informed him that approximately Seven Hundred Fifty Thousand ($750,000.00) Dollars of coverage remained on the policy issued by Sphere Drake to Sheriff McElveen. Plaintiffs objected to Mr. Mount's competency to testify, arguing he had no personal knowledge to render testimony regarding the policy amount available or remaining for satisfaction of the judgment against Sphere Drake. Sphere Drake offered no evidence, except Mount's estimation to prove the policy limit was less than $1,000,000.00.
Addressing plaintiffs' concern, the trial judge noted Lloyds of London, as the Sheriff's excess insurer, is obligated to pay "another million dollars" to satisfy the judgment. Counsel for Sphere Drake stipulated on the record that at least $750,000.00 of its policy limits was available to satisfy a portion of the $1,756,022.50 judgment against the Sheriff. The trial judge cautioned that he was "not going to allow the insurance company to go and write off costs to reduce that [$750,000.00]." If Sphere Drake fails to pay its policy obligation, the trial judge retains authority to enforce the judgment cast against it. We deem it premature to entertain plaintiffs' fear that Sphere Drake will not fully honor its contractual undertaking or that it will attempt to exhaust the available policy limit to avoid satisfying their claims. Plaintiffs are not without a remedy.
DECREE
For the foregoing reasons, we affirm the trial court's Judgment Notwithstanding the Verdict in all respects, except that portion affirming the jury's allocation of 32.5% fault against the Calcasieu Parish Sheriff and 67.5% fault against Edward Daugherty. We amend this portion of the judgment to harmonize the jury's fault assessment with the trial judge's and hereby cast the Sheriff with 55% fault and Daugherty with 45% fault. All costs of this appeal are assessed to defendants-appellants.
AFFIRMED, AS AMENDED.
NOTES
[1] Art. III, § 12(A) provides in pertinent part:
Prohibitions. Except as otherwise provided in this constitution, the legislature shall not pass a local or special law:
* * *
(3) concerning any civil or criminal actions...
[2] However, we also have said before conducting a de novo review, this court will accord deference to the factual findings of the judge and jury and attempt to harmonize inconsistent results. Felice v. Valleylab, Inc., 520 So.2d 920 (La.App. 3 Cir.1987), writ denied, 522 So.2d 562, 563 (La. 1988). See also Eppinette v. City of Monroe, 29,366 (La.App. 2 Cir. 6/20/97), 698 So.2d 658; Thornton v. Moran, 348 So.2d 79 (La.App. 1 Cir.), writ denied, 350 So.2d 897 (La.1977).
[3] We noted in Ourso, supra, at FN1, that the fourth circuit has criticized our reasoning, recommending in McCullough v. Regional Transit Authority, 593 So.2d 731 (La.App. 4 Cir.), writ denied, 595 So.2d 655 (La.1992) that appellate courts "make an independent evaluation of the record if the factual findings of the trial judge and the jury are inconsistent."
[4] Recognizing "the courts of appeal have adopted varying procedures for reconciling conflicting decisions by the jury and the judge in bifurcated trial," the Supreme Court nevertheless in Powell v. Regional Transit Authority, 96-715, p. 7 (La.6/18/97), 695 So.2d 1326, 1330, failed to reach the question of "whether to overrule [Thornton v. Moran, 348 So.2d 79 (La.App. 1 Cir.), writ denied, 350 So.2d 897 (La.1977)] mandate to reconcile conflicting decisions rather than to give due deference to each or of how to reconcile the decisions if it is necessary to do so." The second and fourth circuits have held the proper standard is a de novo review of the record, without according any weight or deference to the factual findings of the judge or jury. However, this circuit, joined by the first circuit, has adopted a different standard of review. Like the first circuit in Thornton, we too have sought to harmonize inconsistent judge and jury verdicts by examining both to determine which is more reasonable. Hasha v. Calcasieu Parish Police Jury, 94-705, (La.App. 3 Cir. 2/15/95), 651 So.2d 865; Hatcher v. State Department of Transportation and Development, 478 So.2d 774 (La.App. 3 Cir.), writ denied, 479 So.2d 923 (La.1985).
[5] As noted in Blair, 621 So.2d at 596, "La. R.S. 32:2 sets out the authority of the Department of Transportation and Development and states in pertinent part: ... `promulgate rules and regulations not inconsistent with this Chapter and the general laws relative to highways and their construction, maintenance, and use, and the operation of vehicles and pedestrians thereon ...' (emphasis added). La.R.S. 32:1(81) defines traffic to include pedestrians."
[6] Mr. Rooney Woodard's deposition was read to the jurors, after the judge revealed he passed away prior to trial.
[7] The defense directs our attention to the expert testimony of W.H. Bieck who stated all the police departments that he either worked for or was familiar with in the State of Texas recycled radio tapes. This may be so, but Louisiana's statutory requirements, to the extent they conflict with the "internal practices or customs" of the Calcasieu Parish Sheriff's Department, primes.
[8] The CAD reports, as we gather, are limited handwritten transcriptions of portions of the deputies' radio communication routed through five frequencies monitored by the Calcasieu Parish Sheriff's Department. The reports (logs) are styled "Daily Incident Calls" and reflect the date, time, reporting deputy, complainant, and location of an incident. As deputy Shannon Daughenbaugh explained in response to questioning:
Q. And so, I notice, thatand again I want to make sure I understand, what the log isthe log represents them calling and saying, `This is unit 5,' or whatever, and `I'm stopping to investigate an accident at Davis and Maguire,' or whatever, and so when he makes that call you or your people in the radio room write that down?
A. Correct.
Q. It's also being taped?
A. Correct.
Q. And then when unit 5 leaves, they call back in and they say, `I'm finished, I'm back on patrol.' And that gets logged?
A. Correct.
Q. That's the only thing that is on the logs, correct?
A. Correct.
Q. So, if they don't stop, and they drive through an accident scene or they're just patrolling around and they're not getting out or stopping or doing anything, they wouldn't call it in would they?
A. No.
[9] The defense also complains that the jury form was deficient because it supposedly combined the elements of cause-in-fact and risk-inclusion. Defendants argue "there should have been a separate question directed at [the cause-in-fact] issue alone." The defendants' argument, however, presents nothing for us to revieweven they admit the form complied with the requirements of La.Code Civ.P. art. 1812, though "barely" in their opinion.
[10] Although we have noted the occurrence of the third accident, while the ambulance was transporting Jaymie to the hospital, was hard to fathom, the second was not.
[11] Whether Donald Handy's alleged duty lessened his status as a rescuer also is not a question we need address.
[12] We also note the Sheriff filed a third party claim against Donald Handy; but he opted to dismiss this claim at the close of trial before submission to the jury. Further, on motion of Sphere Drake, Handy was deleted from the jury verdict form. The defendants' actions, thus, prevented the jury from considering any fault Handy may have had in causing the accident.
[13] In a footnote, Sphere Drake alleges it "submitted on November 13, 1996, on the eve of the then scheduled trial, a jury verdict form seeking allocation of fault to six different actors, including Handy, Simms and the Louisiana State Police; and an alternative form with the same six actors at another place on the form." But, for some "inexplicable" reason, Sphere Drake says, "this submission does not appear in the record." Yet, Sphere Drake did not seek by stipulation between the parties or by motion filed with the trial court to supplement the record with the alleged filings. We are prevented from considering its bare-boned allegation in brief which remains unsupported by the record evidence.
[14] The jury failed to award Jaymie any general damages. The trial judge found the jury's failure was clear legal error; and, he granted JNOV awarding Jaymie general damages, which included $400,000 for pain and suffering and $400,000 for loss of enjoyment of life. While Sphere Drake acknowledges the courts have held an award of special damages without a general damage award constitutes error, it posits that this rule's "pedigree may be doubtful." This may be so, but it is now well settled; and, we find no reason in this case to disturb it. We have said often when the jury commits this legal error, it is our responsibility to examine the record de novo and to enter the award accordingly. Sphere Drake's argument that we should take into account the jury's failure to make any award again urges us to override well settled jurisprudence. Finally, Sphere Drake's circuitous and rather confusing argument regarding the "loss of enjoyment of life" award may be fodder for thought, but it is totally without legal merit in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599329/ | 3 So.3d 1266 (2009)
MOSELEY
v.
STATE.
No. 5D08-2364.
District Court of Appeal of Florida, Fifth District.
February 23, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599421/ | 729 So.2d 446 (1999)
CECILE RESORT, LTD., etc., Appellant,
v.
David P. HOKANSON, Appellee.
No. 98-2213.
District Court of Appeal of Florida, Fifth District.
March 5, 1999.
Rehearing Denied April 5, 1999.
*447 Warren Kwavnick and Dennis R. O'Connor of Cooney, Mattson, Lance, Blackburn, Richards & O'Connor, P.A., Fort Lauderdale, for Appellant.
Ava F. Tunstall of McIntyre & Tunstall, P.A., Maitland, and Samuel P. King of Martinez, Dalton, Dellecker, Wilson & King, Orlando, for Appellee.
COBB, J.
Cecile Resort, Ltd., d/b/a The Residence Inn (Cecile Resort), appeals the final judgment entered by the trial court in favor of David Hokanson for damages sustained when Mr. Hokanson fell from a flag pole owned by Cecile Resort. We reverse because Cecile Resort is not liable for Mr. Hokanson's injuries as a matter of law.
Cecile Resort hired Mr. Hokanson, who owned and operated DJ's Home Improvements, to paint their flag pole. Mr. Hokanson climbed up the pole using a steel cable attached to the pole. The cable broke, and Mr. Hokanson fell to the ground sustaining serious injuries. Mr. Hokanson sued Cecile Resort alleging they were liable for his damages on the basis of premises liability and negligence, and a jury trial was held.
After Mr. Hokanson presented his case, Cecile Resort moved for a directed verdict arguing that it could not be held liable for Mr. Hokanson's injuries because he was an independent contractor and it did not participate in the work, or negligently approve or create a dangerous condition. The trial court summarily denied the motion for directed verdict without comment. Cecile Resort did not present any evidence, and the jury returned a verdict finding Cecile Resort 60% negligent and Mr. Hokanson 40% negligent.
A motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the nonmoving party. See American Motors Corp. v. Ellis, 403 So.2d 459, 467 (Fla. 5th DCA 1981), rev. denied, 415 So.2d 1359 (Fla.1982). "In considering a motion for directed verdict for the defendant, the court is required to evaluate the testimony in the light most favorable to the plaintiff and every reasonable inference deduced from the evidence must be indulged in plaintiffs favor." Id. This is the test used by the trial court as well as the standard of review on appeal. See Ritz v. Florida Patient's Compensation Fund, 436 So.2d 987, 989 (Fla. 5th DCA 1983), rev. denied, 450 So.2d 488 (Fla.1984).
Generally, "one who hires an independent contractor is not liable for injuries sustained by that contractor's employees in their work." Van Ness v. Independent Construction Co., 392 So.2d 1017, 1019 (Fla. 5th DCA), rev. denied, 402 So.2d 614 (Fla.1981) (citing Lake Parker Mall, Inc. v. Carson, 327 So.2d 121 (Fla. 2d DCA 1976), cert. denied, 344 So.2d 323 (Fla.1977)). Our supreme court identified exceptions to this rule as follows:
[T]he owner may be held liable if he has been actively participating in the construction to the extent that he directly influences the manner in which the work is performed. Conversely, if the owner is a passive nonparticipant, exercising no direct control over the project, he cannot be held liable. To impose liability upon an owner who is not an employer as defined by the statute [workers' compensation law], one or more specific identifiable acts of negligence, i.e., acts either negligently creating or negligently approving the dangerous condition resulting in the injury or death to the employee, must be established.
Conklin v. Cohen, 287 So.2d 56, 60 (Fla.1973). Accordingly, there are only two theories under which Cecile Resort could be liable: (1) it controlled the project; or (2) was guilty of specific and identifiable acts of negligence in *448 creating or approving a dangerous condition causing Mr. Hokanson's injuries.
First, to impose liability on an owner for a contractor's injuries, the extent of control must be such that the owner controls the methods of work.
`It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work his own way.'
Armenteros v. Baptist Hospital of Miami, Inc., 714 So.2d 518, 522 (Fla. 3d DCA 1998) (quoting RESTATEMENT (SECOND) OF TORTS § 414). In Armenteros, the Third District observed: "Reviewing the cases across the country considering this issue, the deciding question is who exercised control of the work, and thus was in the position to prevent the harm which occurred." 714 So.2d at 522.
As applied to the instant case, Mr. Hokanson did not present any evidence that Cecile Resort exercised control over his work. Even though Cecile Resort insisted that the work be completed the next day, that does not mean that they exercised any control over the project. See Clerkin v. Kendall Town & Country Associates, Ltd., 535 So.2d 288 (Fla. 3d DCA 1988) (holding that merely insisting that established time schedule be honored does not constitute participation in the project).
Second, our supreme court held in Hickory House, Inc. v. Brown, 77 So.2d 249, 253 (Fla.1955), that an owner owes a business visitor the duty
to use reasonable care in maintaining the premises in a reasonably safe condition and to ... give[ ] the plaintiff timely notice or warning of latent and concealed perils `known to the defendant, or which by the exercise of due care should have been known to him, and which were not known by plaintiff or which, by the exercise of due care, could not have been known to him.'
(quoting Hall v. Holland, 47 So.2d 889 (Fla. 1950)). In other words, "[t]here is a duty to warn employees of an independent contractor of potential danger when the owner has actual or constructive knowledge of a dangerous condition of his premises." Lake Parker Mall, Inc., 327 So.2d at 123.
However, this case is not predicated upon premises liability, as conceded by counsel at oral argument, but upon the assertion of active negligence by the agent of the defendant. Cecile Resort is not liable for Mr. Hokanson's injuries as a matter of law merely because he chose to use its cable to ascend the flagpole. See Bottom v. Rank, 70 So.2d 832, 833 (Fla.1954). Mr. Hokanson did not present any evidence indicating that Cecile Resort suggested that he use the cable. He admitted that he inspected "every bit" of the cable before he used it to ascend the flagpole and he didn't see any defects. Accordingly, if the defects were not apparent to Mr. Hokanson, then it is not reasonable to believe that they would have been apparent to Cecile Resort. In fact, Mr. Hokanson testified that Carl Stevens, the director of operations at Cecile Resort, told him that the last person who painted the flagpole used a rope and a bosun chair. Stevens did not object to his method and didn't respond when Mr. Hokanson showed him his materials. Accordingly, Cecile Resort is not guilty of any specific identifiable acts of negligence because they did not have actual or constructive knowledge of any alleged defect in the cable.
Therefore, Cecile Resort may not be held liable for Mr. Hokanson's injuries and the trial court erred in denying its motion for a directed verdict. Accordingly, we reverse the judgment and remand this case to the trial court with directions to enter a directed verdict in favor of Cecile Resort.
REVERSED
GRIFFIN, C.J. and THOMPSON, J., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/267586/ | 344 F.2d 260
UNITED STATES of America ex rel. Otis SWANSON, Appellant,v.Frederick G. REINCKE, Warden, Connecticut State Prison, Appellee.
No. 323, Docket 29262.
United States Court of Appeals Second Circuit.
Argued Feb. 16, 1965.Decided April 21, 1965.
Charles D. Gill, New Haven, Conn., for appellant.
John D. LaBelle, State's Atty. (George D. Stoughton, Harry W. Hultgren, Jr., Brandon J. Hickey, Asst. State's Attys.), for appellee.
Before WATERMAN, FRIENDLY and HAYS, Circuit Judges.
FRIENDLY, Circuit Judge:
1
On February 1, 1963, the State of Connecticut charged Otis Swanson with violation of 19-246 of its General Statutes (Revision of 1958 and Supplemental Laws),1 providing that:
2
'No person shall manufacture, possess, have under his control, sell, prescribe, dispense, compound, administer to himself or to another person or be addicted to the use of any narcotic drug, except as authorized in this chapter.'
3
The information also referred to 19-265, entitled 'Penalty for illegal possession or dispensing,' which provides that violation 'other than by administering to himself or by being addicted to the use of narcotic drugs' carries a fine or a minimum imprisonment of five years for the first offense and ten for the second, and a mandatory minimum imprisonment of fifteen years for any subsequent offense. Swanson, who was charged as a third offender, pleaded not guilty.
4
On May 9, 1963, the Superior Court authorized the State to withdraw the information and substitute one which, while again charging violation of 19-246, made reference not to 19-265 but to 19-265a. This section, entitled 'Penalty for self-administration or addiction,' provided that, with exceptions not here material, 'Any person who administers to himself or is addicted to the use of any narcotic drug * * * shall be imprisoned not more than five years, provided the court may commit the accused' to the custody of a probation officer or a hospital (shortly changed to the commissioner of mental health). The severe minima of 19-265 are thus inapplicable when the prosecutor concedes that 19-246 has been violated only by the conduct described in 19-265a. Swanson pleaded guilty to the substituted information, which charged self-administration of heroin and that alone. When he appeared for sentencing, the Public Defender sought a postponement until Swanson should receive permission he had requested to enter the United States Public Health Service Hospital at Lexington, Kentucky, although conceding that previously Swanson had obtained permission to enter Lexington but had not gone. The court denied the request, noting that Swanson had eleven prior convictions on drug charges and saying, 'Sometimes it is a meritorious situation and deserving of it, but I see no reason to defer sentence in this case based upon this man's record.' The judge sentenced Swanson to a prison term of not less than a year and a half nor more than four years; we take it that he is still confined.
5
A year later Swanson filed a Connecticut habeas corpus petition attacking the constitutionality of the Connecticut statute as applied to him. Having exhausted state procedures, he filed a petition for habeas corpus in the District Court alleging that 19-265a was unconstitutional under Robinson v. State of California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962). Judge Anderson appointed counsel and held a hearing. Counsel made no request to offer evidence on the extent of Swanson's addiction, and the only evidentiary material before us on this issue is the fact of his past narcotics convictions and a report of a physician who had treated Swanson on his arrest, which states that the latter 'was suffering from withdrawal symptoms characteristic of those manifested by a narcotic addict.' Judge Anderson denied the writ in a brief opinion, pointing out that Swanson pleaded guilty to self-administration of narcotics and not to addiction, but granted a certificate of probable cause and appointed counsel to represent Swanson on appeal.
6
Although it is somewhat of a surprise to see federal habeas corpus used to test the substantive constitutionality of a state criminal statute as distinguished from its common use in challenging procedures alleged to infringe federal rights, decisions of many years' standing appear to support the propriety of this. Ex parte Siebold, 100 U.S. 371, 25 L.Ed. 717 (1884) (federal statute); Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Crowley v. Christensen, 137 U.S. 86, 11 S.Ct. 13, 34 L.Ed. 620 (1890). While the writ seems to have been rarely employed for this purpose in recent times, it would be rather an understatement to say that the Supreme Court has not shown a disposition to shrink its scope. We likewise do not rest our decision on a procedural ground suggested by the State-- that Swanson's plea of guilty, given after consultation with counsel and directed to a lesser offense than that originally charged, should bar this collateral attack. The cases most nearly in point but by no means exactly so concern guilty pleas proper in other respects, such as right to counsel, but lodged after the police had obtained evidence in violation of constitutional rights; a number of circuits have said such guilty pleas are not subject to attack, Gonzalez v. United States, 210 F.2d 825 (1 Cir. 1954); Hall v. United States, 259 F.2d 430 (8 Cir. 1958), cert. denied, 359 U.S. 947, 79 S.Ct. 728, 3 L.Ed.2d 680 (1959), even when induced by that evidence, Watts v. United States, 107 U.S.App.D.C. 367, 278 F.2d 247 (1960); United States ex rel. Staples v. Pate, 332 F.2d 531 (7 Cir. 1964). But cf. United States ex rel. Vaughn v. LaVallee, 318 F.2d 499 (2 Cir. 1963) (dictum). Compare Commonwealth of Pennsylvania ex rel. Herman v. Claudy, 350 U.S. 116, 76 S.Ct. 223, 100 L.Ed. 126 (1956); Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716 (1940).2 The State has intimated that habeas corpus is even less appropriate in Swanson's case because it forwent an opportunity to try him on a different charge not possibly subject to constitutional infirmity. But we have been told only that Swanson was first charged with possession and control of narcotics, and while this is a 'separate and distinct' offense in Connecticut carrying a higher penalty than self-administration, State v. DaVila, 150 Conn. 1, 5, 183 A.2d 852, 854 (1962), we do not see, as will be developed below, that it stands differently as to constitutional attack on the part of an addict. In any event, it is unnecessary here to pursue the question when habeas corpus will lie after a voluntary plea of guilty entered after consultation with counsel, for we are satisfied that Swanson has not shown that the Connecticut statutes are unconstitutional as applied to him.
7
Although Swanson has characterized his attack as being upon 19-265a, the statute defining the crime is 19-246. Section 19-265a, like 19-265 with which it interlocks, simply specifies the measure of punishment for crimes previously defined. To the extent that the two sections prescribe different punishment for the same act, they provide a means for distinguishing at the prosecutorial level persons recognized to be deserving of greater or lesser penalties. This means was employed in Swanson's case, for the substituted information was an election by the prosecutor to assert violation of 19-246 only by self-administration, even though the same evidence would almost always support a conviction for possession and control and thus entail a larger sentence.
8
The DaVila opinion recognized that 'the validity of the part of 19-246 which makes addiction to narcotics a crime in and of itself is open to question' under Robinson v. California, see 150 Conn. at 5, 183 A.2d at 854, a question which we should suppose would likely be answered against the statute. But the fall of that provision does not necessarily carry in its train the condemnations of self-administration or of possession and control incident thereto which DaVila indicates are separable under state law. The California courts had been at some pains to make clear that Robinson could be convicted on proof only that he was in California and that he was addicted-- whether or not he had ever possessed or used narcotics in that state. 370 U.S. at 665-666, 678-679, 82 S.Ct. 1417 (concurring opinion of Mr. Justice Harlan). Passages in the opinion suggest that the constitutional infirmity lay in this very point of California's imposing a criminal penalty when an accused had done nothing save to be in the state in an addicted condition. 370 U.S. at 666-667, 82 S.Ct. 1417. But even if this be taken as only a makeweight and it be assumed arguendo that the Supreme Court would likewise condemn a statute limited to addiction acquired by unlawful use of narcotics within the state, the opinion repeatedly contrasts a 'status' or an 'illness,' which the state cannot constitutionally punish, with 'acts,' which it implicitly can. The Courtrecognized 'the broad power of a State to regulate the narcotic drugs traffic within its borders,' affirmed the power of a state to 'impose criminal sanctions' against unauthorized 'possession of narcotics within its borders,' 370 U.S. at 664, 82 S.Ct. at 1419-- without drawing an exception for addicts-- and emphasized that it was dealing 'only with an individual provision of a particularized local law as it has so far been interpreted by the California courts.' 370 U.S. at 668, 82 S.Ct. at 1421.
9
Even if the record had contained much more information concerning the nature and extent of Swanson's addiction than it does and had disclosed that no method of medical treatment was available,3 we would be loath to construe Robinson as condemning the provision of the Connecticut statute here in question. If a state cannot constitutionally make self-administration of narcotics by an addict a crime, even for a person who voluntarily became one, cf. Model Penal Code 2.08(4) (self-induced intoxication); 2.09(2) (duress caused by carelessness); contrast 370 U.S. 667 n. 9, 82 S.Ct. 1417 (addiction in newborn children), there would hardly be basis for a different view as to statutes punishing 'purchase,' 'possession,' 'transportation' or 'use' of the drug where these were solely preliminaries to self-administration by such an addict. On such a construction Robinson would require the courts to impose many exceptions both on state narcotics acts and on the familiar 21 U.S.C. 174, as well as on statutes condemning the purchase, possession, transportation or use of other addicting drugs or of alcohol.
10
We are unable to believe that a decision stated by the Supreme Court to be limited to 'a particularized local law as it has so far been interpreted' by the local courts was meant to prevent all state legislatures and Congress from determining, if they see fit, that the self-administration of narcotics or other noxious substances, and attendant purchase or possession, involve such dangers to their users, such potential of creating new addicts, and such other harmful social by-products, that proof of strong emotional or even of physiological compulsion shall not be a defense. We are well aware of the serious difference of opinion concerning the wisdom of antinarcotics legislation seemingly so harsh as Connecticut's. But the very lack of an agreed solution argues against judicial interposition rather than for it. If Connecticut's legislature, after full consideration, has decided that in order to stamp out the horrors of the narcotics traffic or to prevent its spread, it is desirable to attempt to deter actual and potential addicts by the knowledge of liability to imprisonment if they administer drugs to themselves, that is a choice the Constitution permits to be made 'in the insulated chambers afforded by the several States,' Truax v. Corrigan, 257 U.S. 312, 344, 42 S.Ct. 124, 134, 66 L.Ed. 254 (1921) (dissenting opinion of Mr. Justice Holmes). An inferior federal court should not reassume in this controversial area the mantle of judicial omniscience long since discarded as to social and economic legislation. See Rochin v. California, 342 U.S. 165, 168, 72 S.Ct. 205, 96 L.Ed. 183 (1952).
11
We realize that the Robinson opinion relied on the Eighth Amendment's prohibition of cruel and unusual punishment, held applicable to the states under the Fourteenth. But what was considered to have made the punishment in that case-- 90 days' confinement plus a two-year parole, 370 U.S. at 682, 82 S.Ct. 1417-- cruel and unusual, was not that the punishment was severe but that no crime had been committed. On that view 'even one day' would have been too much. 370 U.S. at 667, 82 S.Ct. 1417. If Connecticut can constitutionally make self-administration of narcotics a crime even for an addict, neither the provision of 19-265a permitting sentence up to five years nor the particular sentence imposed on Swanson was a cruel or unusual punishment. One need only read Mr. Justice McKenna's eloquent opinion in Weems v. United States, 217 U.S. 349, 365-367, 30 S.Ct. 544, 54 L.Ed. 793 (1910)-- the only other instance of Supreme Court condemnation of a prison sentence under the Eighth Amendment-- to realize how different this case is.
12
We wish to express our appreciation to Charles D. Gill, Esq., assigned counsel, for a fine brief and argument on Swanson's behalf.
13
Affirmed.
1
All section references will be to these statutes, as amended to February 1, 1963, the date of the violation, unless otherwise stated
2
Herman, by dicta, and Chambers, by implication, could well be taken as sanctioning collateral attack. But the issue in the first case was complicated by lack of counsel, and in the second case the state court itself permitted the collateral attack and the Supreme Court simply reviewed its decision on the substantive federal question
3
Five months after Swanson's arrest, Connecticut enacted legislation for the care of addicts expressly including a provision for voluntary treatment. See 19-268g, enacted by Conn.Pub.Acts 1964, No. 647. The law as it existed at Swanson's arrest is less easy to decipher from the statutes alone. See 17-185 | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1599297/ | 3 So. 3d 961 (2007)
EX PARTE JAMES COOPER
No. 1060395 (CR-05-1963).
Supreme Court of Alabama.
January 5, 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/1599295/ | 729 So. 2d 944 (1998)
Douglas SMITH, Thomas Brandon, et al., Petitioners,
v.
SANTA ROSA ISLAND AUTHORITY, and Gary Work Land Trust, Respondents.
No. 97-4624.
District Court of Appeal of Florida, First District.
August 25, 1998.
David A. Theriaque of David A. Theriaque, P.A., Tallahassee, for petitioner.
Mark J. Proctor of Levin, Middlebrooks, Thomas, Mitchell, Green, Echsner, Proctor & Papantonio, P.A., Pensacola; Donald E. Hemke and Stephen L. Walker of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Pensacola, for respondent Gary Work Land Trust.
Robert L. Crongeyer and Mary Jane Thies of Beggs & Lane, Pensacola, for respondent Santa Rosa Island Authority.
PER CURIAM.
Petitioners seek certiorari review of two orders of the circuit court sitting in its appellate *945 capacity, one denying a motion to disqualify and the other denying a petition for writ of certiorari to review a decision of the Santa Rosa Island Authority. Concluding that the circuit judge should have granted the motion to disqualify, we grant the petition for certiorari, vacate both orders, and remand for appointment of a new judge to hold further proceedings upon the petition for review of the decision of the authority.
In 1997, the Santa Rosa Island Authority (SRIA) conducted a quasi judicial hearing to consider an application of Gary Work Land Trust (GWLT), filed by Allen Levin d/b/a Island Resorts, for amendment of a lease option agreement to develop acreage on Pensacola Beach. Following the lengthy hearing, the SRIA board voted to approve GWLT's request, and a development lease agreement was thereafter executed. Petitioners sought review of the SRIA's decision by way of a petition for writ of certiorari filed with the circuit court.
At the outset of oral argument on the petition for writ of certiorari, conducted September 22, 1997, the circuit judge announced on the record:
I want all of the chips and the cards on the table.... I just want everybody to know, because you're not from hereI don't know you. I know most of theseveral other people. I know Mr. Levin. Mr. Levin was born and raised in Pensacola, and so was I. I know him. I know his brothers who are lawyers. Mr. Levin is not. .... I don'tbecause it is the type of case it is and we really don't get into a question of, as I understand it, credibility of witnesses, where we're going to be trying the case like, you know, from a credibility issue, it doesn't bother me too much. But if we had a situation coming in here where people were testifying that I knew and it comes down to credibility of who ran the red lightyou know what I meanI would have some problems with it.
I'll be honest with you. I've known Mr. Levin for a long time. I don't know anything about him bad or anything of that nature..... So if that's going to make a difference, I want you to know it.
* * * * * *
I had no ideaMr. Levin is probably further removed from me, quite candidly, than, for instance, Mr. Gray, who I've known ever since high school, quite honestly..... I just want to say that if that's going to create a problem, then it creates a problem. If it doesn't create a problem, then because we're not really getting into the credibility of witnesses, because they are parties and it's going to affect them, I think everybody should know that.
The judge then stated he would answer any questions from counsel regarding his knowledge of Mr. Levin, adding that he also personally knew attorney Boyles, who sat on the SRIA board. Counsel for petitioners inquired of the judge whether he felt comfortable "ruling on issues that involve millions of dollars one way or the other to the Levin family, directly to the Levin family, and to the Levin law firm." The judge responded that he frequently rendered decisions in cases handled by the Levin firm. The judge then added that he also knows attorney Gary Work. Following a recess during which counsel discussed the issue with those petitioners who were present at the hearing, counsel announced that his clients were concerned about the ability of the court to hear this matter in light of the long-term knowledge and history with the Levins in Pensacola. Counsel requested the judge to disqualify himself from reviewing the petition. Following further discussion, the judge clarified that he did not travel in the same social circles as Levin and his brothers, and stated that, with regard to rendering a decision that would impact Levin financially, "I don't have any particular heartburn either way about it." The judge reiterated that he would only have a problem deciding credibility issues. Following a renewed request for disqualification, the court orally ruled as follows:
I've made my disclosure. That's all I can do. I'm going to go ahead and hear the oral arguments. I'll give you an opportunity, Mr. Theriaque, to file a Motion for Recusal. Of course, you know and I know on a Motion for Recusal it's not to make a determination of the truth or the falsity of it, but it's whether or not it's legally sufficient. If it's legally sufficient, you know, *946 it's legally sufficient. If it's not legally sufficient, it's denied. If it is legally sufficient, it's granted. That's all I can say.
A written motion to disqualify was filed shortly thereafter. On November 5, 1997, over a month after oral argument, the court entered an order denying the motion to disqualify, finding it to be legally insufficient. On the same date, the court entered an order denying the petition for writ of certiorari.
Section 38.10, Florida Statutes, gives litigants the substantive right to seek disqualification of a judge. Rule 2.160, Florida Rules of Judicial Administration, sets forth the procedure to be followed in the disqualification process. Respondents, urging that this rule and statutory provision and related case law are applicable only to judges sitting in their capacities as trial judges, argue that the disqualification of an appellate judge is a matter which rests largely within the sound discretion of the judge involved. However, rule 2.160(a), although entitled "Disqualification of Trial Judges," provides clearly that the rule applies to "county and circuit judges in all matters in all divisions of court." (Emphasis added.) As such, we find the rule applicable to a circuit judge considering a petition for writ of certiorari to review a decision of a county agency following a quasi-judicial hearing.
Thus, the task before us on appeal from the denial of the motion to disqualify is to determine the legal sufficiency of the motion based on whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial proceeding. Hayes v. State, 686 So. 2d 694, 695 (Fla. 4th DCA 1996), rev. dismissed, 691 So. 2d 1081 (Fla.1997). In this regard, we apply the test to be used in reviewing a motion for disqualification, as set out by the supreme court in MacKenzie v. Super Kids Bargain Store, Inc., 565 So. 2d 1332 (Fla. 1990). The court held that the facts alleged in a motion to disqualify need only show a movant's well-grounded fear that the movant will not receive a fair trial. Id. at 1334. In determining whether the allegations are sufficient, the facts must be taken as true and must be viewed from the movant's perspective. Id. Whenever an allegation is raised which questions the judge's neutrality as to one of the parties, the judge can only pass on the legal sufficiency of the allegation; if it is legally sufficient, the trial judge must grant the motion and proceed no further. Id. at 1339.
Herein, the written motion to disqualify alleged that the judge's disclosure at the beginning of oral argument established that he has extensive personal knowledge of the Levin family and law firm, that he is familiar with Gary Work for whom GWLT is named, that he also knows Mr. Boyles whose failure to recuse himself from the SRIA board was the basis for one of the legal arguments raised in the petition for writ of certiorari, and that he admitted that he would be uncomfortable making credibility determinations regarding certain members of the Levin family. It was also alleged that the record clearly established that members of the Levin family and law firm have a personal financial stake in the outcome of the litigation, that Fred Levin owns 27% of GWLT, that Allan Levin owns 11% of GWLT, and that two pension plans for the Levin firm own 7% of GWLT. Finally, it was alleged that these facts established grounds for a reasonable fear that the judge should not hear the matter.
Respondents assert that the allegations that the judge "had extensive personal knowledge of the Levin family and the Levin law firm" and that he was "familiar with Gary Work" and that he "knew" Mr. Boyles, are not enough to prompt a reasonably prudent person to fear that he could not get a fair and impartial hearing. We agree that allegations of mere "friendship" with an attorney or an interested party have been deemed insufficient to disqualify a judge. See e.g., MacKenzie, supra at 1338 (allegations of friendship, member of same church, neighbors, former classmates, are legally insufficient to show that a judge is biased in favor of a litigant); Adkins v. Winkler, 592 So. 2d 357, 360 (Fla. 1st DCA 1992)(fact that judge had longstanding relationship with attorney legally insufficient for recusal). The allegations in this case, however, involve something more. The judge specifically acknowledged *947 that he would be uncomfortable making credibility determinations regarding certain members of the Levin family. Although it does not appear to us that the outcome of the proceedings below in any way rested upon the credibility of any of the individuals involved, we nevertheless are compelled to conclude that the judge's comments were sufficient to lead a reasonably prudent person to believe that other rulings might be affected by his admission, and hence, to fear that the proceedings would not be entirely fair and impartial. Cf. Fogan v. Fogan, 706 So. 2d 382 (Fla. 4th DCA 1998)(granting petition for writ of prohibition upon a finding that judge should have granted motion to disqualify in dissolution proceeding where his statement that he could not punish either of the parties if there were grounds to do so amounted to an admission that he could not be fair and impartial). It is not a question of how the judge feels; it is a question of what feeling resides in the movant's mind, and the basis of such a feeling. See State ex rel. Morgan v. Baird, 660 So. 2d 328, 330 (Fla. 2d DCA 1995). The judge herein, after admitting he would have difficulty ruling on matters of credibility with regard to certain individuals having a stake in the outcome of the case, under an abundance of caution should have disqualified himself after being requested to do so.
Accordingly, we grant the petition for writ of certiorari, reverse the order denying the motion to disqualify, vacate the order upholding the decision of the authority, and remand with instructions that the petition for writ of certiorari to review the decision of the SRIA be assigned to a different judge.[1]
ALLEN and WOLF, JJ., and SMITH, LARRY G., Senior Judge, concur.
NOTES
[1] In light of our disposition herein, we need not reach the merits of the order denying the petition for writ of certiorari. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737206/ | 557 S.W.2d 920 (1977)
W & O CONSTRUCTION CO., INC., Appellant-Plaintiff,
v.
CITY OF SMITHVILLE, Appellee-Defendant.
Supreme Court of Tennessee.
November 21, 1977.
T. Eugene Jared, Cookeville (Cameron & Jared, Cookeville, of counsel), for appellant-plaintiff.
McAllen Foutch, Smithville, for appellee-defendant.
OPINION
HARBISON, Justice.
This suit was brought by a contractor to recover extra costs for rock removal under *921 a building contract with the City of Smithville for the erection of a waste water treatment plant. The Chancellor sustained a motion of the defendant to strike a number of documents exhibited to the complaint and also sustained a motion to dismiss for failure to state a claim upon which relief could be granted. Plaintiff has assigned error to these rulings.
After the case had been briefed and orally argued in this Court, plaintiff tendered a detailed amendment to its complaint, seeking to add a number of material factual allegations and to establish a claim of waiver or estoppel with respect to the controlling contract provisions. Neither waiver nor estoppel was plead in the original complaint, nor were facts alleged tending to establish either of these theories.
There is authority for amending pleadings in an appellate court in order to correct technical or formal errors, such as the proper capacity of a party or the designation of a pleading. See Royal Indemnity Company v. Schmid, 225 Tenn. 610, 474 S.W.2d 647 (1971); American National Ins. Co. v. Thompson, 44 Tenn. App. 627, 316 S.W.2d 52 (1957). Parties may not ordinarily amend pleadings in an appellate court, however, to set up new claims or defenses of a substantive nature, particularly where no application for amendment was made in the trial court. See McEwen v. Gillespie, 71 Tenn. 204 (1879); Fogg v. Union Bank, 63 Tenn. 539 (1874); Loftis v. Stuyvesant Ins. Co., 54 Tenn. App. 371, 390 S.W.2d 722 (1965).
The record in the present case shows that suit was filed on March 12, 1976. Motion of the defendant to strike certain exhibits and to dismiss was filed November 18, 1976. Final judgment on these motions was entered on March 29, 1977. At no time, either prior to or subsequent to the ruling of the trial judge on these motions, does it appear that any amendment to the complaint was offered, despite the fact that the sufficiency of its allegations was directly challenged. Accordingly, we are of the opinion that the motion to amend here, at this stage of the proceedings, to add material factual allegations and theories of recovery is not well taken and should be denied. In reviewing the action of the trial judge, we must consider the complaint as it was presented to him on motion to dismiss. So viewing it, we are of the opinion that his rulings were correct.
This case involved a public works contract, which was let on competitive bidding. On its face, the contract shows that the work was funded in part by grants from a number of federal agencies and from the state. It was bid by plaintiff on a lumpsum basis, not by unit prices or on a cost-plus arrangement. Plaintiff alleged that it was an experienced and well-qualified contractor, having built or enlarged a number of similar sewage treatment plants in the Middle Tennessee area. Exhibited to the complaint were the contract documents and the detailed specifications. Since these represented the foundation of the suit, their provisions were incorporated into and became part of the pleadings and could properly be relied upon by both parties. Rule 10.03 T.R.C.P.
The complaint alleged that in excavating the construction site plaintiff encountered a large quantity of rock which had been unanticipated, and which plaintiff had been led to believe did not exist because of some core drillings done by an engineering firm prior to the letting of bids. The project engineer called attention to these core drillings in the instructions to bidders, but it is clear from the plans and specifications that ultimate responsibility for subsurface conditions rested upon the contractor, not upon the owner or the project engineer.
In the original complaint, plaintiff claimed a breach of paragraph 21 of the General Conditions, which provided that if materially different subsurface conditions were found from those shown on the plans or specifications, the contractor should give notice to the project engineer before the *922 conditions were disturbed. The contract provided that the engineer would investigate the conditions, and that if he found that these so warranted, he would make appropriate changes in the plans or specifications. Any increase or decrease in cost was to be adjusted as provided in paragraph 17 of the General Conditions. The latter paragraph set out methods of computing additional costs but expressly provided that changes in the work were not authorized without express written approval from the owner.
Paragraph 22 of the General Conditions also disallowed claims for extra work or costs unless done pursuant to written order of the architect, approved by the owner.
No such written order, either prior or subsequent to the removal of rock, was alleged in the complaint, nor were there any allegations that this requirement was waived or that the owner was estopped to rely upon the contract provisions.
Generally such provisions in building contracts are valid and binding according to their terms. See Bannon v. Jackson, 121 Tenn. 381, 117 S.W. 504 (1908). Such provisions, of course, may be altered, abrogated or waived, but facts showing such modifications must be alleged. See 13 Am.Jur.2d, Building and Construction Contracts §§ 22-25; Annot., 2 A.L.R. 3d 620 (1965) (private building contracts); Annot., 1 A.L.R. 3d 1273 (1965) (public contracts).
The original complaint alleged that the engineer and owner were notified of the additional rock which had been encountered by plaintiff, but at no point is there any allegation that additional compensation was authorized or agreed upon. Plaintiff apparently performed the contract, was paid the agreed price, and, according to its complaint, only claimed a breach because of non-compliance with paragraph 21 of the General Conditions, above referred to. The complaint alleged that written notice was given to the project engineer. In addition plaintiff sought to attach to the complaint, without explanation or elaboration, some fifteen letters which passed between plaintiff, the engineer and some of the federal funding agencies over a period from July 1973 to January 1976. It was these letters which were stricken by the trial judge, because the facts which they purported to show were nowhere stated in the complaint, nor were these the documents upon which the claim was founded under Rule 10, T.R.C.P. The complaint merely stated that these documents were "material" to the rock encountered and to the notice given.
We are of the opinion that the trial judge correctly sustained the motion to strike these documents. Rule 8.01 requires that the facts upon which a claim for relief is founded must be stated, and this cannot be done simply by exhibiting a series of correspondence without elaboration or comment. The fact that notice was given and that rock was encountered had already been alleged in the complaint, and if these exhibits were material only to support those allegations, they were unnecessary and redundant. See Rule 12.06, T.R.C.P.
In addition to suing for breach of paragraph 21, however, plaintiff, in a concluding paragraph to the complaint, listed, without elaboration or statement of any factual basis, several other theories of relief, these being subsequent parol amendment to the contract, implied contract, quantum meruit and unjust enrichment. In its appeal brief, plaintiff claims that the foundation for at least some of these additional theories was contained in the exhibited correspondence. Again, however, the manner in which the correspondence purported to show a basis for such claims is nowhere stated in the complaint, and a mere listing of a series of theories of recovery does not, in and of itself, state a cause of action.
Although we are satisfied that the trial judge correctly sustained defendant's motion to strike this correspondence, we have examined the contents thereof. It affirmatively *923 shows that no written change order was ever authorized by the owner, or by the federal funding agencies, and that no agreement was ever made by the owner or by any responsible funding agency to compensate the plaintiff for the removal of rock. Indeed, on at least two occasions, officials of the funding agencies pointed out the failure of the contractor to comply with the contract provisions under which a change order might have been obtained and additional compensation authorized.
With or without the stricken material, we are of the opinion that the complaint fails to state a breach of contract in that it fails to show that any written change order was ever obtained, nor are there any facts alleged showing waiver, modification or abrogation of this express contract requirement with which an experienced building contractor, such as plaintiff, must have been familiar.
The judgment of the trial court is affirmed at the cost of appellant.
COOPER, C.J., and FONES, HENRY and BROCK, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599358/ | 729 So.2d 232 (1998)
Harold Lee HENLEY
v.
STATE of Mississippi.
No. 97-KA-00782-SCT.
Supreme Court of Mississippi.
December 10, 1998.
*234 Donna Sue Smith, Columbus, Attorney for Appellant.
Office of the Attorney General by Wayne Snuggs, Attorney for Appellee.
EN BANC.
WALLER, Justice, for the Court:
INTRODUCTION
¶ 1. Harold Lee Henley was indicted by the Lowndes County Grand Jury for grand larceny, aggravated assault, and attempted rape. Henley was tried before a jury and convicted of all counts. He was sentenced to 5 years for grand larceny, 8 years for attempted rape, and 18 years for the aggravated assault with all sentences to run consecutively. The Lowndes County Circuit Court, Honorable John M. Montgomery, denied Henley's motion for a J.N.O.V. or, alternatively, a new trial. Henley appeals to this Court and assigns the following as error:
I. THE CIRCUIT COURT ERRED IN ALLOWING HAROLD HENLEY TO ACT PRO SE WHEN HE ADVISED THE COURT THAT HE NEVER "REQUESTED TO PROCEED WITHOUT A LAWYER."
II. THE CIRCUIT COURT ERRED IN OVERRULING THE DEFEDANT'S MOTION FOR J.N.O.V. OR, ALTERNATIVELY, FOR A NEW TRIAL ON THE GRAND LARCENY COUNT OF THE INDICTMENT.
III. THE CIRCUIT COURT ERRED IN DISALLOWING THE DEFEDANT'S CHALLENGE TO VENIRE PANELIST NUMBER 19.
IV. ATTORNEY ROBERT PRATHER PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL TO THE DEFENDANT AND THIS INEFFECTIVE REPRESENTATION SERIOUSLY PREJUDICED HAROLD HENLEY'S DEFENSE.
STATEMENT OF THE FACTS
¶ 2. On the evening of May 17, 1996, Martha Fields ("Fields") was walking on Eleventh Street in Columbus, Mississippi. Harold Henley ("Henley"), who was driving around looking for some crack to smoke, stopped Fields. Fields and Henley knew each other, as they had met at Alcoholics Anonymous sometime before. It is undisputed that Henley and Fields went back to Henley's house. Their stories diverge as to the purpose of the visit and the events which transpired once they arrived.
¶ 3. Fields testified that Henley asked her to go to his house and she thought it was alright because they were good friends. *235 Once they arrived, Henley started asking her for sex, but she refused. After she refused his sexual advances, Fields testified that Henley placed something against the door so that she could not get out. Fields and Henley, who, according to Fields, had a Jack Daniels bottle in his hand, started fighting inside the house. Henley punched Fields in the eye and knocked her unconscious. When she came to, Henley was wiping her face with a rag. Fields tried to escape by breaking the window but was unsuccessful. She testified that Henley then tore her jumpsuit and panties off. On cross examination, Fields said that she took her jumpsuit off because Henley was holding a beer bottle to her head.
¶ 4. Fields testified that Henley, who had taken his own clothes off, was on top of her trying to force her to perform oral sex on him. Henley was armed with knife, and according to Fields, made numerous cuts on her hands, arms, neck, and shoulders. As Henley was sitting on top Fields, holding her down, she reached and grabbed Henley by his testicles. After Fields gained control over Henley, she guided him over to the door and she ran out naked. After the police arrived on the scene, Fields was carried to the emergency room by ambulance where she received treatment and was released.
¶ 5. Henley's version of the events is drastically different from Fields' testimony. Henley testified that he was driving around looking for crack cocaine when he saw Fields walking along the street. He said that he knew her from AA and Narcotics Anonymous meetings. After picking Fields up, they rode around and purchased some crack cocaine from a guy named Shay. According to Henley, Fields agreed to give him sex in exchange for some of the crack cocaine.
¶ 6. The two then went to Henley's house to complete their alleged deal. Once there, Henley testified that Fields performed fellatio on him, but she refused to have sex with him unless he gave her some crack. Henley claims that after taking a hit of crack, Fields took her clothes off, but refused to consummate their deal. After that, a struggle ensued between the two.
¶ 7. Henley admitted that he hit Fields and tried to wipe her injury with a rag. However, he said that Fields removed her clothes herself. He said that he became inflamed with passion from the drugs and was angry when she reneged on her prior agreement to have sex. He admitted to threatening Fields with the knife but denies that he cut her. Henley said that Fields just walked out without her clothes on, and that the struggle lasted 30 minutes as opposed to three hours.
¶ 8. Donald Richardson, a Columbus Police Officer, responded to the 911 call concerning an attempted rape. Upon arrival, he saw Fields running naked to a house. After someone gave her a blanket, Richardson attempted to calm her down and obtain a statement from her. Richardson observed that multiple injuries had been inflicted upon Fields' person. She had a cut underneath her left arm, a deep cut above her eye, and a deep cut under her breast.
¶ 9. Richardson and several other officers went to Henley's home. Upon arrival they noticed that the back door was open and the house was dark.[1] Believing the suspect to still be inside, the officers proceeded to search the house. Henley was not there. The officers noticed, in addition to the house being in a total state of disarray, that there was blood on the carpet, mattress, and walls inside the house.
¶ 10. After Fields had left the house but before the police arrived there, Henley had panicked and also left. Despite having his own truck, Henley stole a truck that had the keys in it from down the street. He drove to Bartlett, Tennessee, where he was pulled over by a police officer. The officer ran a check on the truck's tag number and found out it was stolen. Henley was arrested and detained in Tennessee.
¶ 11. A search warrant was executed on Henley's home the next day. The officers were looking for Fields' clothing and the hook-billed knife that was used in the attack. The officers did not find any female clothing[2]*236 but did find the knife along with blood on the carpet, walls, and mattress. Pieces of the carpet, a piece of the mattress, the knife, a shirt, and some swabs retrieved from Henley's house all tested positive for the presence of human blood. However, no test was performed on these items to determine whether the blood belonged to Fields.
I. THE CIRCUIT COURT ERRED IN ALLOWING HAROLD HENLEY TO ACT PRO SE WHEN HE ADVISED THE COURT THAT HE NEVER "REQUESTED TO PROCEED WITHOUT A LAWYER."
¶ 12. After completion of the first day of a two day trial, Henley expressed to the judge his unhappiness with his lawyer, Robert Prather ("Prather"), now deceased.[3] Outside the presence of the jury, and with Prather, the prosecutor, and the judge present, Henley expressed his complaints to the court. He claimed that his lawyer had been hostile to him by not talking to him on the telephone and that Prather had spent less than ten minutes with him preparing for his case. Prather was asked by the court if he had anything to put in the record. After Henley had made his complaints to the trial judge, the following exchange occurred:
THE COURT: All right, Mr. Prather, do you care to place anything in the record?
Mr. Prather: Your Honor, the only thing I would do is move now to be allowed to withdraw since he has accused me of being ineffectual assistance of counsel,...
Later, Prather did tell the judge that he had hung up on Henley because he was in the shower and it was his policy not to accept public defender calls at his home. Despite Henley's contentions of conflict between himself and Prather, his primary complaint was that Prather did not cross-examine the victim extensively enough. He claimed that Fields was lying and he did not want to go to prison without having the chance to address the statements of Fields.
¶ 13. A criminal defendant has the right to be heard by himself or counsel or both. Miss. Const. art. 3, § 26. A refusal by the trial court to permit the defendant to argue his case is a violation of his constitutional rights and requires reversal. Gray v. State, 351 So.2d 1342, 1345 (Miss.1977).
¶ 14. Recently, this court has turned to a "hybrid representation" in an effort to strike a balance between the right to counsel and the right to self-representation. Metcalf v. State, 629 So.2d 558, 562 (Miss.1993). Hybrid representation encompasses both the participation of the criminal defendant in the course of the trial when he has not effectively waived his right to assistance of counsel, and the participation by an attorney when the defendant is proceeding pro se. Id. There is no absolute right to hybrid representation, and whether to allow hybrid representation lies in the discretion of the trial court. Id. at 563.
¶ 15. In the case sub judice, the trial judge explained to Henley that he was entitled to an effective lawyer, but not to the lawyer of his choice. The judge told Henley that he could proceed pro se and that he could participate in his trial by asking the witnesses questions and still have Mr. Prather present as advisor. Henley responded, "Absolutely, your Honor, absolutely."
¶ 16. Before court began the next morning, the trial judge again questioned Henley on whether he wanted to proceed pro se. Henley stated that he did not wish to represent himself, but he felt like he (Prather) was not acting in his best interest. Henley stated that if forced to represent himself, he would do the best he could. The trial judge replied that Henley was not being forced to represent himself and then inquired as to educational background. Henley answered that he had received approximately one year of college and attended trade schools and a theology seminary, but had no experience in the criminal justice system.
¶ 17. The trial judge found that he was not competent to represent himself. The judge then went into a lengthy explanation of the *237 criminal justice system, the seriousness of the charges against Henley, the advantages of having a lawyer present, and some rules and procedures of the trial system. Henley then asked the judge if he could put Prather on the stand and ask him some questions. The judge said that he would not allow that, and Henley responded that he did not want Prather to represent him. Shortly thereafter, Henley restated his desire to proceed without Prather. The judge then allowed Henley to represent himself and ordered Prather to remain in the courtroom as an advisor.
¶ 18. Although the record indicates that Henley never waived his right to counsel, it is clear that he did not want to proceed with Prather as his counsel. Henley's desire was for the trial court to appoint another lawyer to represent him, which would have led to an extensive delay in Henley's trial.[4] Indigent criminal defendants, such as Henley, are not entitled to counsel of their own choosing, but only to reasonably effective assistance of counsel. Johnson v. State, 476 So.2d 1195, 1204 (Miss.1985).
¶ 19. Admittedly, Henley has the right to proceed without counsel and to refuse the representation of counsel appointed to him. Curlee v. State, 437 So.2d 1, 2 (Miss.1983). However, Henley cannot use this right to play "cat and mouse" games with the court, nor can he "seek to place the trial judge in a position where, in moving along the business of the court, the judge appears to be arbitrarily depriving him of counsel." Evans v. State, 273 So.2d 495, 499 (Miss.1973)(quoting United States v. McMann, 386 F.2d 611, 618-19 (2nd Cir. 1967)).
¶ 20. Like the defendant in Metcalf, Henley argues that he never effectively requested that he be allowed to represent himself. The record reveals that Henley expressed an absolute desire to conduct, at least part, of his own defense. Recognizing that Henley had not fully waived his right to counsel, the trial judge granted Henley's wish to participate in his trial, and ordered Prather to remain as standby or advisory counsel. In effect, Henley was afforded the type of "hybrid" representation that this Court has approved of previously. See, e.g., Metcalf, 629 So.2d at 564-65 and Dunn v. State, 693 So.2d 1333, 1341-43 (Miss.1997). Henley questioned two of the State's witnesses, made his own closing argument, took the stand in his own defense, while Prather questioned him from a list of questions prepared by Henley, and participated in the jury instruction process.
¶ 21. The dissent asserts that the trial judge conducted "no real hearing and made no findings." As noted supra, the record belies this conclusion. The conversation between the judge and Henley covers seventeen pages in the record. On two separate occasions Henley was given ample opportunity to bring to the trial court's attention his complaints with Prather. Although not designated as a formal hearing, it is clear that Henley was afforded the equivalent of a hearing on his complaints. A fair reading of the record reveals Henley's dissatisfaction with Prather concerned the cross-examination of Fields rather than any personal conflict between the two. The trial court explicitly found that Prather was a competent lawyer and the record supports the determination that Prather was performing in a competent manner at this point in the trial. In fact, Henley even thanked Prather during his narrative given at the sentencing hearing.
¶ 22. Apparently the dissent would force the trial judge to put counsel on the stand and allow the defendant to question him. Not only is there no persuasive precedent for this position, but such a procedure would virtually put the trial court at the mercy of the defendant. Defendants throughout the state would immediately develop personal conflicts with their lawyers during the middle of trial in an effort to delay a possible unfavorable verdict and a stint in prison.
¶ 23. This assignment of error is without merit. The trial judge was confronted with a indigent defendant who, in the middle of *238 trial, wanted counsel other than his appointed counsel, to represent him and who expressed a desire to conduct, at least part of, his own defense. With respect to a hearing, the trial judge afforded Henley more than ample opportunity to express his objections to continuing with Prather as his counsel. It is implicit that the trial judge found the personal conflict, assuming one existed, to have no bearing on Prather's ability to provide a competent defense for Henley. The trial judge opted to utilize the sort of "hybrid" representation that this Court has approved of on prior occasions. Under the circumstances, we cannot say that the trial judge abused his discretion in employing a "hybrid" representation in this case.
II. THE CIRCUIT COURT ERRED IN OVERRULING THE DEFEDANT'S MOTION FOR J.N.O.V. OR, ALTERNATIVELY, FOR A NEW TRIAL ON THE GRAND LARCENY COUNT OF THE INDICTMENT.
¶ 24. Henley argues that, since the State failed to put on any proof as to the value of the truck, this Court should reverse and render his conviction for grand larceny. The State, while admitting that no proof was offered as to the value of the truck, argues that Henley waived this issue when he failed to make a motion for a directed verdict.
¶ 25. Count I of the indictment charged Henley with stealing a 1985 red Dodge pick-up truck with a total value of over $250 belonging to Roger Dawkins. "Every person who shall be convicted of taking and carrying away, feloniously, the personal property of another, of the value of Two Hundred Fifty Dollars ($250.00) or more, shall be guilty of grand larceny." Miss.Code Ann. § 97-17-41(1)(1994).[5] At trial, there was no proof as to the value of the truck, or whether Henley had stolen a motor vehicle on a previous occasion. Without any evidence as to the value of the truck, the State has failed to meet its burden of proof as to one of the elements of grand larceny and conviction of same cannot be upheld.
¶ 26. The State's argument that Henley waived this assignment of error when he failed to move for a directed verdict at the close of the State's case is without merit. The record reveals that, after the State rested, the court asked Prather to advise Henley of any motions. After consulting with Prather, Henley, himself, moved the court to bring Fields back to the stand for more cross-examination and to subpoena several witnesses. Despite the insufficiency of the evidence, Henley failed to move for a directed verdict as to the count of grand larceny.
¶ 27. Henley did request a peremptory instruction and he raised the specific issue of lack of evidence on the value of the truck in his motion for J.N.O.V. or, alternatively, a new trial. The general rule is that a defendant who moves for a directed verdict at the close of the State's case-in-chief and then proceeds to present evidence in his own behalf, but fails to renew his motion for a directed verdict at the close of all the evidence, waives any assignment of error in the trial court's refusal to grant his directed verdict motion. Warren v. State, 709 So.2d 415, 418 (Miss.1998). A defendant who offers evidence of his own does not waive the right to challenge the sufficiency or weight of the evidence in the event of an adverse jury verdict. Wetz v. State, 503 So.2d 803, 808 n. 3 (Miss.1987). Henley could raise the issue either at the close of the State's case-in-chief, at the close of the evidence, through a peremptory instruction, or in a motion for J.N.O.V. or new trial. See Holland v. State, 656 So.2d 1192, 1197 (Miss.1995). Thus, this issue is properly before this Court.
¶ 28. Because there is simply no evidence in the record as to the value of the truck, Henley's conviction for grand larceny cannot stand. However, petit larceny is a lesser included offense of grand larceny. See Miss. Code Ann. § 97-17-43 (1994). This Court has a long line of cases employing the direct remand rule, which does not require a new *239 trial but merely remands to the lower court for sentencing of the lesser included offense. See generally Yates v. State, 685 So.2d 715, 720-21 (Miss.1996); Alford v. State, 656 So.2d 1186 (Miss.1995); Clemons v. State, 473 So.2d 943 (Miss.1985); Biles v. State, 338 So.2d 1004 (Miss.1976).
¶ 29. In the case sub judice, Henley admitted to taking the truck and driving it to Bartlett, Tennessee. Guided by our previous cases and finding the evidence sufficient to support a conviction of petit larceny, Henley's conviction of grand larceny is reversed and this case is remanded to the lower court for sentencing on the charge of petit larceny.
III. THE CIRCUIT COURT ERRED IN DISALLOWING THE DEFENDANT'S CHALLENGE TO VENIRE PANELIST NUMBER 19.
¶ 30. On review, the trial court's determinations under Batson are afforded great deference because they are, in large part, based on credibility. Coleman v. State, 697 So.2d 777, 785 (Miss.1997). This Court will not reverse any factual findings relating to a Batson challenge unless they are clearly erroneous. Id.
¶ 31. A party's peremptory challenge must pass constitutional muster. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Batson protection has since been extended to civil trials, to strikes exercised by the defense, and to discriminatory strikes based on gender. See Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (Batson extended to civil context); Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (extending Batson to strikes exercised by criminal defendant); J.E.B. v. Alabama, 511 U.S. 127, 141, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) (applying Batson to gender).
¶ 32. To determine whether a party improperly used a peremptory challenge to discriminate against a potential juror, the objecting party [opponent] must first make a prima facie showing of discrimination that race was the criteria for the exercise of challenge. Stewart v. State, 662 So.2d 552, 557-58 (Miss.1995). The burden then shifts to the party exercising the challenge [proponent] to offer a nondiscriminatory reason for its strike. Id. It is then left to the trial court to determine whether the objecting party has met its burden to prove there has been purposeful discrimination in exercise of the challenge. Id. We consider each prong of the Batson test separately.
A. The Prima Facie Case
¶ 33. Traditionally, a prima facie showing of discrimination required that the opponent of the strike show:
1. That he is a member of a "cognizable racial group";
2. That the proponent has exercised peremptory challenges toward the elimination of veniremen of his race; and
3. That facts and circumstances raised an inference that the proponent used his peremptory challenges for the purpose of striking minorities.
Batson, 476 U.S. at 96, 106 S.Ct. 1712.
¶ 34. This test has been modified somewhat by the Supreme Court's decision in Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). There, the Court held that Powers, a white, had standing to challenge the exclusion of black jurors on the grounds that the equal protection right of the juror to serve was protected by Batson. Powers, 499 U.S. at 406, 111 S.Ct. 1364. Essentially, this means that step three above becomes the pivotal inquiry to determine a prima facie case. See Davis v. State, 660 So.2d 1228, 1240 (Miss.1995). The decisive question is whether the opponent of the strike has met the burden of showing that the proponent has engaged in a pattern of strikes based on race or gender, or in other words "the totality of the relevant facts gives rise to an inference of discriminatory purpose." Batson, 476 U.S. at 94, 106 S.Ct. 1712.
¶ 35. The State made a reverse Batson challenge due to the fact that Henley had used his first three peremptory challenges to strike three white females. This Court has examined the number of strikes on a particular class, the ultimate ethnic or gender makeup of the jury, the nature of questions asked *240 during voir dire, and the overall demeanor of the attorney. See Coleman v. State, 697 So.2d 777, 786 (Miss.1997); Davis, 660 So.2d at 1263 (Banks, J., concurring); Mack v. State, 650 So.2d 1289, 1299 (Miss.1994), cert. denied, 516 U.S. 880, 116 S.Ct. 214, 133 L.Ed.2d 146 (1995). "[T]he [opponent of the strike] is entitled to rely on the fact, ... that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate'." Batson, 476 U.S. at 96, 106 S.Ct. 1712 (citation omitted); Simon v. State, 688 So.2d 791, 808 (Miss.1997).
¶ 36. Courts, including this one, have recognized that such factual intensive inquiries give rise to a highly deferential standard of review. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712; Collins v. State, 691 So.2d 918, 926 (Miss.1997); Davis, 660 So.2d at 1242. Traveling under this deferential standard, it is clear that the judge was within his discretion in determining that a prima facie case of discrimination existed.
B. Gender and Racial Neutral Explanations
¶ 37. All that is required here is that the proponent of the strike give race or gender neutral reasons for the strike. Batson, 476 U.S. at 97, 106 S.Ct. 1712. Any reason which is not facially violative of equal protection will suffice. Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995). Henley's gender and race neutral explanations for striking panelist # 19 was that she was a housewife and unemployed. Additionally, he felt that she could not be fair and impartial, but was unable to give specific reasons because the information was received in confidence. While being a housewife is by its definition not gender neutral, Henley's other reasons are not facially violative of equal protection, and thus they pass the second prong of the Batson analysis. However, the teachings of Purkett make clear that a facially neutral reason under step two is not necessarily a non-pre-textual one under step three.
C. Pretext
¶ 38. This prong requires that the trial court determine if the opponent of the strike has carried his overall burden of proving purposeful discrimination. Primarily, this determination will turn on whether the proponent's proffered reasons are pretextual. The court will examine the reasons given by the proponent; and, as explained in Purkett, "at that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett, 514 U.S. at 768, 115 S.Ct. 1769.
¶ 39. Determination of pretext involves an analysis of factual findings which are similar to those found under step one: the extent and nature of voir dire on the grounds upon which the strike is being exercised;[6] the relation between the reasons for the strike and the facts of the case;[7] the demeanor of the attorney and the prospective juror;[8] and, disparate impact upon a minority or gender class.[9]
¶ 40. The term housewife necessarily limits the class to females. This is not a gender neutral reason and can be dismissed. This Court has previously held that unemployment is a valid, racially neutral reason for striking a potential juror. See, e.g., Mack, 650 So.2d at 1299. The trial judge did not state his reasons for seeing this explanation as pretextual. Nor, did he say that the reason was pretextual; we infer pretext because *241 the trial judge disallowed the challenge when Prather would not state additional reasons into the record. Apparently, the trial court focused on the fact that Prather would not state his additional reasons into the record, which implies that the court regarded unemployment as a pretext for purposeful discrimination.
¶ 41. In Mack, we recognized that the stronger the prima facie case, the more cogent the explanations from the proponent and supporting evidence must be and vice versa. Mack, 650 So.2d at 1298. In other words, the relative strength of the prima facie case of purposeful discrimination established at step one will often directly color the inquiry into whether any given reason is mere pretext. Id. These determinations fall squarely within the province and expertise of the trial judge, who will not be reversed except upon a showing of clear error. Batson, 476 U.S. at 98 n. 21, 106 S.Ct. 1712; Collins, 691 So.2d at 926; Davis, 660 So.2d at 1242. Viewing the record as a whole, we cannot say that the trial judge was clearly erroneous in disallowing Henley's peremptory challenge of # 19. The State made a reverse Batson challenge based on the fact that Henley had used his first three strikes on three white female jurors. At least one of Henley's proffered reasons, that # 19 was a housewife, was not gender neutral. The trial judge had the opportunity to judge the demeanor of the attorney making the proffer and examine his reasons while observing the attorney. While unemployment is facially neutral, it is apparent that the trial judge viewed this reason as a pretext for purposeful discrimination. When Henley failed to give additional reasons for his challenge, the trial judge declined to accept unemployment as a nondiscriminatory reason. Under the facts contained in the record before us, we cannot say that this determination was clearly erroneous.
IV. ATTORNEY ROBERT PRATHER PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL TO THE DEFENDANT AND THIS INEFFECTIVE REPRESENTATION SERIOUSLY PREJUDICED HAROLD HENELY'S DEFENSE.
¶ 42. In his fourth issue on appeal, Henley alleges he received ineffective assistance of counsel from his court appointed attorney, Robert Prather. Specifically, Henley complains that Prather was hostile towards him, hung up on him, would not accept his collect telephone calls, and spent less than 10 minutes with him before trial. The State responds that the record is insufficient to make a finding of ineffective assistance of counsel, and that Henley has failed to satisfy either prong of the Strickland test.
¶ 43. To prove a claim of ineffective assistance of counsel, Henley must show that counsel's performance was deficient and that his defense was prejudiced by the deficient performance. Walker v. State, 703 So.2d 266, 268 (Miss.1997); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court presumes trial counsel to be competent for the purposes of ineffective assistance of counsel claim. Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990). In order to overcome this presumption, Henley must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of his trial would have been different. Drennan v. State, 695 So.2d 581, 586 (Miss. 1997) (quoting Schmitt v. State, 560 So.2d 148, 154 (Miss.1990)). This Court views counsel's performance under the totality of circumstances. Cole v. State, 666 So.2d 767, 775 (Miss.1995). "[T]he level of scrutiny to be applied when measuring the performance of counsel against the deficiency and prejudicial prongs of Strickland is to look at the `over all' performance." Taylor v. State, 682 So.2d 359, 363 (Miss.1996).
¶ 44. After careful review of the record, we find that Henley has failed to satisfy either prong of the Strickland. Up until the point where Henley took over his own defense and Prather assumed an advisory role, the record reveals that Prather performed in a competent manner. Prather conducted voir dire of the jury panel, made a Batson challenge to the State's strikes, and responded to the State's reverse Batson challenges. During the course of trial, Prather's performance was also adequate. He conducted the cross-examination of six of the State's witnesses, *242 made numerous objections to the testimony of the State's witnesses, as well as to exhibits offered into evidence, and moved to dismiss because of an alleged discovery violation by the State.
¶ 45. After Henley took over his own defense and Prather was ordered to remain as his advisor, the record reveals that Prather conferred with and offered advice to Henley as to how he should proceed. Prather advised Henley on the objections to the State's attempt to impeach him with a prior conviction. After Henley said he was finished with cross-examination of Trace French, an investigator who searched Henley's home pursuant to search warrant, Prather asked the judge if could he confer with Henley. After conferring with Prather, Henley continued the cross-examination of French and was able to elicit the fact that the police found drug paraphernalia in the home, which they failed to take as evidence. This was an important point, since Henley alleged that Fields had agreed to have sex with him if he would give her some crack to smoke. Prather also conducted the direct examination of Henley and participated in the jury instruction phase.
¶ 46. The only possible deficiency in Prather's performance occurred when he failed to move for a directed verdict on the count of grand larceny. At this point in the trial, Henley had taken over the role of counsel in his own defense. Prather was relegated to the role of an advisor. After the State rested, Henley and Prather did confer as to what, if any, motions should be made. Henley moved the court to bring Fields back to the stand and to subpoena various witnesses to testify in his defense. In fact, the court asked Henley if he wanted Prather to make the motion for him and Henley said, "No, sir."
¶ 47. Prather's failure to move for a directed verdict as to the grand larceny charge would render his performance deficient under the Strickland test. See Holland, 656 So.2d at 1198. However, since we have reversed Henley's conviction of grand larceny, the issue is now moot.
CONCLUSION
¶ 48. Since the State failed to offer any evidence as to the value of the truck, Henley's conviction for grand larceny cannot stand. The grand larceny conviction is reversed and remanded to the lower court for sentencing on petit larceny. The remainder of Henley's arguments are without merit and his conviction is affirmed as to those issues.
¶ 49. COUNT I: CONVICTION OF GRAND LARCENY AND SENTENCE OF 5 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, REVERSED AND REMANDED FOR RESENTENCING FOR THE LESSER OFFENSE OF PETIT LARCENY. COUNT II: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF 18 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, TO RUN CONCURRENTLY WITH COUNT III, AFFIRMED. COUNT III: CONVICTION OF ATTEMPTED RAPE AND SENTENCE OF 8 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, TO RUN CONCURRENTLY WITH COUNT II, AFFIRMED.
SULLIVAN and PITTMAN, P.JJ., and McRAE, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur.
BANKS, J., dissents with separate written opinion.
PRATHER, C.J., not participating.
BANKS, Justice, dissenting:
¶ 50. Because it is my view that the trial court failed in its duty to fully explore the difficulty between client and counsel before forcing the defendant to proceed pro se, I must dissent.
¶ 51. While it true that an indigent defendant is not afforded a choice of state funded counsel by our constitutions it is equally true that where there are substantial grounds such a defendant may be entitled to have appointed counsel replaced. See People v. Ginther, 390 Mich. 436, 212 N.W.2d 922, 924 (1973) (citing American Bar Association Project *243 on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services, S. 5.3). Moreover, when a substantial conflict between counsel and defendant is asserted, it is incumbent upon the trial court to fully explore the reasons for the conflict. Id.; State v. Fender, 484 N.W.2d 307, 309-10 (S.D.1992); State v. Kane, 52 Haw. 484, 479 P.2d 207, 210 (1971)("Procedural due process requires (1) that a defendant have an opportunity to state on the record the basis for his objections to appointed counsel and (2) that a determination be made by the trial court as to the merits of these objections."); People v. Bass, 88 Mich. App. 793, 279 N.W.2d 551, 555 (1979).
¶ 52. In the instant case, Henley sought to speak to the court and his attorney said "no" more than once. When Henley was asked to approach the bench by the court and his attorney was also invited, the attorney at first declined to come but the court insisted. After the jury was excused, Henley alleged that his attorney had spent no more than ten minutes in the aggregate consulting with him about his case prior to trial, and that the attorney had refused to accept numerous calls and had hung up on him on occasion. He felt that his attorney was hostile towards him. He also expressed specific disagreement with the manner of his attorney's cross-examination of the complaining witness.
¶ 53. Summarizing what followed, the trial court immediately gave Henley the choice of continuing with the attorney or proceeding pro se. Henley repeatedly said that he did not wish to proceed pro se but that he would if compelled to do so. The prosecutor volunteered that defense counsel had been diligent in trying to work out a plea bargain. Henley's attempted response to that assertion was cut-off by the court. The court noted that the attorney was experienced, competent and respected. When asked for a response defense counsel asked the court that Henley be allowed to represent himself and moved to withdraw. He did not respond to the specific allegations made by Henley. The motion to allow Henley to represent himself was granted but the motion to withdraw was denied. The court persisted in the solution that Henley proceed pro se and directed that defense counsel serve as standby counsel in an advisory capacity only.[10]
¶ 54. After a recess, the court[11] examined Henley concerning his abilities in relation to proceeding pro se. Henley continued to express his desire for counsel. He asked that he be allowed to propound some questions to defense counsel, apparently on the issue of the conflict between them. The court, on its own motion, declined the request. At the end of this colloquy, defense counsel was offered the opportunity to put any further matters into the record. He stated that he had represented Henley to the best of his ability and that he had advised him that proceeding pro se was not in his best interest. He responded to the specific allegations only by acknowledging that he had indeed hung up on the defendant on an occasion when the defendant called him at home. He stated that he had been in the shower and that he had a policy against accepting calls at home. No explanation or refutation was made concerning Henley's other concerns. Henley then proceeded pro se as the majority describes.
¶ 55. Henley's complaint about the cross-examination of the complaining witness finds little support in this record. The fact is, however, the exact nature of his objection was never fully explored. It is also true that Henley's complaint came somewhat late. It was in the middle of trial after a number of witnesses had testified. Presumably Henley was well aware of any inadequacy of pre-trial discussion well before that time.
*244 ¶ 56. That said, however, we labor in total ignorance of what actually occurred between counsel and client which prompted Henley's request. The court conducted no real hearing and made no findings. For that reason I would remand this matter to that court for a hearing on this issue to determine the full import of the conflict alleged. I recognize that full exposition of the facts may be impossible due to the death of the defense counsel during the pendency of this appeal. Nevertheless, it is my view that remand is the least that is required to appropriately address the failure of the trial court to fully explore the circumstances of the issue with which it was confronted at trial before requiring the defendant to proceed pro se.
NOTES
[1] The electricity to the home had been cut-off before the events in question.
[2] Apparently, Fields' clothing was removed by one of the first officers on the scene the night of the attack. Henley admitted that Fields left his house without any clothes on.
[3] Mr. Prather was court appointed to represent Henley, who is indigent.
[4] At this point in the trial, the State had two witnesses left in its case-in-chief, Henley was the only defense witness, and the State offered no rebuttal.
[5] 97-17-42, which makes the taking of a motor vehicle, without authority, a felony was not effective until two months after Henley's crime.
[6] J.E.B. v. Alabama, 511 U.S. at 143-44, 114 S.Ct. 1419; Jackson v. State, 684 So.2d 1213, 1223 (Miss.1996); Stewart v. State, 662 So.2d 552, 559 (Miss.1995); Hatten v. State, 628 So.2d 294, 305 (Miss.1993) (Hawkins, C.J., specially concurring); Mack v. State, 650 So.2d 1289, 1299 (Miss.1994).
[7] Mack, 650 So.2d at 1298 (citations omitted); Batson, 476 U.S. at 89, 106 S.Ct. 1712; Hatten, 628 So.2d at 300 (Hawkins, C.J., specially concurring); Purkett, 514 U.S. at 768-69, 115 S.Ct. 1769; Blue v. State 674 So.2d 1184, 1211 (Miss. 1996); Lockett v. State, 517 So.2d 1346, 1348 (Miss.1987).
[8] Hernandez, 500 U.S. at 365, 111 S.Ct. 1859; Lockett, 517 So.2d at 1352; Mack, 650 So.2d at 1299; Stewart, 662 So.2d at 559; Walker v. State, 671 So.2d 581 (Miss.1995).
[9] Batson, 476 U.S. at 94, 106 S.Ct. 1712; Davis, 660 So.2d at 1264 (Banks, J., concurring); Hatten, 628 So.2d at 303 (Hawkins, C.J., specially concurring); Mack, 650 So.2d at 1298.
[10] In order to present the proceedings here at issue in context a copy of the relevant transcript pages are attached as an appendix to this opinion.
[11] The majority suggests that propounding questions to defense counsel somehow puts the court at defendant's mercy. I fail to see how allowing trained counsel to respond to questions from a pro se defendant concerning the relationship between them in any way puts a competent court at the defendant's mercy. On the contrary, a defendant who finds himself in such circumstances is really at the mercy of the trained professionals involved including the court, the prosecutor and defense counsel. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/312401/ | 481 F.2d 1274
73-2 USTC P 9590
The WHITE CASTLE LUMBER AND SHINGLE COMPANY, LTD., Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.BOWIE LUMBER COMPANY, LIMITED, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.JEANERETTE LUMBER AND SHINGLE COMPANY, LTD., Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
Nos. 73-1221 to 73-1223.
United States Court of Appeals,Fifth Circuit.
Aug. 1, 1973.Rehearing and Rehearing En Banc Denied Nov. 2, 1973.
Malcolm L. Monroe, Benjamin R. Slater, Jr., Herman C. Hoffmann, Jr., Richard P. Wolfe, New Orleans, La., for plaintiffs-appellants.
Scott P. Crampton, Asst. Atty. Gen., Meyer Rothwacks, Murray S. Horwitz, Attys., Tax Div., U.S. Dept. of Justice, Washington, D. C., Gerald J. Gallinghouse, U. S. Atty., Joan Elaine Chauvin, Asst. U. S. Atty., New Orleans, La., Charles G. Barnett, Tax Div., Dept. of Justice, Fort Worth, Tex., for defendant-appellee.
Before GOLDBERG, CLARK and RONEY, Circuit Judges.
PER CURIAM:
1
The judgments of the District Court, 355 F. Supp. 1127, are affirmed. Houston Farms Development Co. v. United States, 5 Cir. 1943, 131 F.2d 577, rehearing denied, 132 F.2d 861.
2
Affirmed.
3
GOLDBERG, Circuit Judge (specially concurring):
4
My brother, Clark, though disenchanted with Houston Farms, would affirm these three cases solely on the basis of its precedential command. Believing as I do in the tenets and teachings of Houston Farms, I feel compelled to explicate its holding and application to the cases at bar.
5
This is an appeal from a judgment of the District Court dismissing taxpayers' consolidated suits for recovery of income taxes assessed and collected from them. The sole question before this Court is whether certain payments that taxpayers received as landowners and lessors of oil and gas rights constituted depletable "lease bonuses" or nondepletable "delay rentals." Taxpayers seek to introduce yet another leprechaun into the mounting mythology of oil and gas taxation, but for the reasons stated herein, I feel that the District Court correctly found that the payments in question were nondepletable delay rentals.
I.
6
Taxpayers, The White Castle Lumber and Shingle Company, Ltd., Bowie Lumber Company, Ltd., and Jeanerette Lumber and Shingle Company, Ltd., are Louisiana corporations that leased their lands to various oil companies under oil and gas leases. For the purposes of this appeal, all of the leases may be considered as basically the same, providing for (1) a cash down payment for the lease, (2) a primary term of between three and five years, (3) a selection date occurring six months or one year from the commencement of the lease, at which point the lessee was required to pay taxpayers a "selection bonus" to continue the lease for an additional year, and (4) a delay rental payment due (a) at the end of the year extension caused by the selection bonus if drilling or production had not been commenced during that year and (b) at the end of any subsequent years when drilling or production had not been commenced. The leases all contained provisions similar to the following paragraphs:
7
"This lease shall terminate as to both parties twelve (12) months from the date hereof (hereinafter referred to as "selection date"), unless on or before said date Lessee has, in writing, elected to retain this lease in whole or in part. If Lessee should so elect to select and retain all or any part of the acreage covered hereby, Lessee shall pay or tender to Lessor or to the credit of Lessor in the depository named herein, the sum of $35.00 per acre on the lands originally covered by this lease, even though Lessee has elected to select and retain less than 100% of such acreage. Said payments shall be a selection bonus and shall be a prerequisite under all circumstances to the continuance of this lease in effect after the selection date, and shall extend the terms of this lease for twelve (12) months following the selection date. If operations for the drilling of a well be not commenced on or before one year from the selection date, this lease shall terminate as to both parties unless Lessee on or before that date, shall pay or tender to Lessor, or to the credit of Lessor in the depository named herein, a rental in an amount based upon $35.00 per acre for the lands originally covered by this lease, even though this lease then covers less than 100% of the acreage originally covered hereby, which payment shall cover the privilege of deferring the commencement of operation for the drilling of a well on such lands for twelve (12) months from such date. Thereafter, and during the primary term of this lease, the commencement of such operation may be further deferred for successive periods of twelve (12) months each by payments or tender, on or before the first day of any such period for which such operation are deferred, of a rental in an amount based upon $35.00 per acre for the lands originally covered by this lease, even though this lease then covers less than 100% of the acreage originally covered hereby. The down cash payment and selection bonus are consideration for this lease according to its terms and shall not be allocated to a mere rental for a period.
8
". . .
9
"The intent of the Lessor and Lessee is that during the primary term and in the absence of production, the Lessee may continue its rights under this lease in either one of two ways: (1st) at the expiration of any delay period, it may begin or be engaged in operations for the drilling of a well and continue same with due diligence; or (2nd) at the expiration of such delay period, it may pay the required delay rental."1
10
Unlike delay rentals, which could be avoided by drilling or production, the selection bonus payment had to be paid even if there had been drilling operations or production from the leased premises prior to the selection bonus date. The lessees could avoid paying the selection bonuses only by surrendering the leased premises prior to the dates on which the selection bonus payment became due.
11
On their returns for the tax years in question, taxpayers claimed depletion deductions on the selection bonuses they received under the lease. The Commissioner disallowed the deductions, treating the payments as nondepletable delay rentals, and assessed deficiencies, which taxpayers paid. After the Commissioner refused taxpayers' claims for refunds, taxpayer brought these refund suits in the District Court. The District Court sustained the Commissioner's position-ruling that the selection bonuses were nondepletable delay rentals, not lease bonuses that could be depleted-and this appeal followed.
II.
12
The customary form of oil and gas lease in wide use in the oil and gas industry provides for an initial payment, or "bonus", upon the execution of the lease. "[A] true bonus is a payment which the lessee is obligated to make at all events, with or without production, which cannot be avoided by termination or abandonment of the leasing arrangement." 4 Mertens, Law of Federal Income Taxation (Rev.1966) Sec. 24.24 at p. 112 (emphasis added). See Lambert v. Jefferson Lake Sulphur Co., 5 Cir. 1956, 236 F.2d 542, 544-545. The bonus is depletable income to the lessor, for it is a "return pro tanto of [the lessor's] capital investment in the oil, in anticipation of its extraction . . . ." Palmer v. Bender, 1933, 287 U.S. 551, 559, 53 S. Ct. 225, 227, 77 L. Ed. 489, 494; accord Murphy Oil Co. v. Burnet, 1932, 287 U.S. 299, 302, 53 S. Ct. 161, 162, 77 L. Ed. 318, 322; Burnet v. Harmel, 1932, 287 U.S. 103, 111, 53 S. Ct. 74, 77, 77 L. Ed. 199, 205, and is regarded as "payment in advance for oil and gas to be extracted." Herring v. Commissioner, 1934, 293 U.S. 321, 324, 55 S. Ct. 179, 180, 79 L. Ed. 389, 391.
13
The normal oil and gas lease also provides for the optional payment of annual "delay rentals" during the primary term. Delay rentals are amounts paid for the privilege of deferring development of mineral properties. Delay rentals are nondepletable rents and:
14
"accrue by the mere lapse of time like any other rent. They do not depend on the finding or production of oil or gas and do not exhaust the substance of the land. While having some likeness to a bonus payment . . . the delay rental is not paid directly or indirectly for oil to be produced, but is for additional time in which to utilize the land."
15
Commissioner v. Wilson, 5 Cir. 1935, 76 F.2d 766, 769. See Treas.Reg. Sec. 1.612-3(c)(2).
16
The Treasury Regulations recognize that unlike a true bonus, which cannot be avoided by the lessee, 4 Mertens, Law of Federal Income Taxation, supra, the delay rental can be avoided in a number of ways. The Regulations provide:
17
"A delay rental is an amount paid for the privilege of deferring development of the property and which could have been avoided by abandonment of the lease, or by the commencement of development operations, or by obtaining production."
18
Treas.Reg. Sec. 1.612-3(c)(1).
19
It is clear from the foregoing discussion that because the selection bonus payments received by taxpayers could be avoided by abandonment of the lease, those payments (1) do not qualify as true bonuses and (2) are delay rentals as defined by the Treasury Regulations. Taxpayers contend, however, that the selection bonus payments should not be treated as delay rentals because (1) delay rentals are paid "solely for the privilege of deferring development of production" and therefore the critical distinction between a selection bonus and the normal delay rental is that the selection bonus cannot be evaded either by prior drilling operation or by production, and (2) the selection bonus is much more like an initial bonus than a delay rental because by the terms of the lease both payments are consideration for the lease and both payments extend the time for commencement of operations by the lessee.
20
Taxpayers' arguments are not persuasive. Whether a payment under a mineral lease is a delay rental or a true bonus is a question of fact that is best ascertained by analyzing the agreement of the parties, see Bayou Verret Land Co. v. Commissioner, 5 Cir. 1971, 450 F.2d 850, 856; Houston Farms Development Co. v. United States, 5 Cir. 1943, 131 F.2d 577, 579, rehearing denied, 132 F.2d 861; Maureen Fitzimmons v. Commissioner, 1961, 37 T.C. 179, 184. For tax purposes, courts should not exalt form over substance, and the mere terminology of the lease is not determinative. Maureen Fitzimmons v. Commissioner, supra.2 I do not think that the District Court was erroneous in determining that the selection bonus payments were actually delay rentals. I base this finding both upon the fact that the selection bonus payments in the agreement could be avoided by abandonment and upon the fact that these selection bonus payments served the same function as delay rentals.
21
In reaching this conclusion I am greatly influenced by the decision of this Circuit in Houston Farms Development Co. v. United States, 5 Cir. 1943, 131 F.2d 577, rehearing denied, 132 F.2d 861, and by the applicable Treasury Regulations.
22
In Houston Farms Development Co. v. United States, supra, the taxpayer-lessor received an initial bonus for executing an oil and gas lease for a primary term of five years and fifty-five days. The lease provided, however, that it would terminate in fifty-five days unless the lessee paid the lessor $12.50 per acre for all or such part of the leased land that it elected to retain. This retention payment, like the selection bonus under consideration, extended the lessee's rights in the retained land for a period of twelve months without requiring any operations or further payments. Furthermore, like the instant selection bonuses, the retention payment in Houston Farms evidently could not be avoided by drilling and could be avoided only by abandonment, for the lease automatically terminated if the payment was not made. Finally, just as in the leases now before us, the lease in Houston Farms provided in another clause for the payment of a delay rental3 if the taxpayer had not commenced drilling before the end of the twelve-month extension period procured by the retention payment. This Circuit held in Houston Farms that the retention payment was not a bonus, but rather was a delay rental:
23
"We think it clear that the money was paid merely for holding the lease for a year without the necessity of drilling. It is in the nature of rental, involving no depletion of the oil reserve. This is made even clearer by the succeeding agreement to pay $5 per acre per year for succeeding years for the identical purpose, and this is expressly called rental. We see no difference at all in the purpose and effect of the payments. They are all in the nature of rentals, as respects depletion."
24
Houston Farms Development Co. v. United States, supra, 131 F.2d at 579. The Houston Farms decision is four square with the case sub judice and mandates this panel's affirmance of the District Court.
25
The Treasury Regulations, Treas.Reg. Sec. 1.612-3(c)(1), also support the determination that the selection bonus is a delay rental. The Regulations provide that a delay rental is a payment for deferring development of mineral lands that can be avoided: (1) by abandonment of the lease, or (2) by the commencement of development operations, or (3) by obtaining production. Thus, the Regulations support the result reached in Houston Farms and which this panel reaches here, for like the retention payments in Houston Farms, the selection bonus could be avoided by abandonment.4
26
Finally, the taxpayers' argument that the selection bonus is more like an initial bonus than a delay rental is not at all convincing. The selection bonus payments, like delay rentals, gave taxpayers the privilege of deferring development of the property for almost a full year from the selection date. In the event that no drilling was commenced prior to the selection date, the selection bonus served precisely the same function as a delay rental, for it (1) reimbursed the lessor for the loss he suffered in the absence of production; and (2) allowed the lessee to maintain the lease and further delay the time during which drilling would be required to be commenced. The fact that production actually occurred prior to the date of the selection bonus payment in a number of transactions under consideration is inconsequential, for in analyzing the leases the function which the selection bonus played in the overall agreement must be evaluated, cf. Bayou Verret Land Co. v. Commissioner, supra; Houston Farms Development Co. v. United States, supra, and a selection bonus that is payable six months or one year after the commencing of a lease and that extends the time for commencing drilling or production for only one year plays the same function in an agreement as would be played by a delay rental.5
III.
27
History, economics, politics and compromise are the timbers supporting present construction of the Code and Regulations dealing with oil and gas taxation. At times it seems that words are the demons of subsurface taxation, for the artificial artifacts of mineral taxation can beguile the unwary. However, in reaching the proper result, one must be guided by economic and functional geodetics, rather than the semantic eccentricities of taxpayers' oil and gas leases. Viewing the leases from this economic and functional perspective, it is clear that only a misguided and misoriented lexicographer or philologist could be deceived into considering that the selection bonuses were payments for anything other than delay.
28
Generally speaking a bonus payment is a consensually bargained-for fixity for anticipated or hoped for production. To be depletable a bonus must be payable in all events with no conditions precedent or subsequent to subvert the payments. Conversely, a delay rental is an avoidable payment for deferring the development of mineral lands. Taxpayers would have this Court construe their lease instruments as divisible one year leases with a bonus payable before each year; however, the differences between the hybrids designated as selection bonuses in taxpayers' leases and a pristine delay rental are insubstantial. These leases envisioned a term of a number of years, and the payments denominated "selection bonuses" served no purpose not served by the delay rentals. The selection bonuses were for delay, and were not payments for minerals in place, or based upon any theoretical or actual extraction of taxpayers' oil and gas.
29
Bonus payments have justifiably or unjustifiably become a sanctified haven in our tax structure, but there is no reason to widen the haven's dimensions to include payments functionally indifferentiable from delay rentals. The District Court was correct in treating the selection bonuses as delay rentals.
CLARK, Circuit Judge (specially concurring):
30
If I were free to do so I would follow Judge Hutcheson's dissent in Houston Farms on rehearing. 132 F.2d 861. The government's fiction of attaching taxable incidence to delay rentals can easily confuse related issues. Oil and gas leases are basically no different from other contractual agreements-each has its quid pro quo. The manner of expressing a payment should not control its economic substance. The "selection bonuses" in the cases at bar were much more akin to a tax depletable payment made to obtain an oil lease than to a nondepletable payment made to delay the production of oil. In fact, oil production and lease development were taking place on some of the leases in question at the time such selection bonuses were paid.
31
The touchstone of the government's position both in appellate argument and in its own regulation is that these selection bonuses were delay rentals because they could be avoided by abandonment. However, abandonment as a characteristic which would, in and of itself, determine taxation is a poor criterion. It is not indigenous solely to delay rentals; it may also appertain to tax depletable royalty payments-even a fixed-sum perbarrel royalty proviso-so long as the payment is to be made at a future date.
32
These selection bonuses were essentially payments for exercising an option to make a new "unless" lease to replace the initial time-limited tenancy, which, unless so replaced, unconditionally expired twelve months from its date. Allowing substance to control over form would bring me out in favor of reversing these cases.
1
The differences between the leases involve price, length of the primary term of the lease, and number of acres covered. One lease provided that the lessee must pay $25 per acre for 3,000 acres at the selection date, no matter how small the acreage selected, while all the other leases provided that the lessee must pay a speci fied amount per acre for the total original acreage covered by the lease, no matter how small the acreage selected
In some of the leases the delay rental payment was less than the selection bonus payment. For example, in one lease the selection bonus was $25 and the delay rental was $15, and in two other leases the selection bonus was $50 and the delay rental was $25.
2
Thus, it is not dispositive that taxpayers' leases contained the following provision:
"The down cash payment and selection bonus are consideration for this lease according to its terms and shall not be allocated to a mere rental for a period."
3
The delay rental payment in Houston Farms was less than one-half of the retention payment and therefore there is no significance in the fact that in some of the leases here under consideration the delay rental was one-half of the selection bonus. Moreover, the fact that the delay rental in Houston Farms was less than one-half of the retention payment supports the finding with regard to those leases under consideration where the selection bonus was equal to the delay rental
4
The emphasis placed on the fact that the selection bonuses were avoidable in determining that they are delay rentals is supported in prior Fifth Circuit decisions. In Lambert v. Jefferson Lake Sulphur Co., 5 Cir. 1956, 236 F.2d 542, the taxpayer entered into a sublease with the lessee of certain sulphur lands. The taxpayer agreed to conduct exploratory drilling operations and to pay the lessee, the taxpayer's lessor, a royalty if sulphur were discovered and produced. Under the prime lease, the lessee was obligated to pay the landowner a $300,000 bonus in quarterly installments of $7,500. In the sublease, the taxpayer agreed to pay his lessor, the lessee in the prime lease, an amount equal to the $7,500 quarterly installments. This agreement, however, was avoidable by the taxpayer if any of these events occurred: (1) a failure to exercise certain exploratory rights; (2) a failure to erect a sulphur production plant before a requisite date; or (3) a failure to conduct sulphur production before the requisite date. The Commissioner contended that the taxpayer's payments to his lessor under the sublease were bonus payments because under the lessor's prime lease they constituted bonus payments. This Court held, however, that the critical relationship was that between the taxpayer and his lessor, and that the avoidable payments made pursuant to the sublease "were in the nature of delay rentals . . .." Lambert v. Jefferson Lake Sulphur Co., supra, 236 F.2d at 546. This analysis was approved in Shamrock Oil & Gas Corp. v. Commissioner, 5 Cir. 1965, 346 F.2d 377, 381
Maureen Fitzsimmons v. Commissioner, 1961, 37 T.C. 179, relied on by taxpayers also supports the result reached here, for the payments found to be bonuses in that case could not have been avoided by drilling or abandonment since they were mandatory payments for two years of the term of the lease. Similarly, in Cowden v. Commissioner, 5 Cir. 1961, 289 F.2d 20, this Circuit recognized the validity of a bonus payable in installments, at the same time taking note of the fact that the lessee was obligated to make the installment payments. Id. at 23.
5
Of course, this is not to say that every selection bonus is per se a delay rental. For instance, in Bennett v. Scofield, 5 Cir. 1948, 170 F.2d 887, this Court found that a $6 per acre payment for the selection of additional acreage that extended the lease on the additional acreage for fifteen years was a bonus payment | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1922250/ | 756 A.2d 753 (2000)
STATE
v.
William MILLIKEN.
No. 99-90-C.A.
Supreme Court of Rhode Island.
August 2, 2000.
*754 Present WEISBERGER, C.J., and LEDERBERG, BOURCIER, FLANDERS, and GOLDBERG, JJ.
Aaron L. Weisman, Providence, for plaintiff.
Paula Hardiman Lynch, Providence, Paula Rosin, for defendant.
OPINION
PER CURIAM.
This case came before the Court in Washington County on the appeal of the defendant, William Milliken (defendant or Milliken), from judgments of conviction following a jury trial in Providence County Superior Court for two felony counts of assault on a person over sixty years of age, in violation of G.L. 1956 § 11-5-10, and second-degree robbery in violation of G.L. 1956 § 11-39-1(b).[1] The defendant was sentenced to a term of ten years at the Adult Correctional Institutions, five years to serve and five years suspended on the count of assault, and to a concurrent term of five years to serve for second-degree robbery. Both parties were directed to appear and show cause why the issues raised by this appeal should not be summarily decided. No cause was shown, and we shall decide this appeal at this time.
Before this Court, defendant contended that the trial justice erred when he restricted defense counsel's direct examination of defendant and cross-examination of the complaining witness and by refusing to admit the testimony of a defense witness offered to establish motive and bias on the part ofthe complaining witness. Also, defendant argued that the trial justice erred by permitting the state to delve into his purported use of drugs and alcohol and possession of sexual paraphernalia, resulting in prejudice against defendant. For the reasons stated below, we deny the appeal and affirm the judgments of conviction.
Facts and Travel
On the afternoon of October 13, 1997, Patrolman Daniel J. McCarthy (Patrolman McCarthy), of the Providence Police Department, having been alerted to a report of an assault, responded to 94 Winthrop Avenue in Providence, the home of defendant's elderly mother, Territa Conde (Conde).[2] Patrolman McCarthy testified that when he arrived, Conde appeared nervous and afraid. She told him that her son had just assaulted her, that he had stolen fifty dollars from her, and that he had taken her car. Patrolman McCarthy testified further that he observed that a strongbox had been smashed, papers had been destroyed, and Conde's wallet had been torn apart and the contents removed.
Conde testified that earlier that afternoon, defendant had arrived at her home very upset, and when she asked her son what was bothering him, he responded that he needed fifty dollars because his dog was sick. Conde testified that she told defendant she could not give him fifty *755 dollars, but that she would give him five dollars.[3] Conde said that defendant became very angry, grabbed her by the back of the head and threw her down onto the kitchen floor. Then, according to Conde, defendant proceeded to drag her across the kitchen floor into her bedroom, where he repeatedly kicked her in her side.Conde testified that after pulling her up off the floor, defendant retrieved Conde's strongbox and proceeded to kick and stomp it open. However, according to Conde, defendant's efforts proved fruitless because there was no money in the box. Frustrated, defendant tore up the contents of the box, which included papers that Conde considered important to her, including her living will. Conde testified that defendant eventually discovered her billfold and helped himself to fifty dollars. Finally, Conde testified that when he was leaving, defendant threatened to kill her if she contacted the police.
The defendant also testified about the events that transpired on October 13, and although his testimony was consistent with his mother's in certain respects, defendant denied assaulting his mother and denied dragging her across the floor. Further, defendant testified that he took the money from an envelope reserved for his mother's phone bill with her permission, and that he did not take money from her wallet. On September 30, 1998, following a two-day trial, the jury returned a verdict of guilty on both counts. The defendant undertook a timely appeal. Additional facts will be supplied as they are necessary to the issues raised in this appeal.
Discussion
Before this Court, defendant argued that the trial justice erred by not permitting cross-examination of Conde about her possible bias or motive toward defendant,[4] by not allowing defendant to testify about possible bias or motive on the part of his mother,[5] and by refusing to admit the testimony of Nancy Butterworth (Butterworth), a former girlfriend of defendant. The defendantasserted that Butterworth was prepared to testify that defendant's mother was biased against him and had made threats toward him to "get him" and "fix him," and that she specifically left messages to that effect on defendant's telephone answering machine. The trial justice disallowed the testimony of Butterworth, finding the question of whether Milliken was in fear of his mother was irrelevant because fear was not a defense to the charges and further, that defendant had testified that he was not afraid of his mother. The defendant argued that the testimony of Butterworth was important to demonstrate Conde's bias toward her son and, therefore, the likelihood that she would fabricate a story to implicate him in the commission of a criminal act.
Recently, in State v. Oliveira, 730 A.2d 20 (R.I.1999), we had occasion to pass upon a trial justice's discretion in affording defense counsel a reasonable opportunity to explore and establish any possible bias or ulterior motive on the part of the witnesses against him. Id. at 24. In recognizing that a trial justice is vested with wide discretion to permit or limit counsel's cross-examination of witnesses during trial, and that a ruling will not be disturbed *756 on appeal absent a showing of a clear abuse of discretion amounting to prejudicial error, we held that the trial justice abused his discretion by not affording Oliveira "a minimum threshold of inquiry as to the witness's probable motive for his [or her] testimony," and concluded that Oliveira was unduly prejudiced by that ruling. Id.
In light of Oliveira, we are satisfied that the trial justice erred in not allowing defense counsel to inquire into Conde's possible bias or motive and by precluding the testimony of defendant's witness that was offered to establish bias or motive on the part of the complaining witness. A request by the state to limit or exclude the presentation of defense witnesses in a criminal trial should be received with caution and carefully reviewed by the trial justice, who, although exercising his or her broad discretion to determine its relevance, is faced with the potential for prejudicial error to the defendant. Here, the stateacknowledged this error but argued that it was harmless in light of defendant's trial testimony. We agree, and are satisfied that by precluding defendant from presenting this evidence, the trial justice erred, however, we are of the opinion that the error was harmless.[6]
At trial, defendant testified that he went to his mother's house to get fifty dollars to pay for treatment for his ill dog. However, when his mother offered him only five dollars, he became "infuriated" because it was "like a slap in the mouth." Thereafter, defendant asked his mother to open the strongbox, where he thought she stored cash. When his mother refused to open it, he ordered her to "[g]et the key or I'll put a screwdriver to it." According to defendant, Conde then opened the strongbox, which proved to be empty. The defendant testified that, "I was infuriated because the box was empty. I threw the box on the floor off the bed on the floor on the side of the bed and I stomped it. I said, `That's what I think about your' * * * `f ... ing box' and I stomped it out. I stomped the box out."
The defendant testified that afterward, while eating a sandwich that his mother had made for him, he noticed an envelope full of money earmarked for a bill payment. The defendant further testified that the following exchange took place between him and Conde:
"`[W]e can juggle the books. I need $50.' So, she says, `You can't have it.' I said, `But Ma my dog is sick. I really need I really need $50 for my dog.' She said, `I don't have it.' But I said, well, I says, `Look we got money here. We can juggle the books.' So, I took two twenties and a ten. She turned to me and she said to me, `You're stealing.' And I said to her, `I'm not stealing from you. I don't have to steal from you. The only way I'm leaving this house is two ways. Either you are giving it to me or you're loaning it to me.'" (Emphasis added.)
The defendant testified that at that point his mother became upset and accused him of stealing, to which he again replied: "I don't have to steal from you." The defendant testified, his mother finally told him to take the money and get out, to which he replied: "`You're going to call the police on me, aren't you?'"
In light of this testimony, in which defendant admitted to destroying the box and taking money from his mother without her permission, and the factual record in this case, we are satisfied that although the trial justice erred in disallowing cross-examination of a witness pertaining to that witness's possible bias or motive and in precluding the testimony of a defense witness, where such witness was prepared to testify about possible bias or motive of the complaining witness, the error was harmless beyond a reasonable doubt. See, e.g., *757 Oliveira, 730 A.2d at 23. We note that defendant's testimony was an admission to the tantrum and ultimately an admission to the theft of the money. The defendant asserted that his mother gave him permission to take the money. However, we are satisfied that the jury could have been persuaded that the ultimatum given to his mother that, "[t]he only way I'm leaving this house is two ways * * * [e]ither you are giving it to me or you're loaning it to me," left her with no choice in the matter, and is tantamount to theft. Further, we note that the testimony of Patrolman McCarthy about the bruises and about the destruction of the strongbox, the papers, and the wallet, corroborated Conde's testimony and portions of defendant's testimony. Although defendant was precluded from presenting evidence of bias or motive, which should have been introduced, we are satisfied nonetheless, given the existence of such overwhelming inculpatory evidence, particularly defendant's admissions, that the error was harmless beyond a reasonable doubt.
Also, defendant argued on appeal that the trial justice committed reversible error by permitting the state to inquire into defendant's alleged drug and alcohol use and alleged possession of sexualparaphernalia[7] that unfairly prejudiced defendant. However, we are of the opinion that this issue has not been adequately preserved for our review. At trial, the state cross-examined defendant about why he needed the money and challenged his assertion that it was to treat his ill dog. Specifically, the state questioned defendant about his purported use of drugs and alcohol and about drug paraphernalia allegedly discovered in the room he used in his mother's apartment.
This Court continuously has held that the admission or exclusion of evidence on the grounds of relevance is a decision left to the sound discretion of the trial justice. State v. Robertson, 740 A.2d 330, 335 (R.I.1999) (citing State v. Gabriau, 696 A.2d 290, 294 (R.I.1997)). Also, "[i]t is well settled that this [C]ourt will not review issues that were not preserved for appeal by a specific objection at trial." Africano v. Castelli, 740 A.2d 1251, 1253 (R.I.1999) (quoting State v. Pineda, 712 A.2d 858, 861 (R.I.1998)). Further, "[a]llegations of error committed at trial are considered waived if they were not effectively raised at trial, despite their articulation at the appellate level." Id. (quoting State v. Toole, 640 A.2d 965, 973 (R.I.1994)).
We are satisfied that the defendant had an adequate opportunity at trial to make an appropriate objection to an inquiry into whether he used drugs and alcohol. We note that the state posed eight questions to the defendant about his potential use of drugs and alcohol before defense counsel interposed an objection to this line of questioning, and that the objection, when finally made, was not proper. The defense counsel stated: "Judge, I'm going to object. If the [p]rosecutor seeks to introduce evidence, she may need a witness other than [defendant] in which to do that. There's no foundation. There's no offer of proof." On appeal, the defendant contended that this line of inquiry unfairlyprejudiced him in the eyes of the jury. However at trial, he argued that there was inadequate foundation. Therefore, because the defendant did not effectively raise the issue at trial, he has waived his right to raise it at the appellate level.
Conclusion
Accordingly, for the foregoing reasons the defendant's appeal is denied and the judgments of conviction are affirmed. The papers in this case are remanded to the Superior Court.
NOTES
[1] A third count, larceny under $500, in violation of G.L. 1956 §§ 11-41-1 and 11-41-5 also was charged but was dismissed at the close of the evidence.
[2] Conde was eighty-three years old at the time of the incident. We learned at oral argument that she since has died.
[3] Conde testified that defendant suffered from a lifelong seizure disorder known as "petite mal," and, as result, received SSI payments. Conde testified that when defendant turned twenty-one, she received power of attorney from him, permitting her to cash his checks, and therefore it was not unusual for her to provide him with money when needed.
[4] On cross-examination, defense counsel inquired into an alleged threat made by Conde to her son. Specifically, the threat entailed Conde's knowledge about the court system and a charge of abusing the elderly. The state objected on the grounds of relevance, and the trial justice sustained the objection.
[5] The defendant testified on direct examination that his mother warned him that she would do to him what she did to his father, who purportedly committed suicide. The state objected, and the objection was sustained.
[6] At the very least, we note that the trial justice should have conducted a voir dire of the defense witness before disallowing her testimony.
[7] We note that the "sexual items" defendant mentioned in his brief refers to a marijuana "roach" clip purportedly discovered in his bedroom, depicting a man and a woman having sex. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599441/ | 3 So. 3d 329 (2009)
PALMER
v.
STATE.
No. 2D09-160.
District Court of Appeal of Florida, Second District.
February 11, 2009.
Decision without published opinion. App.dismissed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599466/ | 3 So. 3d 480 (2009)
STATE ex rel. Edward J. BOURGEOIS
v.
STATE of Louisiana.
No. 2008-KH-1332.
Supreme Court of Louisiana.
March 6, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599385/ | 729 So.2d 197 (1998)
Calvin WALKER
v.
STATE of Mississippi.
No. 96-KA-00938-SCT.
Supreme Court of Mississippi.
November 12, 1998.
Rehearing Denied January 28, 1999.
*198 James P. Vance, Grenada, for Appellant.
Office of the Attorney General by Deirdre McCrory, for Appellee.
Before PITTMAN, P.J., and BANKS and WALLER, JJ.
WALLER, Justice, for the Court:
SUMMARY
¶ 1. Calvin Walker ("Walker") was sentenced to 30 years with 10 suspended for sale of cocaine in violation of Miss.Code Ann. § 41-29-139(a). Walker filed timely notice of appeal raising the following issues for consideration:
I. THE LOWER COURT ERRED IN DENYING WALKER'S MOTION FOR A CONTINUANCE.
II. THE LOWER COURT ERRED IN DENYING WALKER'S MOTION FOR SEVERANCE.
III. THE VERDICT OF GUILT IS NOT VALID BECAUSE IT WAS COERCED BY THE TRIAL JUDGE.
IV. THE VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
*199 FACTS
¶ 2. On April 12, of 1994, two men working for the North Mississippi Narcotics unit drove to Picken's One Stop in Okolona, Mississippi, to purchase drugs for the purposes of making an arrest. A confidential informant ("C.I.") was driving the vehicle and investigator Dennis Johnson was riding in the passenger seat. The C.I. was wired with a transmitter. Upon arriving at the store, the C.I. initially asked Marshall where a man named Hughes was, and then told Marshall he wanted to buy cocaine from Walker. Marshall initially responded that he didn't sell dope but asked if the C.I. would break off a piece of the cocaine for him. Marshall then went to the door of the pool hall abutting the Picken's One Stop and engaged in a conversation with Walker. Johnson testified that the distance was approximately 10 to 14 feet from the car. Johnson observed Walker hand something to Marshall, who returned to the car with two rocks of cocaine. Johnson paid Marshall $40 for the cocaine.
¶ 3. Johnson and the C.I. then returned the drugs to the case agent on the matter and both Marshall and Walker were subsequently indicted for the sale of cocaine. They were tried together and the jury returned a verdict of guilty on each defendant. Mr. Lancaster represented Walker, and Mr. Burns represented Marshall.
DISCUSSION
I. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION WHEN IT DENIED WALKER'S MOTION FOR A CONTINUANCE.
¶ 4. "The grant or denial of a continuance lies within the sound discretion of the trial court." Hughey v. State, 512 So.2d 4, 6 (Miss.1987)(citing Gates v. State, 484 So.2d 1002, 1006 (Miss.1986); Carter v. State, 473 So.2d 471, 475 (Miss.1985)); see also Gates v. State, 484 So.2d 1002, 1006 (Miss.1986)("Of course, the granting or not granting of a continuance is within the sound discretion of the trial judge."); Carter v. State, 473 So.2d 471, 475 (Miss.1985)("It is well established in Mississippi that trial judges have broad discretion in granting a continuance.")(citing Greene v. State, 406 So.2d 805 (Miss.1981); Norman v. State, 385 So.2d 1298 (Miss. 1980)); Miss.Code Ann. § 99-15-29 (1994) ("The court may grant or deny a continuance, in its discretion").
¶ 5. Examining the facts in the current case, it is this Court's opinion that the trial judge was within his discretion in denying the defendant's motion for a continuance. Lancaster, Walker's attorney, moved ore tenus for a continuance on July 22, the day before trial. This was denied, and Lancaster filed a written motion for continuance the next day, averring that he was unable to prepare for trial due to scheduling conflicts and the fact that he had been appointed only one day before trial.
¶ 6. Arguing his motion, on July 22, 1996, Lancaster stated,
I was under the impression Roy Ferrill is representing the defendant. Apparently, he is not. Out of abundance of caution, first you will notice Billy Shelton signed the arraignment, and he's out of it. Then I heard Roy Ferrill. I went ahead and requested discovery. I have done that, but I was under the impression I didn't have a jury trial tomorrow and was under the impression I was not going to represent Mr. Walker. I now find out he does not have an attorney, and it's too short of notice to pursue trial.
The State's response was:
The State's response is, your Honor, I understand the position Mr. Lancaster is in; and I hate to put a lawyer in that; but I don't think it was the State that put him in that situation. It was the defendant, because the defendant's been telling us every term of court that Mr. Ferrill was going to represent him; and if he's allowed to do that, he could get it put off and put off and put off. If he comes up and says, "I've got a lawyer"; and then the lawyer doesn't show up and get it continued every time.
¶ 7. The trial judge evidently agreed that the defendant was largely at fault for the confusion over who was representing him and in denying Lancaster's motion for a continuance stated,
*200 [This] court's not going to be put in the position of letting defendants jock the Court's docket by saying they have lawyers when they don't or swapping lawyers around. Mr. Lancaster is a very capable, competent defense lawyer; so we'll proceed right on. I deny your motion for continuance.
¶ 8. The record before this Court forms the sole source of information about this matter. After thorough review of the record, we cannot find an order appointing Lancaster to represent Walker, or for that matter his codefendant, Marshall. As such, the record does not support the trial judge's conclusion that Walker was attempting to "jock the court's docket." Regardless of what Walker was telling the court in the months prior to trial, the prudent procedure was for the trial court to enter an order formally appointing Lancaster as counsel for Walker until such time as an order is entered relieving Lancaster of his duties and substituting new counsel. Lancaster's role in the defense of Walker first surfaces in the record when he filed a motion to be relieved as counsel for Marshall on January 26, 1996. Within said motion, Lancaster acknowledged that he was "the appointed attorney for both Tyrone Marshall and Calvin Walker." From this pleading, it is apparent that Lancaster was acknowledging assumption of the defense of Walker at least six months in advance of trial. We recognize, from the remarks of the State and the trial judge, that Walker had led everyone to believe that he was going to retain another attorney to represent him at trial. While we empathize with the plight of Lancaster, we are bound by the record before us. Given the circumstances and the inadequacy of the record, we cannot say that the trial judge abused his discretion in denying Walker's motion for a continuance.
II. THE LOWER COURT ABUSED ITS DISCRETION WHEN IT FAILED TO GRANT WALKER'S MOTION FOR A SEVERANCE.
¶ 9. Walker was tried with Tyrone Marshall, the alleged go-between or runner between Walker and the undercover agent purchasing the cocaine. On the day of trial, Walker's attorney moved ore tenus for a severance, which was denied. No written motion appears in the record nor, apparently, was there any argument concerning this motion. Mississippi's Uniform Rules of Circuit and Chancery Court Practice 9.03 provides in relevant part that "[t]he granting or refusing of severance of defendants in cases not involving the death penalty shall be in the discretion of the trial judge." As noted supra, Lancaster was never relieved as Walker's counsel. Given this fact and the untimeliness of the motion, we find that the trial judge was acting within his discretion in denying Walker's motion for severance made before the trial began.
¶ 10. Although the trial judge was correct in denying Walker's untimely pretrial motion for severance, events transpired during the trial which require further examination to determine whether the issue of severance should have been reconsidered by the trial judge or, alternatively, whether Walker was denied his right to a fair trial. We now decide whether reversal is required because of statements made by Marshall's counsel in his opening statement and seized upon by the State during the cross-examination of Walker.
¶ 11. Marshall's attorney began by flatly stating that Calvin Walker was guilty of dealing cocaine:
My client [Marshall] goes to Calvin and says, "Two of these fellows here wants some crack cocaine." Calvin says, "Look, would you take this over there to them?" He said, "Look, I don't deal in this sort of stuff; and I never have." He said, "Look, just do me a favor"; so what he did was dumb. He took the cocaine from Calvin, went to the narcotics agent, gave him the cocaine. The narcotics agent gave him $40. He takes the $40 back to Calvin, and he leaves, and he never hears another thing until after he's indicted.
Essentially, Marshall's position was that he was unwittingly caught in between Calvin Walker and the undercover agent and was merely trying to do Walker a "favor" by taking the drugs over to the car.
¶ 12. The State seized on the statements of Marshall's counsel, and hammered Walker, testifying on his own behalf, with this apparent tacit admission of guilt by his co-defendant, *201 and despite vociferous objection from Walker's attorney, the trial court allowed the prosecutor to treat Marshall's attorney's opening statement as if it were direct testimony by Marshall against Walker:
A. [Walker] I don't sell drugs.
Q. [District attorney] Why would he [Marshall] say that you are in the drugs business with him?
A. I didn't hear him say it.
BY MR. LANCASTER: Objection. He's not said that, and that's an improper question even on cross.
BY THE COURT: He's on cross examination, and I'm going to let him answer.
BY MR. LANCASTER: We ask it be made continuing for the record.
BY THE COURT: All right.
Q. You heard Mr. Burns [Marshall's attorney] in opening statement say that Mr. Marshall came over to you at Pickens One Stop.
BY MR. LANCASTER: Objection.
BY THE COURT: All right.
BY MR. LANCASTER: That's not the testimony.
BY THE COURT: I understand that. The objection is overruled. You can go ahead, Mr. Hood.
Q. Do you want me to ask the question again? If Mr. Marshall were to get up here and testify that he came over to you, and you gave him two rocks of crack, and he took it out there to a car, he would be telling the truth, wouldn't he?
* * * * * *
Q. For somebody you've never had any problems with, it appears that they wouldn't get up here and tell a lie on you. Isn't that true?
A. Excuse me?
Q. For somebody you've never had any trouble with, why would he get up here and tell a lie on you?
A. He hadn't been up here and told no lie.
Q. If he were to say that he came over to you and got the dope, would that not be true?
A. If he were to say it?
Q. Yes.
A. It wouldn't be. If he said he got it from me, it wouldn't be true.
Q. You're saying he would be lying, right?
A. Right, because I don't deal in drugs.
¶ 13. First, the State argues that Walker failed to make a contemporaneous objection to the statements made by Marshall's counsel during opening argument. Generally, the failure to make a contemporaneous objection at trial waives the issue on appeal. Holland v. State, 656 So.2d 1192, 1197 (Miss.1995). In the instant case, the question is whether Walker's counsel even had a basis on which to interpose an objection during Marshall's opening statement. At that time, Marshall's counsel was supposed to be stating what he expected the evidence to show. Marshall pursued an entrapment theory during the first part of trial. However, that theory along with his defense of ignorance, was abandoned when Marshall failed to introduce any evidence supporting either defense at trial. Walker's counsel did pose an objection when the State attempted to use the statements of Marshall's counsel as substantive evidence of Walker's guilt. Finding that this issue has been properly preserved for review, we now address the merits of Walker's claim.
¶ 14. In essence the prosecutor was allowed to use the statements made by Marshall's counsel in his opening as substantive evidence against Walker. The cross-examination of Walker was centered almost entirely around the comments made by his codefendant's counsel during opening statements. The prosecutor's questions were phrased in such a manner to import to the jury that Marshall, himself, had made the statements against Walker. In fact, Marshall never testified at trial.
¶ 15. The State argues that the "testimony" of Marshall did not exculpate him at Walker's expense. While this argument is true only because Marshall did not *202 testify, the comments of Marshall's counsel clearly portrayed Marshall as innocent of any crime and cast Walker as the sole guilty party. Severance is necessary when "the testimony of one co-defendant tends to exculpate that defendant at the expense of the other defendant and whether the balance of the evidence introduced at trial tends to go more to the guilt of one defendant rather than the other." Tillman v. State, 606 So.2d 1103, 1106 (Miss.1992)(citing Hawkins v. State, 538 So.2d 1204, 1207 (Miss.1989); Duckworth v. State, 477 So.2d 935, 937 (Miss. 1985); Johnson v. State, 512 So.2d 1246, 1254 (Miss.1987)).
¶ 16. Further compounding the problem was the fact that the trial court allowed the State to go outside the evidence in cross-examining Walker. There was no evidentiary basis for the State's questioning of Walker. Essentially, the State was allowed to introduce a "statement" from Marshall which inculpated Walker without affording Walker the opportunity to confront the maker of the statement. Introduction of such evidence denied Walker his right to confront witnesses against him. See Langston v. State, 373 So.2d 611 (Miss.1979).
¶ 17. Although the trial judge was within his discretion in denying Walker's pre-trial motion for a severance, Walker's defense was nonetheless seriously prejudiced by Marshall's attorney's actions during the opening statement, and insult was added to injury when the State was permitted to cross-examine him on facts not in evidence. The trial judge committed reversible error by allowing the State to continue that line of questioning.
III. THE TRIAL JUDGE DID NOT COERCE THE JURY VERDICT
¶ 18. Walker also contends that the trial judge improperly coerced the jury into returning a verdict of guilt as to Calvin Walker. Obviously, as this case is reversed and remanded on issue II, we do not reach this issue. In the interests of consistent application of a state procedural bar, however, we will briefly address Walker's contention.
¶ 19. Failure to raise a contemporaneous objection to the judge's instruction procedurally bars Walker from arguing this issue on appeal. Berry v. State, 703 So.2d 269, 281 (Miss.1997); Holland v. State, 705 So.2d 307, 352 (Miss.1997)("[T]he issue [was raised] for the first time in the motion for new trial; thus, the objection comes too late."); See also Brantley v. State, 610 So.2d 1139, 1140-41 (Miss.1992)(defense moved for mistrial after court's remarks to deadlocked jury); Murphy v. State, 426 So.2d 786, 791 (Miss.1983) (defense objected and moved for mistrial immediately after jury returned to jury room).
IV. THE VERDICT IS NOT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.
¶ 20. Walker's final contention is that the verdict of guilt is simply not supportable on the evidence because no witness actually saw the drug exchange. Although we do not formally reach this issue, we note in passing that this contention is without merit.
Addressing the issue of sufficiency of the evidence requires a review of the evidence to determine whether or not a reasonable, hypothetical juror could find, beyond a reasonable doubt, that the defendant is guilty. The evidence favorable to the State is accepted as true, and the State is given the benefit of all reasonable inferences flowing from that evidence.
Jackson v. State, 614 So.2d 965, 972 (Miss.1993)(citing Hammond v. State, 465 So.2d 1031, 1035 (Miss.1985); Groseclose v. State, 440 So.2d 297, 300 (Miss.1983); Harveston v. State, 493 So.2d 365 (Miss.1986)).
¶ 21. Here, a rational jury could easily and rationally infer from investigator Johnson's testimony that the "exchange" between Walker and Marshall was in fact the exchange of the crack cocaine in light of the circumstances of this case. Even though Marshall did not see the material exchanged, his eyewitness testimony creates a reasonable inference that Walker gave Marshall the two rocks of cocaine which Marshall brought back to the investigators. This issue is without merit.
CONCLUSION
¶ 22. In conclusion, it was error for the lower court to permit the State to seize upon the statements made by Marshall's counsel *203 and use them against Walker as if Marshall had actually testified to the assertions. Walker's remaining assignments of error are without merit.
¶ 23. REVERSED AND REMANDED.
SULLIVAN and PITTMAN, P.JJ., and BANKS, McRAE, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur.
PRATHER, C.J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599398/ | 729 So.2d 689 (1999)
Harrell L. LOUP, Jr.
v.
The LOUISIANA STATE SCHOOL FOR THE DEAF, et al.
No. 98 CA 0329.
Court of Appeal of Louisiana, First Circuit.
February 19, 1999.
*690 Thomas H. Kiggans, Darrell J. Loup, Karleen Joseph, Phelps Dunbar, L.L.P., Baton Rouge, LA, for Plaintiff-Appellee Harrell L. Loup, Jr.
*691 Margot A. Fleet, Louisiana Department of Education, Baton Rouge, LA, for Defendant-Appellant Department of Education Louisiana School for the Deaf.
BEFORE: LeBLANC, FOGG, and PARRO, JJ.
PARRO, J.
The Louisiana Department of Education appeals two trial court judgments, one awarding contractual damages and one awarding attorney fees to Harrell J. Loup, Jr, based on his discharge from summer employment with the Louisiana State School for the Deaf. Mr. Loup answered the appeal, seeking increased attorney fees for the appeal, along with statutory penalties.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Loup, a teacher and coach with the Louisiana State School for the Deaf (the school) for over twenty years, signed a written agreement to work during the summer of 1997, providing one-on-one tutoring for a particular student. The student was involved in legal proceedings and had a history of problem behavior, so there was some question about whether he would attend the full summer session. Loup had the opportunity to travel with his family during this time period, and he would have to give up that trip in order to tutor this student. Therefore, before agreeing to take the job, Loup sought and obtained assurances from Carol Bell, the woman supervising the Extended School Year Program (ESYP), that he would have a full four weeks of employment, four days each week, even if the student showed up for just one day of tutoring. The agreement, called a "Statement of Understanding," which was signed by Loup and the school's superintendent, Luther B. Prickett, assigned Loup to work during the ESYP for "16 days 7/7/97 - 7/31/97." The agreement did not specify a payment schedule, but Loup, Bell, and Prickett agreed the rate of pay for ESYP was always the teacher's daily rate, which for Loup was $216.80 per day.
The student Loup was to tutor participated in the program only two days, after which he was required to undergo a mental health evaluation and did not return. Bell assigned Loup to some other work on July 9, 1997, but later that day, she told him the superintendent had ordered her to discharge him as of 3:30 that afternoon. Loup immediately asked to meet with Prickett, but Prickett was not available to discuss Loup's discharge until the following Monday. At a meeting that morning, Loup asked Prickett to honor the contract by assigning him to work for the full sixteen days, explaining the assurances he had been given by Bell. However, Prickett declined, stating the agreement was not a contract, but merely a statement of understanding to memorialize the superintendent's discretion to employ Loup for one day or three days or the full ESYP term shown. The reference to sixteen days in the document merely defined the term of the ESYP, and was not a guarantee of work for that entire period. Prickett did not offer Loup any other work, although Loup offered to take some other assignment for the remainder of the month.
Thereafter, Loup made a written demand on Prickett and the school through his attorney, seeking work pursuant to the agreement and full payment of sixteen days' wages in the amount of $3,468.80. He was eventually assigned four additional days of work at the end of July and was paid $1,517.60 for seven days of work. The school offered Loup additional work the first week in August, but he refused because he had made a deposit on accommodations for a family vacation that week and was not willing to forfeit it, having already foregone one trip with his family. On August 1, Loup made a formal written demand for the rest of his wages for the full sixteen days on or before the next regular payday, which was August 15, 1997. This demand was rejected and the school, through counsel for the Louisiana Department of Education (the department), advised him the agreement would not be honored.
On September 10, 1997, Loup filed this suit against the department, the school, and Prickett, in his capacity as superintendent of *692 the school.[1] His suit requested nine days' wages in the amount of $1,951.20, plus legal interest from August 15, 1997, until paid. He also asked for penalty wages and attorney fees, pursuant to LSA-R.S. 23:632, and court costs. Under the authority of LSA-R.S. 23:631, which allows a claimant to proceed "pursuant to Code of Civil Procedure Article 2592," the matter was handled as a summary proceeding. After hearing testimony from Loup, Bell, and Prickett, the court found there was a contract calling for sixteen days' pay at Loup's average daily wages of $216.80 per day. On November 13, 1997, the court signed a judgment against the school and Prickett, awarding Loup the balance of the wages claimed ($1,951.20), plus legal interest through the date of the hearing ($42.63), continuing interest until paid ($.49 per day), and court costs ($440.00). In oral reasons, the court found the school's failure to pay was due to a good-faith dispute and the judgment denied statutory penalties and attorney fees. At a hearing on a motion for new trial, the court awarded attorney fees in the amount of $5,000, plus legal interest from December 2, 1997, the date of this judgment, until paid. This appeal of both judgments followed.
APPLICABLE LAW
A contract is an agreement by two or more parties whereby obligations are created, modified, or extinguished. LSA-C.C. art. 1906. A contract is formed by the consent of the parties through offer and acceptance, which can be made orally or in writing. LSA-C.C. art. 1927. Nominate contracts, those given a special designation such as sale, lease, loan, or insurance, are subject to special rules when those rules modify, complement, or depart from the general rules governing contracts. LSA-C.C. arts. 1914 and 1916. Hiring the services of another person is a form of lease. LSA-C.C. art. 2745; O'Neal v. Chris Steak House, Inc., 525 So.2d 325, 327 (La.App. 1st Cir.1988), writ not considered, 530 So.2d 556 (La.1988). For a contract of lease to be valid, there must be a thing, a price, and consent. LSA-C.C. art. 2670. If, without any serious ground of complaint, a man should send away a laborer whose services he has hired for a certain time, before that time has expired, he shall be bound to pay to such laborer the whole of the salaries which he would have been entitled to receive, had the full term of his services arrived. LSA-C.C. art. 2749; Prevost v. Eye Care and Surgery Ctr., 93-1016 (La.App. 1st Cir.4/8/94), 635 So.2d 765, 767, writ denied, 94-1214 (La.7/1/94), 639 So.2d 1168.
Louisiana Revised Statutes 23:631 imposes a duty upon the employer, upon discharge or resignation of any employee, to pay the employee the amount then due under the terms of the employment, whether the employment is by the hour, day, week, or month, not later than three days following the date of discharge or resignation. LSA-R.S. 23:631; Cochran v. American Advantage Mortgage Co., Inc., 93-1480 (La.App. 1st Cir.6/24/94), 638 So.2d 1235, 1239. Any employer who fails or refuses to comply with the provisions of LSA-R.S. 23:631 shall be liable to the employee either for ninety days' wages at the employee's daily rate of pay, or else for full wages from the time the employee's demand for payment is made until the employer shall pay or tender the amount of unpaid wages due to such employee, whichever is the lesser amount of penalty wages. LSA-R.S. 23:632. However, where there is a good-faith question of whether the employer actually owes past due wages to the discharged employee, the employer's resistance to payment of wages will not trigger the imposition of penalty wages. Henderson v. Kentwood Spring Water, Inc., 583 So.2d 1227, 1232 (La.App. 1st Cir.1991).
Reasonable attorney fees shall be allowed the employee by the court in the event a well-founded suit for any unpaid wages whatsoever be filed by the employee after three days shall have elapsed from the time of making the first demand following discharge or resignation. LSA-R.S. 23:632. *693 The award of reasonable attorney fees is mandatory when an employee brings a "well-founded" suit for unpaid wages, irrespective of any equitable defenses that may be raised by the employer. Suits in which the recovery of back wages is granted are considered "well-founded." Reasonable attorney fees are to be awarded in the event the employee files a well-founded suit for unpaid wages, even if penalty wages are not due. Wilson v. Inessa Stewart's Antiques, Inc., 96-2767 (La. App. 1st Cir.2/20/98), 708 So.2d 1132, 1135, writ denied, 98-0777 (La.5/8/98), 718 So.2d 435.
In order to fall within the purview of these statutes, the amount sought by the plaintiff must be due as wages under the terms of employment and must be payable by the hour, day, week, or month. Boudreaux v. Hamilton Medical Group, Inc., 94-0879 (La.10/17/94), 644 So.2d 619, 621-22. A trial court's findings of fact with regard to whether the plaintiff is entitled to penalty wages cannot be reversed on appeal in the absence of manifest error or unless clearly wrong. Pokey v. Five L. Investments, Inc., 96-0018 (La.App. 1st Cir.1996), 681 So.2d 489, 492.
ANALYSIS[2]
In this appeal, the department asserts the trial court erred in the following particulars: (1) ruling that the Statement of Understanding is a contract; (2) awarding specific performance as damages; (3) failing to require Loup to mitigate his damages;[3] (4) ruling that Loup relied to his detriment on the school's promise of work; (5) awarding attorney fees; and (6) awarding excessive attorney fees.
The department argues that the Statement of Understanding is not really a contract; the only contracts entered into with the employees are those detailing the terms of their employment during the regular school year. The Statement of Understanding is used only to clarify that any compensation paid to a teacher for additional work, such as that performed during the ESYP, does not form a part of his basic compensation for purposes of percentage increases. Prickett testified he considered that this agreement merely allowed him to utilize Loup's services for any number of days during the sixteen-day term of the ESYP, but did not require him to provide work for the entire term. However, he admitted he would have considered Loup in breach of the agreement if Loup had decided to work for only one or two days, and then to take a day or two off to go fishing. Bell testified she told Loup if the student showed up for only one day of the ESYP, Loup would still be employed for the full term. According to Loup, Bell assured him when he agreed to take the assignment that, as the ESYP supervisor, she had the authority to make this representation. Indeed, Bell's actions evidence her intention to abide by this agreement, since she reassigned Loup to other work when the student was no longer in the program. Loup testified he would not have signed the agreement if it had said, "up to sixteen days" of ESYP.
We find no error in the trial court's finding that the Statement of Understanding was a contract of employment for a specific term. The parties agreed that Loup would work for sixteen days during the ESYP from July 7 to July 31, 1997. Although the price was not stated in the written agreement, both parties testified it was understood that the wages to be paid would be the same as Loup's daily rate during the regular school year. In fact, he was paid this amount, $216.80 per day, for the seven days he did work during this period. Accordingly, the three elements for a contract of lease of services were met.
Despite the department's contention in its second assignment of error, the court did not *694 award specific performance as damages. The court awarded wages for the full term stated in the contract, as required by Article 2749 of the Louisiana Civil Code. Prickett testified he did not know of any problems with Loup's performance during the three days he worked before being discharged. Accordingly, since Loup's services were terminated without any serious ground of complaint, the school was obligated to pay him the entire salary he would have earned, had he been allowed to continue working.
The department also claims the court erred in ruling that Loup relied to his detriment on the school's promise of work. In summarizing the testimony before making its ruling, the court stated, "Mr. Loup blocked out 16 days of working from his time during the summer, and he expected to go to work.... Mr. Loup changed his position in reliance on this contract that he would be working." The three elements required for application of detrimental reliance or equitable estoppel are: a representation by conduct or work; justifiable reliance thereon; and a change of position to one's detriment because of the reliance. LSA-C.C. art.1967; Eicher v. Louisiana State Police, Riverboat Gaming Enforcement Div., 97-0121 (La.App. 1st Cir.2/20/98), 710 So.2d 799, 804, writ denied, 98-0780 (La.5/8/98), 719 So.2d 51. While the court's musings do suggest elements of detrimental reliance, the court did not base its ruling on this theory, which is an alternative to a contract that can create an enforceable obligation. Rather, the court here found a contract did exist, and awarded damages for the breach of this particular kind of contract.
Finally, the department contends attorney fees should not have been awarded and, even if this court finds such an award was proper, the fees were excessive. We disagree with both arguments. In addition to the Civil Code articles applicable to the lease of services, the legislature has enacted specific statutes to protect employees when their employment terminates for any reason. Under LSA-R.S. 23:631, the wages due to an employee must be paid in full within three days of his discharge or resignation. The employer's failure to make such payment subjects him to the penalties imposed under LSA-R.S. 23:632, which include penalty wages and reasonable attorney fees. If an employee is required to bring suit to enforce his right to unpaid wages, and if that suit is well-founded, an award of attorney fees "shall be allowed the laborer or employee by the court...." LSA-R.S. 23:632. If any award of unpaid wages is made by the court, the suit is considered "well-founded," even if some equitable defense precludes the award of penalty wages. Accordingly, the court did not err in awarding attorney fees in this case. Moreover, having examined the itemized statement showing the work done by Loup's attorneys in this case, we conclude the court did not err in finding those fees were reasonable, as required by the statute.
Accordingly, we find no merit in the department's assignments of error. Loup answered the appeal, seeking additional attorney fees for the appeal. Additional attorney fees are usually awarded on appeal when a party appeals, obtains no relief, and the appeal has necessitated additional work on the opposing party's counsel, provided that the opposing party appropriately requests an increase. Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736, 740 (La.App. 1st Cir.), writ denied, 553 So.2d 466 (La.1989). Although many of Loup's well-briefed arguments were also presented to the trial court, the briefs did include additional arguments to address the department's assignments of error, and Loup's attorneys did appear for oral argument. Accordingly, we award an additional $1000 for the work necessitated by this appeal.
In his answer to the appeal, Loup also requested this court to award penalty wages in accordance with LSA-R.S. 23:632. We decline. The school clearly did not fully understand the import of its wording on the Statement of Understanding. We do not believe Prickett and the school were being arbitrary or in bad faith in deciding there were no wages owed for the time Loup did not work. Generally, this would be a justifiable conclusion. However, because the wording of the contract established a fixed period of employment and Loup was willing to work the entire period, his discharge in *695 the absence of complaints concerning his performance justified wages for the entire period. A trial court's determination of whether an employer is arbitrary or in bad faith for purposes of imposing penalty wages is a question of fact and is, therefore, subject to the manifest error standard of review. Barrilleaux v. Franklin Foundation Hosp., 96-0343 (La.App. 1st Cir.11/8/96), 683 So.2d 348, 360, writ denied, 96-2885 (La.1/24/97), 686 So.2d 864. We conclude the evidence supports the trial court's conclusion and, viewed in the context of the entire record, it was not manifestly erroneous.
CONCLUSION
The trial court's judgment regarding attorney fees is amended to add $1000 for the appeal, plus interest on that amount from the date of this judgment until paid. In all other respects, the judgments are affirmed. All costs of this appeal, in the amount of $726.23, are assessed against the department.
AMENDED AND, AS AMENDED, AFFIRMED.
NOTES
[1] The petition actually named "a yet to be identified state agency and/or entity legally responsible" for the school's obligations. A response was filed by the department on behalf of "Defendants, the Louisiana State School for the Deaf." The judgment shows the department's general counsel represented both the school and Prickett, in his capacity as superintendent of the school.
[2] We note that the motions for appeal show the appellant is the Louisiana State Department of Education. The motions do not say on whose behalf the department is appealing, whether just for the school or also on behalf of Prickett, in his capacity as superintendent. However, the judgments indicate the department's attorney was representing both defendants. Accordingly, we will treat the department's appeals as having been entered on behalf of the school and Prickett.
[3] This assignment of error was not briefed, so it is considered abandoned, pursuant to Uniform Rules, Courts of Appeal, Rule 2-12.4. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599401/ | 729 So.2d 1146 (1999)
Asuncion McCARTY
v.
Moss McCARTY, Jr.
No. 98-CA-2270.
Court of Appeal of Louisiana, Fourth Circuit.
March 31, 1999.
Lindsey M. Ladouceur, Ladouceur and Ladouceur, L.L.C., New Orleans, LA, Attorney for Plaintiff/ Appellant.
Nancy C. Chachere, New Orleans, LA, Attorney for Defendant/Appellee.
Court composed of Judge MOON LANDRIEU, Judge PATRICIA RIVET MURRAY, Judge Pro Tempore JAMES A. GRAY, II.
JAMES A. GRAY, II, Judge Pro Tem.
The plaintiff, Asuncion Pellitero McCarty, appeals from the trial court's judgment awarding permanent alimony in the amount of $700 per month for a period of eighteen months.
FACTS
The plaintiff, Asuncion Pellitero McCarty ("Asuncion"), and the defendant, Moss McCarty, Jr. ("Moss"), met in 1972, while Moss was stationed in Spain as a member of the Armed Forces of the United States. They were married in Madrid, Spain on January 17, 1976. Later that same year, the couple moved to the United States. The parties have two daughters, both majors.
On October 2, 1995, the parties physically separated. On May 6, 1996, Asuncion filed a Petition for Divorce pursuant to La.C.C.Art. 103, based on the parties' having lived separate and apart in excess of six months. On June 21, 1996, a consent judgment for divorce was rendered. Asuncion reserved the *1147 right to request post-divorce alimony in the future. The consent judgment contained a clause regarding fault, but the clause was stricken and both parties initialed the line out. The record indicates that pursuant to the parties' consent agreement, read into the record on June 21, 1996, the issue of fault was to be determined at such time when the rule for permanent alimony was decided.
On June 4, 1997, Asuncion filed a Rule for Permanent Alimony. On January 12, 1998, Asuncion filed an ex parte motion for interim order of permanent alimony pending trial. The motion was denied. On March 5, 1998, the matter was tried before the Honorable Lloyd J. Medley, Jr., of the Civil District Court for the Parish of Orleans. On March 18, 1998, Judge Medley rendered judgment, awarding Asuncion "Rehabilitative Support" in the amount of $700.00 per month for an eighteen-month period, beginning April 1, 1998 and ending November 1, 1999.
Asuncion filed her Motion for Appeal on April 21, 1998. Asuncion argues that the trial court erred in awarding permanent alimony for a specified, limited term, and that the amount of permanent alimony awarded by the trial court was insufficient.
In response, Moss argues that the trial court should not have awarded permanent alimony in the absence of a finding that Asuncion was free from fault. Moss also argues that if alimony is awarded, the amount awarded was sufficient.
PERMANENT ALIMONY FOR SPECIFIED, LIMITED TERM
The trial court referred to its award of alimony to Asuncion on March 18, 1998, as "Rehabilitative Support". The award was issued pursuant to La. C.C. art. 112, enacted in 1997 by La. Acts 1078, § 1, effective January 1, 1998. Under the revised law, courts are permitted to award time-limited permanent alimony.[1]
Asuncion contends the trial court erred in awarding her "Rehabilitative Support" pursuant to amended Article 112 because that law did not govern her claim for Rule for Permanent Alimony. We agree.
Asuncion filed her Petition for Divorce on May 6, 1996, and Rule for Permanent Alimony on June 4, 1997. The Legislature specifically provided in Act No. 1078 that the 1997 revision to Article 112 "does not apply to actions for separation from bed and board or divorce or actions for incidental relief commenced before January 1, 1998. ... Such actions are to be governed by the law in effect prior to January 1, 1998."[2] Based on the dates Asuncion filed both the Petition for Divorce and Rule for Permanent Alimony, the award of permanent alimony is governed by the law in effect prior to January 1, 1998.
Under Article 112, prior to the 1997 revision, the trial court is permitted to award either permanent periodic alimony or lump sum alimony, the latter of which requires the consent of both parties. The Supreme Court of Louisiana has frowned upon trial courts' awards of permanent alimony with time limits, i.e. "rehabilitative alimony". In Teasdel v. Teasdel, 493 So.2d 1165, 1166 n. 1 (La. 1986), the Court recognized that there is no specific provision in Louisiana law for "rehabilitative alimony".
In Hegre v. Hegre, 483 So.2d 920 (La. 1986), the Court distinguished permanent periodic alimony from lump sum alimony. In its interpretation of Article 112, the Court recognized that permanent periodic alimony is alimony paid periodically rather than terminated after a certain period. Id. at 921-922. It further held that to place a time limit on the award would improperly shift the burden of proof from the obligor spouse to the recipient spouse to show that permanent alimony is still needed. Id. at 924. The court further recognized that a lump sum award may be appropriate, but the language of the statute requires the consent of both *1148 parties. Id. at 924-925, n. 12. In this case, the record does not indicate consent to a lump sum award by either party. Therefore, we conclude the award was not proper under the law in effect at the time Asuncion initiated these proceedings.
The Courts of Appeal of Louisiana have been bombarded with this issue over the years and are guided by the Supreme Court's interpretation of the Article.[3] In Hackett v. Hackett, 591 So.2d 1281, 1285 (La.App. 3d Cir.1991), writ denied, 592 So.2d 1339 (La.1992), the court reversed the one-hundred-eighty-day time limit imposed by the trial court. The court stated its decision was based upon the Supreme Court's decisions in Teasdel and Hegre. In Martin v. Martin, 573 So.2d 620 (La.App. 2d Cir.1991), the court reversed the time limitation imposed by the trial court, holding that there was no statutory authority for imposing the limit. Id. at 623-624. In 1996, the Fifth Circuit Court of Appeal, relying on Hegre, reversed the trial court's award of alimony, which included a twenty-four month time limit. Thibodeaux v. Thibodeaux, 95-671, p. 9 (La.App. 5th Cir. 1/30/96), 668 So.2d 1269, 1273 writ not considered, 96-0549 (La.4/19/96), 671 So.2d 930.
Based upon the lack of statutory authority for imposing time limitations upon permanent periodic alimony and the guidance provided by the Supreme Court, we must reverse the trial court's judgment imposing such a time limit in the present case.
FAULT DETERMINATION
Moss contends that the trial court awarded permanent alimony to Asuncion without properly adjudicating the issue of fault. Asuncion argues that she satisfied her burden of proof at trial and established she was free from fault.
In determining whether or not an award of permanent alimony is warranted, the trial court must first determine if the claimant spouse is free from fault in the dissolution of the marriage.[4] "To constitute fault sufficient to deprive a spouse of permanent alimony, the spouse's misconduct must not only be of a serious nature, but it must also be an independent, contributory, or proximate cause of the [dissolution of the marriage]". Baxter v. Baxter, 607 So.2d 823, 825 (La.App. 1st Cir.1992); Steib v. Steib, 469 So.2d 20, 21 (La.App. 1st Cir.1985); Thibodeaux, supra at p. 5, 668 So.2d at 1272.
The language of the article clearly places the burden of establishing freedom from fault on the claimant spouse, Asuncion. As with any factual finding, a trial court's findings of fact relative to the issue of fault in domestic cases are entitled to real weight and will not be overturned on appeal absent manifest error. See Michelli v. Michelli, 93-2128, p 13 (La.App. 1st Cir. 5/5/95), 655 So.2d 1342, 1350; Rochon v. Rochon, 97-294 (La. App. 3d Cir.10/8/97), 702 So.2d 899. As such, courts have given great weight to the trial court's findings of fact on the issue.
The transcript of the hearing held on March 5, 1998, reflects that both parties alluded to the issue of fault only in passing. Asuncion alleged Moss molested their daughters and that was why she divorced him. Moss alleged it was Asuncion's constant blaming him for things that went wrong in the marriage as well as their arguing that led to the eventual break up. The judgment rendered on March 18, 1998 is silent with respect to fault. The trial judge did not specifically state that there was no legal fault on the part of Asuncion.
After a careful review of the record, we find that we are unable to determine whether or not the trial judge found Asuncion to be free from fault in the dissolution of the marriage. We believe the parties' allegations of fault at trial are insufficient to make such a factual determination. It is not clear that *1149 Asuncion even attempted to satisfy her burden given the fact that her one comment on fault was made on cross-examination. Further, nothing in the record reveals her character and behavior as a wife during the twenty-two years of the marriage. We find that the trial judge is in the best position to make this determination. Thus, we remand this issue to the trial court for a specific ruling as to Asuncion's establishment of freedom from fault.
SUFFICIENCY OF AMOUNT AWARDED
Asuncion contends that the trial court's award of $700.00 per month is insufficient to provide her with the basic necessities of life. Alternatively, Moss asserts that the amount awarded by the trial court was not an abuse of discretion. He contends that since the couple's major daughters reside in the house with Asuncion and contribute to the household expenses, the $700.00 per month award is sufficient.
The trial court has much discretion in fixing the amount of alimony, and the award will not be disturbed unless there is a clear showing of abuse of discretion. Hegre v. Hegre, 483 So.2d 920, 925 (La.1986); Guillory v. Guillory, 626 So.2d 826, 832 (La.App. 2d Cir.1993). Based upon our finding of error in the trial court's award of "rehabilitative support" and our inability to rule on the issue of fault in this matter because of insufficient evidence in the record, we decline to rule on the sufficiency of the award at this time.
CONCLUSION
For the foregoing reasons, we remand this case to the trial court.
REVERSED AND REMANDED.
NOTES
[1] La. C.C. art. 112 now provides in part: ("A. The court must consider all relevant factors in determining the entitlement, amount, and duration of final support ....") (emphasis added). The inclusion of the word "duration" allows the court to award rehabilitative support and other forms of support that terminate after a set period of time. See La. C.C. art. 112, Revision Comment (c).
[2] La.R.S. 9:386, enacted by 1997 La. Acts 1078, § 4.
[3] The language of Revision Comment (c) supports the Supreme Court's interpretation of Article 112 in Hegre and Teasdel. Specifically, the language of the comment provides "the 1997 revisions to Articles 111 and 112 were intended to legislatively overrule Hegre and Teasdel".
[4] Prior to the 1997 amendment, Louisiana Civil Code art. 112 provided in pertinent part: "A. (1) When a spouse has not been at fault and has not sufficient means for support, the court may allow that spouse, out of the property and earnings of the other spouse, permanent periodic alimony which shall not exceed one-third of his or her income." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599408/ | 3 So.3d 1239 (2009)
In re AMENDMENTS TO FLORIDA RULE OF JUVENILE PROCEDURE 8.255.
No. SC08-1236.
Supreme Court of Florida.
February 27, 2009.
Herbert Baumann, Jr., Chair, Steering Committee on Families and Children in the Court, Thirteenth Judicial Circuit, Tampa, FL, for Petitioner.
Dennis W. Moore, General Counsel, Kristen Krueger-Griswold, Deputy General Counsel, Statewide Guardian Ad Litem *1240 Office, Tallahassee, FL, and Thomas Wade Young of Dempsey and Associates, P.A., for Statewide Guardian Ad Litem Office, Winter Park, FL, on behalf of The Guardian Ad Litem Program; and David Neal Silverstein, Chair, Juvenile Court Rules Committee, Tampa, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, on behalf of the Juvenile Court Rules Committee, Responding with comments.
PER CURIAM.
This matter is before the Court for consideration of proposed amendments to the Florida Rules of Juvenile Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.
The Steering Committee on Families and Children in the Court (Steering Committee) has filed a petition seeking to amend Florida Rule of Juvenile Procedure 8.255, General Provisions for Hearing. The petition was filed in conjunction with the Steering Committee's Report containing administrative recommendations in response to the charges given to the Steering Committee in the Court's August 30, 2006, administrative order. In re Steering Committee on Families and Children in the Court, Fla. Admin. Order No. AOSC06-30 (Aug. 30, 2006) (on file with Clerk, Fla. Sup.Ct.). The Steering Committee was charged with, among other things, "[e]xamin[ing] the role of courts in dependency cases in which children leave the foster care system without a permanent family, such as when the child reaches adulthood and `ages out' of the foster care system." Id. at 2. Additionally, the Steering Committee was asked to "develop recommendations for courts handling these cases and formulate an action plan for implementing those recommendations by the court system." Id.
The Steering Committee's proposed amendment to rule 8.255 would require a child who is in licensed foster care or foster care with "another planned permanent living arrangement" goal, and who is at least sixteen years old, to attend all court hearings, unless the child's presence is excused based on a showing of good cause. The amendment also would permit any party to file a motion to excuse the presence of the child. The Steering Committee states that the proposed amendment is intended to implement section 39.701(6)(a), Florida Statutes (2008). That section requires the court in dependency proceedings to hold a judicial review hearing within ninety days after a child's seventeenth birthday and requires that the child "be given the opportunity to address the court with any information relevant to the child's best interests, particularly as it relates to independent living transition services." § 39.701(6)(a), Fla. Stat. (2008). The Steering Committee states that current court practices vary as to whether children appear at dependency case hearings, including judicial review hearings. In support of its proposal, the Steering Committee asserts that a child's personal appearance in court affords the best opportunity for the court to carry out legislative intent under section 39.701(a)(1)-(10), Florida Statutes (2008), that children who are "aging out" of the dependency system are receiving appropriate services and are prepared for adulthood. The Steering Committee states that its proposal requires court attendance by children who are at least sixteen in order to ensure that the age group specified in section 39.701(6)(a) is able to meaningfully "address the court" as anticipated by the statute.
The Steering Committee's proposed amendment to rule 8.255 was published for *1241 comment, and two comments were filed, one from the Statewide Guardian Ad Litem Office (GAL) and one from the Juvenile Court Rules Committee (Rules Committee). The Steering Committee, the GAL, and the Rules Committee also participated in oral argument in this case, which was held on February 3, 2009.
After consideration of the Steering Committee's proposal, the comments, and the parties' presentations at oral argument, we decline to adopt the amendment to rule 8.255. Rule 8.255 already recognizes a child's right to be present at hearings in dependency cases regardless of the child's age, and while we agree with the Steering Committee that, in many instances, a child's presence and meaningful participation in dependency proceedings is critical, the Legislature has already clearly spoken with regard to the issue the Steering Committee seeks to address. Section 39.701(6)(a) requires the court in dependency proceedings to hold a judicial review hearing within ninety days after a child's seventeenth birthday and continue to hold timely judicial review hearings thereafter. § 39.701(6)(a), Fla. Stat. (2008). Further, at each judicial review hearing held under section 39.701(6)(a), the statute requires that "the child shall be given the opportunity to address the court with any information relevant to the child's best interests, particularly as it relates to independent living transition services." Id. In addition, the Department of Children and Family Services must provide the court with written verification that the child "[h]as been encouraged to attend all judicial review hearings occurring after his or her 17th birthday." § 39.701(6)(a)(10), Fla. Stat. (2008). The Steering Committee's proposal is at variance with these clear provisions, and thus, we decline to adopt it.
Although we decline to adopt the proposed amendment, we agree with the Committee's well intended goal of increasing appropriate attendance and meaningful participation of youth in dependency proceedings, especially those "aging out" of the system and preparing for independent living. We would also encourage those involved in the dependency process to seek legislative action to further this goal. We also thank the Steering Committee, the Guardian Ad Litem Program, and the Juvenile Court Rules Committee for their tireless service and, specifically, for their invaluable participation in the Court's consideration of these important issues.
It is so ordered.
WELLS, CANADY, POLSTON, and LABARGA, JJ., concur.
PARIENTE, J., dissents with an opinion, in which QUINCE, C.J., and LEWIS, J., concur.
PARIENTE, J., dissenting.
I dissent because I would adopt the proposed rule, with minor modifications, as proposed unanimously by the Supreme Court's Steering Committee on Families and Children in the Court.[1] The rule, which requires the presence of a child who is eligible for independent living and who is at least sixteen years of age, is procedural, does not conflict with any statute, and enhances rather than frustrates the Legislature's commitment to children who *1242 are eligible for independent living services. As the committee states in its petition:
The Steering Committee has considered how best to assist youth who are undertaking the arduous journey from foster children to independent young adults. By amending Rule 8.225 in the manner proposed, courts will be better situated to assist those young people. Moreover, those young people will be better positioned to avail themselves of the services offered to them.
Both the committee and those filing comments regarding the rule, specifically the Office of the Statewide Guardian Ad Litem Program and the Juvenile Court Rules Committee, favor increased participation of youth.[2] In proposing the rule to the Court, the Committee identified "the nonattendance of youth at risk of `aging out' of the foster care system as an issue that impedes the success of youth."
The majority rejects the rule, however, not because it disputes the benefits of increased participation by foster care youth, but rather on the narrow ground that the majority believes it conflicts with the substantive statute. To this end, the majority cites specific portions of chapter 39 which require that (1) a judicial review hearing be held after a child's seventeenth birthday, (2) a child have the opportunity to address the court at the hearing, and (3) the Department of Children and Family Services verify that the child has been encouraged to attend all court hearings occurring after his or her seventeenth birthday. See §§ 39.701(6)(a), 39.701(6)(a)(10), Fla. Stat. (2008). I respectfully disagree.
A procedural rule that requires the child's presence beginning no later than age sixteen effectuates the Legislature's intent "for the Department of Children and Family Services to assist older children in foster care and young adults who exit foster care at age 18 in making the transition to independent living and self-sufficiency as adults." § 409.1451(3)(a), Fla. Stat. (2008). When looking at the statutory framework as a whole, it is clear that the Legislature intended the transition process to begin before the age of seventeen. For example, section 409.1451(3)(b)(1), Florida Statutes, requires that a child age thirteen or older be involved in the development of his or her educational and career path, which is to be reviewed at every judicial hearing as part of the case plan. Further, section 409.1451(4)(c), Florida Statutes (2008), states that a child becomes eligible for subsidized independent living services at the age of sixteen. In addition, a child sixteen years of age or older may choose to remain in foster care, after which the court may approve the child's placement in another planned permanent living arrangement. See § 39.6241(1)(d)(3), Fla. Stat. (2008). Thus, as explained by the committee in its petition, these and a variety of other services are available to sixteen-year-old youth, services that are more likely to be utilized if the child is present at all court hearings.
*1243 The importance of the presence of youth in court before their seventeenth birthday is succinctly explained in the committee's petition:
By the time most youth have reached 17 years of age, the court will likely be conducting only two more judicial review hearings before the youth attains the age of majority.[n. 6] Personal appearance in court by the youth affords the best opportunity for the court to carry out Legislative intent under section 39.701(6)(a)1-10, Florida Statutes, that youth reaching the end of their childhood are receiving services and are being prepared for adulthood.
To wait until a youth reaches the age of 17 to require the youth's presence does not truly effectuate the statute. In actual practice, many youth are not brought to court until after they turn 17, if at all. After appearing in court within 90 days of turning 17, such youth might not appear in court again until a few months prior to reaching the age of majority, when little more can be done to ensure that essential or mandated transitional services have been provided. Moreover, by bringing young adults into court when they are 16 years of age, the court is able to determine that the proper services are already starting to be provided. Youth have more options available at the age of 16 than they do after reaching age 17, such as entering into GED programs and career centers. The decisions that a young person makes while 16 will drive the services required when that person is 17 and older. Therefore, allowing the court direct access to youth in court maximizes the opportunity for meaningful review of the services and training provided to transition the young person successfully to adulthood.
[N. 6] Section 39.701(6)(a), Florida Statutes permits more frequent reviews of the child's status during the year prior to the child's 18th birthday. Such reviews, however, obviously are unable to make up for time and opportunities that are lost to the youth due to services not having been provided.
By proposing the amendment to the rule, the committee furthers our collective goal of taking meaningful steps to maximize the future success of a targeted population within our foster care system.
The micro picture might appear to be insignificant: what difference does it make if the child comes to court to meet face-to-face with the judge? The macro picture is that more than 500,000 American children live in foster care with approximately 24,000 youth "aging out" each year and leaving the foster care system without a support system and at great risk for failure. In 2004 alone, approximately 1300 youth aged out of the Florida foster care system. Madelyn Freundlich et al., Time for Reform: Aging Out and On Their Own, More Teens Leaving Foster Care Without a Permanent Family (The Pew Charitable Trusts, 2007), available at http://www. pewtrusts.org/uploadedFiles/www pewtrustsorg/Reports/Foster_care_reform/ Kids_are_Waiting_TimeforReform0307. pdf. A subcommittee of the Steering Committee also noted that in 2005, more than 4600 youths aged thirteen to eighteen were in Florida's foster care system. Report after report has documented that every year these children, who themselves have been victims of abuse and neglect, leave foster care without completing high school and with significantly greater risk of becoming unemployed, homeless, welfare dependent, incarcerated, ill, and sexually and physically victimized. Deseree *1244 Gardner, Youth Aging Out of Foster Care: Identifying Strategies and Best Practices (Research Division of NACO's (National Association of Counties) County Services Department, Feb. 2008), available at http://www.naco.org/Content/Content Groups/Issue_Briefs/IB-YouthAgingoutof Foster-2008.pdf.
Why do I mention these startling statistics? Because in recognition of this harsh and unnecessary reality, federal legislation has created a framework for assisting youth who are aging out of foster care and each year millions of dollars flow to the states to implement these goals. Id.[3] And undoubtedly the Legislature has passed a host of well-meaning statutes aimed specifically at this targeted population a population whose numbers are small but whose risk for failure without a network of support services is great.[4]
All that the committee attempts to accomplish by proposing this rule is to maximize the chance of success for this very limited population by requiring the attendance of children at hearings concerning their future. As Judge Herbert Baumann, speaking on behalf of the committee, so eloquently stated during oral argument, every year in this State there are approximately 1500 youth who are eligible for independent living services.[5] As he observed, if any one of those 1500 youth was caught committing a delinquent act, that child would be immediately transported to court. No less should be required when the planning of a child's future is involved.
Beyond the fact that requiring the presence of a child advances the Legislature's goals that seek to ensure that services be provided in a timely manner, the voices of the children themselves in support of this *1245 proposal impressed the committee and impress me. As explained by the committee:
During the Steering Committee's term, the subcommittee met with both current and former foster youth through the organizations Connected by 25 and Florida Children's First. The subcommittee members were greatly impressed by the presentations by these dynamic young adults. They strongly advocated for youth attendance at hearings, particularly at judicial review hearings. For whatever reason, the sheer importance of hearings, especially judicial review hearings, is not fully conveyed to many foster children. As a result, many fail to attend hearings, either because adults have decided that they will not attend or because the youth do not know to insist on attending the hearing. Some youth may not be adequately informed that they have the right to a copy of the judicial review social study report filed with the court or that the hearing affords them direct access to the judge. Obviously, the older the youth, the more important their attendance at the hearing becomes. The experiences and discussions of the current and former foster youth were instrumental in the subcommittee's formulation of the rule proposal.
In my view, the Legislature's intent to prepare older foster youth for adulthood is advanced by a rule requirement of direct interaction between the court and the youth beginning no later than age sixteen. The Steering Committee's proposed rule accomplishes this goal of meaningful interaction between the foster youth and the judge, not through a substantive change in the law, but by proposing a procedural rule to give effect to the various statutes passed by the Legislature to impact this targeted population.[6]
Even with the majority's rejection of the amended rule, it should be highlighted that the rule as presently written, and as set forth by statute, provides that the child has a right to be present at hearings pursuant to rule 8.255(b) unless the Court finds that because of the child's mental or physical condition, a court appearance is not in the child's best interests. I read this rule as ensuring that children have the right to be present and be heard on the important issues affecting their lives. And certainly, as the child becomes a young adult, nothing can be more important than giving the child a voice in planning his or her future, ensuring that the child is aware of the services available, and is in fact taking advantage of and receiving the services provided by statute.
Lastly, the committee advises that foster children are frequently absent from hearings on issues that directly affect them. If this is so, I would urge the Juvenile Court Rules Committee, aided by the GAL and other child advocacy groups, to take steps to strengthen the rule to ensure that the child's presence with a meaningful opportunity to be heard is the rule, and not the exception.
QUINCE, C.J., and LEWIS, J., concur.
NOTES
[1] As the committee's report states, eighty individuals participated in the committee's work during the 2006-2008 committee term, including twenty-two appointed committee members and fifty-eight subcommittee members divided among seven subcommittees according to their expertise.
[2] The importance of the involvement of a child in the transition process has also been stressed by Casey Family Programs, an organization designed to provide and improve and ultimately prevent the need for foster care. In a report on its findings in a survey of young adults, the organization recommended that youth be included in the development of a transition plan "to ensure that they understand and support it." Anne Havalchak et al., The Casey Young Adult Survey: Findings over Three Years (Casey Family Programs, 2008), available at http://www.casey.org/NR/ rdonlyres/0F34595D-A32A-4295-9764-664512E2E3C8/665/CaseyYoungAdultSurvey ThreeYears1.pdf.
[3] In 1999, Congress passed the Foster Care Independence Act. See 42 U.S.C. § 677 (2000 & Supps. 2001-2005). The Act established the Chafee Foster Care Independence Program, the purposes of which include
identify[ing] children who are likely to remain in foster care until 18 years of age and to help these children make the transition to self-sufficiency by providing services such as assistance in obtaining a high school diploma, career exploration, vocational training, job placement and retention, training in daily living skills, training in budgeting and financial management skills, substance abuse prevention, and preventive health activities (including smoking avoidance, nutrition education, and pregnancy prevention).
42 U.S.C. § 677(a)(1) (2000). Under the program, states can apply for federal funding to establish programs designed to assist foster youth in transitioning to independent living. In the fiscal year 2005-06, the Department of Children and Families received an $8.9 million federal grant from the program. Improvements in Independent Living Services Will Better Assist State's Struggling Youth, OPPAGA Report No. 05-61 (December 2005), available at http://www.oppaga.state.fl.us/reports/ pdf/0561rpt.pdf.
[4] Within the past five years, the Legislature has created sections 39.701(6)(a), 743.045, and 743.046. Section 39.701(6)(a) mandates that a judicial review hearing be held within ninety days after a child's seventeenth birthday. Sections 743.045 and 743.046 allow foster youth to execute contracts for the lease of residential property and obtain utility services for such property before reaching the age of eighteen.
[5] Judge Baumann knows of what he speaks. He, along with the committee's chair, Judge Nikki Clark, has been a leader in what have become known as independent living transition dockets designed to ensure that there is a coordinated system of independent living transition services to enable older children in foster care to make the transition to self-sufficiency as adults. See generally Admin. Order No. S-2006-155 (Fla. 13th Cir.Ct. Sept. 28, 2006). There are presently eight specialized dockets around the State that focus on the needs of children ages sixteen and seventeen who are about to age out of the foster care system.
[6] The proposed rule change is a procedural one within the province of the judiciary, similar to our prior adoption of Florida Rule of Juvenile Procedure 8.625, which requires the presence of a child at proceedings unless that child's presence is waived. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922203/ | 756 A.2d 135 (2000)
Anthony BERRY, Petitioner,
v.
PENNSYLVANIA BOARD OF PROBATION AND PAROLE, Respondent.
Commonwealth Court of Pennsylvania.
Submitted on Briefs May 26, 2000.
Decided July 13, 2000.
Kent D. Watkins, Saint Clair, for petitioner.
Robert A. Greevy, Harrisburg, for respondent.
*136 Before PELLEGRINI, J., FLAHERTY, J., and McCLOSKEY, Senior Judge.
McCLOSKEY, Senior Judge.
Anthony Berry (Berry) petitions for review of a determination of the Pennsylvania Board of Probation and Parole (Board), denying his request for administrative relief from an order of the Board recommitting him as a technical and convicted parole violator to serve a total of twelve months backtime. We affirm.
Berry was originally sentenced in 1992 to a term of imprisonment of one and one-half years to seven years on two counts of delivery of a controlled substance. By order of the Board dated August 30, 1993, Berry was paroled to an approved plan that required him to report regularly to parole supervision staff, to stay within his parole district and not to change his residence without written permission of the parole supervision staff.[1] Additionally, the Board imposed a special condition on Berry's parole requiring him to submit to urinalysis testing. Berry, however, failed to abide by these conditions.
By order of the Board dated February 17, 1994, Berry was declared delinquent effective October 26, 1993. On April 27, 1994, the Duquesne Police Department arrested Berry on charges of criminal homicide. The Board thereafter issued an order dated August 29, 1994, detaining Berry pending disposition of these criminal charges. However, these charges were later dropped after the Duquesne Police Department discovered that Berry's brother, and not Berry, committed the homicide.
Nevertheless, by order of the Board dated April 5, 1995, Berry was recommitted as a technical parole violator to serve twelve months backtime for failing to report to parole supervision staff, failing to submit to urinalysis testing, failing to report his arrest, traveling outside the parole district without permission and changing his residence without permission. Berry's parole violation maximum sentence date was recalculated to September 16, 1999. Berry served his backtime and was paroled a second time on May 10, 1995, under the same conditions as his first parole.
Berry, however, again failed to abide by these conditions. Specifically, Berry failed to report to parole supervision staff and failed to submit to urinalysis testing. Hence, the Board issued an order dated May 24, 1995, declaring Berry delinquent effective May 22, 1995. Berry was subsequently recommitted as a technical parole violator to serve twenty-four months backtime as a result of his violations of these conditions. Berry's parole violation maximum sentence date was recalculated to November 8, 1999. Berry applied for parole in July of 1997, but was refused by the Board as a result of his need for counseling and treatment and his multiple misconducts during recommitment.
On March 12, 1998, Berry was paroled for a third time. Berry was subject to conditions similar to those of his first and second paroles. Once again, Berry failed to abide by these conditions and he was declared delinquent effective June 22, 1998, by order of the Board dated August 6, 1998. On September 17, 1998, Berry was arrested again by the Duquesne Police Department on charges of terroristic threats, simple assault and firearms violations.[2] On the same day, the Board issued a warrant to commit and detain Berry. On September 24, 1998, Berry was arrested once more by the Duquesne Police Department on charges of reckless driving, fleeing and eluding police and unauthorized use of a motor vehicle. At a preliminary hearing, these charges were held *137 over for the Court of Common Pleas of Allegheny County, Criminal Division.[3]
By order of the Board dated January 11, 1999, Berry was recommitted as a technical parole violator to serve nine months backtime, when available, as a result of his violations of his March 12, 1998, parole conditions. On July 8, 1999, Berry pled nolo contendre to the aforementioned charges of reckless driving, fleeing and eluding police and driving under suspension. Berry was sentenced to time served (four months) plus twenty months probation. He received credit from September 24, 1998, to January 24, 1999.
Berry was returned to the State Correctional Institution at Frackville (SCI-Frackville) after his sentencing on July 8, 1999. On July 27, 1999, Berry requested a panel revocation hearing regarding his new conviction. A hearing was held at SCI-Frackville on September 17, 1999. Following the hearing, the Board issued an order dated November 29, 1999, recommitting Berry as both a technical and convicted parole violator to serve a total of twelve months backtime.[4] Berry's parole violation maximum sentence date was recalculated to March 25, 2001. Berry thereafter filed a request for administrative relief alleging that the Board erred by failing to provide him with credit for time served solely under the Board's warrant from January 24, 1999, to July 8, 1999 (a period of five months and fourteen days).
By letter mailed February 2, 2000, the Board denied Berry's request for administrative relief. The Board noted that Berry did not post bail following the September 24, 1998, charges. The Board concluded, citing Walker v. Pennsylvania Board of Probation and Parole, 729 A.2d 634 (Pa. Cmwlth.1999), that Berry was not entitled to credit as he had no right to deposit the five months and fourteen days into a "penal checking account and apply any presentence custody credit in excess of his new sentence to his original sentence." (Certified Record at 66). The Board also concluded that, after adding the one year, eight months and seventeen days that Berry owed on his original sentence to July 8, 1999, when Berry was first held solely on the Board's warrant, it properly recalculated Berry's parole violation maximum sentence date to March 25, 2001.
On appeal to this Court,[5] Berry argues that the Board erred as a matter of law in failing to provide him with credit for all time served solely under the Board's warrant, i.e., that period of time from January 24, 1999, to July 8, 1999. More specifically, Berry argues that since his maximum term for the September 24, 1998, charges expired on January 24, 1999, any time he served subsequent to that date was served solely under the Board's warrant. We disagree.
Section 9760(1) of the Judicial Code, 42 Pa.C.S. § 9760(1), requires that time spent in custody awaiting trial and sentencing on new criminal charges be credited towards a new sentence. See also Snyder v. Pennsylvania Board of Probation and Parole, 701 A.2d 635 (Pa.Cmwlth.1997), petition for allowance of appeal denied, 555 Pa. 693, 722 A.2d 1059 (1998). Our Supreme Court further defined this issue in Gaito v. Pennsylvania Board of Probation and Parole, 488 Pa. 397, 412 A.2d 568 (1980). In Gaito, the Court, adopting this Court's *138 rationale from Rodriques v. Pennsylvania Board of Probation and Parole, 44 Pa. Cmwlth. 68, 403 A.2d 184 (1979), held as follows:
Thus, if a defendant is being held in custody solely because of a detainer lodged by the Board and has otherwise met the requirements for bail on the new criminal charges, the time which he spent in custody shall be credited against his original sentence. If a defendant, however, remains incarcerated prior to trial because he has failed to satisfy bail requirements on the new criminal charges, then the time spent in custody shall be credited to his new sentence.
Gaito, 488 Pa. at 403-404, 412 A.2d at 571.
Our Supreme Court thereafter created an exception to this rule by stating in a footnote that "[i]t is clear, of course, that if a parolee is not convicted, or if no new sentence is imposed for that conviction on the new charges, the pre-trial custody time must be applied to the parolee's original sentence." Gaito, 488 Pa. at 404 n. 6, 412 A.2d at 571 n. 6. Applying the exception from the footnote in Gaito, this Court, in Davidson v. Pennsylvania Board of Probation and Parole, 667 A.2d 1206 (Pa. Cmwlth.1995), held that a parolee detained in custody for failure to post bond on new criminal charges that are ultimately nolle prossed is entitled to credit against his original sentence. Recently, however, we stressed that this exception only applies if a parolee is not convicted or if no new sentence is imposed. See Smarr v. Pennsylvania Board of Probation and Parole, 748 A.2d 799 (Pa.Cmwlth.2000).
In the case at bar, Petitioner asks this Court to extend the exception such that a parolee who receives a shorter term of sentence than the period of time he is incarcerated at the time of sentencing is entitled to credit against his original sentence for this additional time. We refuse to do so. In this case, Berry pled nolo contendere to charges of reckless driving, fleeing and eluding police and driving under suspension. Hence, Berry was "convicted" of these new charges. In addition, Berry was sentenced to time served (four months) plus twenty months probation as a result of this conviction. As Berry was "convicted" of these new charges and a new "sentence" was imposed, the exception as stated in Gaito and Davidson does not apply. Thus, we cannot say that the Board erred as a matter of law in failing to credit Berry for time served from January 24, 1999, to July 8, 1999.
Accordingly, the order of the Board is affirmed.
ORDER
AND NOW, this 13th day of July, 2000, the order of the Pennsylvania Board of Probation and Parole is affirmed.
NOTES
[1] Berry's actual date of release was September 18, 1993. His parole violation maximum sentence date at that time was March 16, 1999.
[2] A preliminary hearing was held before a local district justice on October 8, 1998. At this hearing, all charges against Berry were dropped as a result of the victim's failure to appear.
[3] At this hearing, a charge of driving under suspension was added and the charge of unauthorized use of a motor vehicle was withdrawn.
[4] Berry was actually recommitted as a technical parole violator to serve nine months backtime and recommitted as a convicted parole violator to serve twelve months backtime concurrently for a total of twelve months backtime.
[5] Our scope of review of a Board's recommitment order is limited to determining whether necessary findings of fact are supported by substantial evidence and are in accordance with law and whether any constitutional rights of the parolee have been violated. Section 704 of the Administrative Agency Law, 2 Pa.C.S. § 704; Cromartie v. Pennsylvania Board of Probation and Parole, 680 A.2d 1191 (Pa.Cmwlth.1996). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922315/ | 756 A.2d 103 (2000)
CAMBRIA COUNTY MENTAL HEALTH/MENTAL RETARDATION, Petitioner,
v.
PENNSYLVANIA STATE CIVIL SERVICE COMMISSION (COTTON), Respondent.
Commonwealth Court of Pennsylvania.
Argued February 7, 2000.
Decided June 1, 2000.
Reargument denied August 10, 2000.
*104 Sheryl A. Safina, Ebensburg, for petitioner.
Robert M. Tomaine, Jr., Harrisburg, for respondent.
Robert A. Cohen, Pittsburgh, for intervenor, Jonell X. Cotton.
Before KELLEY, J., FLAHERTY, J., and NARICK, Senior Judge.
FLAHERTY, Judge.
Cambria County Mental Health/Mental Retardation (Appointing Authority) petitions this Court for review of a decision and order of the State Civil Service Commission (Commission) that ordered the Appointing Authority to offer its next available full-time psychological service associate (PSA) position to Jonell Cotton (Cotton) and to reimburse Cotton wages and emoluments from April 30, 1998 until she was appointed to a position by the Appointing Authority. We affirm.
On April 20, 1995, the Appointing Authority submitted a request to the Commission to remove Cotton's name from all PSA eligible lists, both full and part-time, certified to the Appointing Authority. The request for removal of Cotton's name indicated that she had been employed as a part-time PSA by the Appointing Authority from May 9, 1994 to April 25, 1995, but that she had been terminated at the end of her probationary period for failure to meet acceptable performance standards. Cotton was notified by the Commission of the Appointing Authority's request to have her name removed from the eligible list. She filed an appeal to challenge her removal and a hearing was scheduled for November 1995, but it was continued by the Commission until January 30, 1996.
On July 12, 1995, after requesting the removal of Cotton's name from the PSA eligible list, the Appointing Authority requested that the Commission certify a list of eligibles for the position of PSA, giving preference to residents of the Appointing Authority. Certification 06375 was issued as requested. The certification contained two separate groups of eligibles. The first group was composed of five eligibles who were residents of the Appointing Authority. Cotton was the third name listed in this group and she had a final earned rating of 60. The second group was composed of six eligibles who were not residents of the Appointing Authority. J.W. Sutton (Sutton) was the sixth name listed in this group and he had a final earned rating of 60.
On August 22, 1995, the Appointing Authority submitted a copy of Certification 06375 to the Commission indicating which of the eligibles had been appointed to the full-time PSA position. Three of the five eligibles who were residents of the Appointing Authority were appointed. The two residents who were not appointed were Cotton and another candidate. Cotton's name had been marked with the code "PR" and the other candidate's name had been marked with the code "NR". The code "PR" means that an agency has requested that this eligible's name be removed from the list of eligibles.[1] The code "NR" means that the candidate did not reply to an availability survey or did not report for the interview. The Appointing Authority's list also indicated that one non-resident was appointed to the position of PSA and that was Sutton.
In early December of 1995, Cotton's name expired from the PSA eligible list. However, this had no impact on Certification 06375. By letter dated January 22, *105 1996, the Appointing Authority indicated that it wished to withdraw its list removal request action against Cotton. By letter dated January 31, 1996, the Commission granted the Appointing Authority's request to withdraw its action and indicated that the January 30, 1996 hearing had been cancelled. The letter to the Appointing Authority also advised that Cotton's name would remain on the list of eligibles.
In June or July of 1996, the Commission's division of Technical Assistance and Audit contacted the Appointing Authority regarding its appointment of Sutton. It advised the Appointing Authority that corrective action must be taken because an audit of the appointment revealed that improper procedures may have been used in making the appointment from Certification 06375. The impropriety was that the Appointing Authority made an appointment of Sutton who was a non-resident, over Cotton who was a resident. The appointment should have been offered to Cotton. To correct the error the Appointing Authority was advised that it should offer Cotton its next available PSA position. The Appointing Authority responded that the appointments were legal and requested a hearing. A hearing was convened before the Commission under Section 951(d) of the Civil Service Act (Act).[2] After the hearing, an order was entered directing the Appointing Authority to appoint Cotton to the next available PSA position and to reimburse her lost wages and emoluments. It is that order which is now before this Court.
Three issues have been raised for our review: whether a "Statement" filed with this Court by Cotton on January 5, 2000, in lieu of a brief, should be stricken because it violates Pa. R.A.P. 2102 and Pa. R.A.P. 2112; whether the Appointing Authority's amended brief is in violation of the rules and this Court's order of November 8, 1999, ordering the Appointing Authority to strike portions of its Reproduced Record and file an amended brief removing any portion that relied upon the items stricken from the record; and whether the Appointing Authority's appointment in August 1995 of a non-resident, over Cotton a resident of the Appointing Authority, was a violation of the Commission's rule and policies of appointment meriting the Commission to order corrective action.[3] We will address the issues concerning the briefs first.
On January 5, 1999, Respondent/Intervenor Cotton filed with this Court a "Statement of Jonell X. Cotton" in lieu of a brief. The Appointing Authority responded with a motion to strike the statement because it violated Pa. R.A.P. 2102[4] and Pa. R.A.P. 2112[5] and did not in any way reference the Respondent Commission's brief. After the filing of the motion, Respondent/Intervenor Cotton filed a brief with this Court on January 18, 2000. This brief comports with the rules. Since the "Statement" is in violation of the rules, because it does not contain a summary of argument or an argument section as required by Pa. R.A.P. 2112, and because an appropriate brief has been filed stating Cotton's position, the Appointing Authority's motion to strike Cotton's "Statement" is granted.
Next, the Commission argues that the Appointing Authority's amended brief *106 is in violation of the rules and an order of this Court dated November 8, 1999. The Commission contends that portions of the Appointing Authority's amended brief continue to rely on documents that this Court has ordered stricken from the record and that these offending portions should also be disregarded by this Court. After review of the Appointing Authority's amended brief, we must agree with the Commission.
On November 8, 1999, this Court ordered that items 5, 8, 9, 10 and 11 of the Appointing Authority's Reproduced Record be stricken because those items were not contained in the Certified Record.[6] In addition, those portions of the Appointing Authority's brief which relied on those items were ordered stricken. The Court then permitted the Appointing Authority to file an amended brief. The amended brief filed by the Appointing Authority is exactly the same as the original brief with the portions relying on the items stricken from the Reproduced Record being crossed out with a pink colored highlighter pen. The offending portions were not actually removed from the amended brief. This Court views the Appointing Authority's actions as a ploy not only to avoid removing the designated portions as this Court ordered, but also to draw our attention to the material in the brief which was ordered to be stricken from the Reproduced Record. The Appointing Authority, nevertheless, insists it has complied with the Court's order by using the pink colored highlighter pen. In addition, the Appointing Authority continued to insist at argument and by post argument correspondence that a highlighter pen is a redaction or deletion. We strongly disagree with this position and advise attorneys against such tactics which do not obey a clear court order and obviously attempt to circumvent it.
In addition to the use of the highlighter pen, a close review of the Appointing Authority's amended brief reveals that it did not even strike with its pink colored highlighter all of those portions which relied on items that were ordered stricken from the Reproduced Record. In the Statement of the Case on page 11 at paragraph 3 of the amended brief, the Appointing Authority used its highlighter on the citation to the record, but failed to use it on the information located in the stricken document. In addition, on page 12 at footnote 1 and on pages 13 and 14 there is information included that does not appear in the Reproduced Record. Additionally, in the Argument section of the amended brief at pages 21, 22 and 23 there are quotations purported to be quotations of the hearing officer, Mr. Zurn. An examination of the Reproduced Record does not reveal that these quotations are anywhere within the Reproduced Record. Again, this Court takes a dim view of the Appointing Authority's attempt to misrepresent the record. Therefore, all offending portions cited above, as well as those highlighted in pink, will not be considered by this Court when examining the merits of the case.
Finally, we address the merits of the case. The Appointing Authority argues that by ordering it to hire Cotton to a PSA position, after the Appointing Authority had fired her for unsatisfactory completion of her probationary period, the Commission is directing the Appointing Authority to act in an absurd manner and that the law abhors an absurd result. The Appointing Authority also alleges that it would not have withdrawn its request to have Cotton's name removed from the eligible list, but for the fact that it had been misled by the Commission.
The Commission argues that there is no evidence that the Appointing Authority was misled into withdrawing it's removal request. In addition, because the request was withdrawn leaving Cotton's name on Certification 06375, but Cotton had not been considered in the August 1995 appointments, the Appointing Authority violated the Commission's policies and rules *107 regarding appointments. The Commission argues that its decision was within the boundaries of its policies and rules. There appears to be no case law interpreting these policies and rules, and neither the Appointing Authority nor the Commission cite any case law in support of their respective arguments.
When an appointing authority objects to an individual's name being included on a list of eligibles, it can seek the removal by promptly raising it's objection to the Commission. If the objection is sustained by the Commission, the appointing authority need not consider the eligible for appointment. See 4 Pa.Code § 97.13. Management Directive 580.34 provides the three-step procedure that must be followed. An appointing authority must: (1) promptly submit a list removal request to the Commission, (2) support its objection at a hearing if the eligible timely appeals the request, and (3) receive notification that the Commission has granted its request to the remove the individual. While the appeal process is proceeding, the eligible's name will remain on the list and will continue to be certified until the Commission issues a decision. Only the Commission can remove an individual from the list of eligibles and until a name has been removed from a list, an appointing authority must consider that individual. See Management Directive 580.34.
This Court has held that numbered management directives announcing detailed policies, responsibilities and procedures that are relatively permanent in nature and which have been signed by the head of any commission under the Governor's jurisdiction have the force of law when they are based upon authority or duty conferred by constitution, statute or regulation. Reneski v. Department of Public Welfare, 84 Pa.Cmwlth. 226, 479 A.2d 652 (1984). See also Zerbe v. Unemployment Compensation Board of Review, 545 Pa. 406, 681 A.2d 740 (1996). The Appointing Authority does not contend that the Management Directive at issue does not have the force of law. Our review of the Act indicates that Section 203 empowers the Commission to adopt rules for making effective the provisions of the Act. 71 P.S. § 741.203. Therefore, according to Reneski, Management Directive 580.34 has the force of law. Accordingly, we must examine what affect this Management Directive had on the Appointing Authority's appointment of Sutton over Cotton.
The Appointing Authority argues that it is absurd that an employee recently fired should be rehired. However, the Appointing Authority chose to request and make appointments from a certification giving preference to residents of the County. Having done so, the Appointing Authority was required to follow the rules that govern the use of such certifications. The State Civil Service Commission Manual 580.1, "Certification of Eligibles for the Classified Service" explicitly requires that an appointing authority, in appointing eligibles from a certification giving preference to county residents, must appoint available residents before appointing non-residents. (R.R. at 32a-33a). Specifically, the Manual provides: "4. Residency. For agencies with Commission approval to give preference to residents of their jurisdiction (e.g. county, city, district, or region), all available eligible residents on the certification must be appointed prior to appointing nonresidents." 580.1 Part G(4). Because 580.1 requires that all residents be hired over nonresidents when the appointing authority requests a county preference list, the Appointing Authority here was required to hire Cotton before hiring a candidate off the nonresident list as long as her name remained on the list of eligibles.
It is clear that the Management Directive sets out three steps an appointing authority must follow in order to remove a name from a list of eligibles. It is also clear from the record that the Appointing Authority did not follow this three step procedure, but instead withdrew its request before steps two and three could be completed, leaving Cotton's name on Certification 06375. According to the Act, regulations and Management Directives, this three step procedure is the only procedure available to remove a name from the *108 list of eligibles. Because Cotton's name was not removed through this process and remained on Certification 06375, the Appointing Authority had an obligation to consider her for employment when it hired PSAs in June and August. This same result would have occurred if the Appointing Authority had followed through with its removal request and the Commission had denied the removal request. The Appointing Authority would have been obligated to consider Cotton at that time. (R.R. at 23a-25a).
The Appointing Authority argues that it would not have withdrawn its removal request, but for the advice of someone in the office of the Commission. This allegation is not supported by any facts of record. The Appointing Authority attempted to introduce testimony at the hearing that some representative in the Civil Service office had informed an employee of the Appointing Authority that the Appointing Authority should withdraw the removal request. However, this testimony was objected to by the Commission's counsel because it was hearsay and the objection was sustained by the hearing examiner. (R.R. at 75a-76a). We agree with the hearing examiner's ruling because clearly the testimony was hearsay. Therefore, it cannot be the basis for any finding or conclusion that the Appointing Authority was misled into withdrawing its removal request. Without any competent evidence to support its claim that it was misled, it appears that the Appointing Authority unilaterally withdrew its request to remove Cotton's name from the list of eligibles.
The Appointing Authority chose to withdraw its removal request, leaving Cotton's name on the list of eligibles. According to the Commission's rules and regulations, because Cotton was an eligible candidate for the position of PSA and on the list of county residents, she should have been hired over a nonresident. While the Appointing Authority may believe it to be an absurd result, we conclude that the Appointing Authority, not the Commission, caused it. The Commission did not err as a matter of law in ordering the Appointing Authority to hire Cotton to a PSA position. Rules and procedures are in place for appointing and removing eligible candidates and the Appointing Authority chose not to follow the rules and procedures. It must now correct its improper appointment in accordance with the Commission's rules and regulations. Accordingly, the order of the Commission is affirmed.
ORDER
AND NOW, this 1st day of June, 2000, Cambria County Mental Health/Mental Retardation's motion to strike Jonell Cotton's "Statement" is granted, the Commission's request that this Court disregard portions of Cambria County Mental Health/Mental Retardation's brief that rely on documents that have been stricken from the reproduced record is granted and the order of the Commission is affirmed.
NOTES
[1] An eligible coded "PR" on a certification list will either be removed or retained on the certification as directed by the Commission. If retained, the appointing agency must consider the eligible. If removed, the appointing agency need not consider the eligible. See the amended State Civil Service Management Directive 580.34, effective January 21, 1995.
[2] Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.951(d).
[3] Our review of decisions of the Commission are limited to determining whether constitutional rights have been violated, an error of law has been committed or whether the Commission's findings of fact are supported by substantial evidence. Keim v. Department of Health, 117 Pa.Cmwlth. 452, 543 A.2d 1261 (1988).
[4] Pa. R.A.P. 2102 provides that for purposes of briefing, intervenors shall be subject to the same provisions of the rules applicable to the party on whose side the intervenor is principally aligned.
[5] Pa. R.A.P. 2112 requires that the brief of an appellee must contain a summary of argument and an argument section.
[6] This Court, when reviewing matters in its appellate capacity, is bound by the facts certified in the record on appeal. Tener v. Unemployment Compensation Board of Review, 130 Pa.Cmwlth. 433, 568 A.2d 733, 738 (1990). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922321/ | 756 A.2d 90 (2000)
Eileen DEMPSEY, By Her Husband and Guardian Ad Litem, Edward DEMPSEY, Petitioner,
v.
DEPARTMENT OF PUBLIC WELFARE, Respondent.
Commonwealth Court of Pennsylvania.
Argued April 13, 2000.
Decided May 15, 2000.
Publication Ordered July 18, 2000.
*91 Kenneth A. Wise, Harrisburg, for petitioner.
Diana C. Clark, Harrisburg, for respondent.
Before DOYLE, President Judge, and McGINLEY, J. and MIRARCHI, Jr., Senior Judge.
MIRARCHI, Jr., Senior Judge.
Eileen Dempsey, by her husband and guardian ad litem, Edward Dempsey, petitions this Court to review a final administrative order of the Pennsylvania Department of Public Welfare (DPW) affirming a hearing officer's denial of her appeal from a decision of the County Assistance Office *92 (CAO). The CAO denied Mrs. Dempsey's application of medical assistance (MA) benefits for nursing home care. We affirm.
Mrs. Dempsey, who apparently suffers from symptoms of Alzheimer's Disease, was admitted to the Middleton Nursing Home in December 1996. In January 1997, the CAO completed a resource assessment for the Dempseys. This assessment placed the Dempseys' countable and verifiable resources at $404,630 at the time of Mrs. Dempsey's admission to the nursing home. In January 1998, Mr. Dempsey transferred $340,000 of these assets to purchase a single premium, irrevocable annuity that would pay him (as sole payee) income of $6,300 per month for five years. Two months later, Mr. Dempsey bought a similar annuity for $25,000 that would pay him (as sole payee) income of $730 per month for five years. Three months later, Mrs. Dempsey, through her husband as guardian ad litem, applied for MA to pay for her nursing home costs.
The CAO responded with a letter asking Mr. Dempsey why he had transferred $365,000 of their joint assets immediately before applying for MA, for what the CAO considered less than fair market value. Mr. Dempsey responded by letter stating that he transferred the funds as an investment strategy. In particular, he stated that he was professionally advised that for a person of his age (seventy years), it was more prudent to place the assets where he could obtain a fixed income rather than expose them to the volatility of the stock market (where the Dempseys' assets had apparently been invested). Further, he stated that the transfer would also reduce the Dempseys' taxes. The CAO requested proof of these assertions, and Mr. Dempsey provided certain documentation.
After receipt of this documentation, the CAO denied Mrs. Dempsey's application for MA and further determined that she would be ineligible for MA until August 2004 as a result of what the CAO presumed was a transfer of $365,000 of countable assets for less than fair market consideration and for the impermissible purpose of qualifying for MA. The Dempseys appealed, and a hearing officer held a hearing, at which Mr. Dempsey and an income maintenance casework supervisor for DPW testified.
The hearing officer concluded that the Dempseys failed to rebut DPW's presumption that they had transferred assets for less than fair market value and for the purpose of qualifying Mrs. Dempsey for MA. Accordingly, the hearing officer determined that Mrs. Dempsey was ineligible to receive MA for a period commensurate with the number of months of nursing home care that could be purchased by $365,000. The Secretary of DPW affirmed, and this petition for review followed.
This Court's scope of review is limited to a determination of whether an error of law was committed, whether necessary findings of fact are supported by substantial evidence, and whether constitutional rights were violated. Oriolo v. Department of Public Welfare, 705 A.2d 519 (Pa.Cmwlth.1998). The Dempseys argue that DPW erred by presuming that the transfer of their assets to the annuities was a disqualifying event when the annuities were actuarially sound in accordance with relevant federal guidelines. The Dempseys also argue that DPW erred by failing to make a finding regarding the actuarial soundness of the annuities. Finally, the Dempseys argue that the case law relied upon by DPW is inapplicable to the factual situation present in this case.
In support of their argument, the Dempseys rely upon a single guideline of the Health Care Financing Administration (HCFA) of the United States Department of Health and Human Services set forth in the State Medicaid Manual. Section 3258.9(B) of the State Medicaid Manual, HCFA, No. 45-3, Transmittal No. 64 (Nov. 1994), provides in relevant part:
*93 Annuities, although usually purchased in order to provide a source of income for retirement, are occasionally used to shelter assets so that individuals purchasing them can become eligible for Medicaid. In order to avoid penalizing annuities validly purchased as part of a retirement plan but to capture those annuities which abusively shelter assets, a determination must be made with regard to the ultimate purpose of the annuity (i.e., whether the purchase of the annuity constitutes a transfer of assets for less than fair market value). If the expected return on the annuity is commensurate with a reasonable estimate of the life expectancy of the beneficiary, the annuity can be deemed actuarially sound.
To make this determination, use the following life expectancy tables, compiled from information published by the Office of the Actuary of the Social Security Administration. The average number of years of expected life remaining for the individual must coincide with the life of the annuity. If the individual is not reasonably expected to live longer than the guarantee period of the annuity, the individual will not receive fair market value for the annuity based on the projected return. In this case, the annuity is not actuarially sound and a transfer of assets for less than fair market value has taken place, subjecting the individual to a penalty. The penalty is assessed based on a transfer of assets for less than fair market value that is considered to have occurred at the time the annuity was purchased.
For example, if a male at age 65 purchases a $10,000 annuity to be paid over the course of 10 years, his life expectancy according to the table is 14.96 years. Thus, the annuity is actuarially sound. However, if a male at age 80 purchases the same annuity for $10,000 to be paid over the course of 10 years, his life expectancy is only 6.98 years. Thus, a pay out of the annuity for approximately 3 years is considered a transfer of assets for less than fair market value and that amount is subject to penalty.
The Dempseys argue that because Mr. Dempsey had a life expectancy of 11.35 years at the time of purchase, according to the applicable tables, the two five-year annuities at issue must be considered actuarially sound and not subject to penalty. The Dempseys thus argue that Section 3258.9(B) of the State Medicaid Manual is conclusive, that it prohibits DPW from making a presumption that their assets were transferred for less than fair market value, and that all other considerations surrounding the transfer of assets are subordinate to the fact that the annuities appear to be actuarially sound under these provisions.
In the recent decisions of Bird v. Department of Public Welfare, 731 A.2d 660 (Pa.Cmwlth.1999); Ptashkin v. Department of Public Welfare, 731 A.2d 238 (Pa. Cmwlth.1999); and Pyle v. Department of Public Welfare, 730 A.2d 1046 (Pa.Cmwlth. 1999), however, we emphasized several matters regarding the construction of Medicaid law overlooked by the Dempseys in their argument. Moreover, we determined in those cases, contrary to the Dempseys' argument, that the "actuarial soundness" of an annuity in accordance with life expectancy tables as described in the State Medicaid Manual does not render a transfer of assets to such an annuity a matter beyond the review of DPW in its determination of whether a MA application for nursing home care should be granted or denied.
First, we again emphasize the obvious:
The Medicaid Act contains complex, interrelated provisions, and it would be foolhardy to impute a plain meaning to any of its provisions in isolation. A statute must be read as a whole; words depend upon context; `they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take *94 their purport from the setting in which they are used....'
Bird, 731 A.2d at 666 (quoting Cleary v. Waldman, 959 F.Supp. 222, 228-29 (D.N.J. 1997)) (citation omitted). As pertaining to the eligibility requirements of an institutionalized applicant for MA who has a spouse remaining in the community, as is the present case, the provisions of the Medicare Catastrophic Coverage Act of 1988 (MCCA), as amended, 42 U.S.C. § 1396r-s, must be particularly examined. We refer to Bird, Ptashkin, and Pyle for a more thorough explanation of the MCCA, the history behind this legislation and the Medicaid program generally, and the regulatory scheme promulgated by DPW to implement the provisions and mandates of this federally financed state assistance program. For purposes of our review, a summary shall be sufficient.
DPW's duly promulgated regulations provide that an applicant is eligible for medically needy MA benefits if the applicant has available resources of $2400 or less. 55 Pa Code § 178 (App.A). Where the applicant is institutionalized and leaves a spouse remaining in the general community, DPW is required to calculate the total amount of the couple's resources at the time one spouse is admitted into a nursing facility. 55 Pa.Code § 178.121(g). The spouse remaining in the community is permitted to keep one-half of the total resources owned by the couple without rendering the institutionalized spouse ineligible for MA. There is, however, a minimum community spouse requirement and a maximum cap regardless of the amount constituting one-half of the couples' resources. 42 U.S.C. § 1396r-5(c), (f). At the time Mrs. Dempsey applied for MA, the maximum community spouse resource allocation (CSRA) was $76,740. 42 U.S.C § 1396r-5(f)(2). The amounts are adjusted annually. The CSRA is considered a "protected resource" that does not affect the eligibility of the institutionalized spouse to receive MA. 42 U.S.C. § 1396r-5(c), (f).
Additionally, a community spouse is able to receive a certain monthly income without rendering the institutionalized spouse ineligible for MA. 42 U.S.C. § 1396r-5(d). Should this income be insufficient to maintain the community spouse above the federal impoverishment limits, either the income may be augmented by a sufficient portion of the institutionalized spouse's income, or the CSRA may be adjusted upward to the extent that sufficiently extra interest income is generated. See 55 Pa. Code § 178.124(b). This computation of protected resources controls how much of the couple's total resources that the spouse may retain. Bird. Any non-protected resources are considered available to the institutionalized spouse and must be spent down to $2400 before the institutionalized spouse may become eligible for MA. 55 Pa.Code § 178.1 (Append.A).
Other regulations provide that transfers of assets by the applicant or his or her spouse made within the prescribed look-back period (generally thirty-six months from the date the applicant is both institutionalized and has applied for MA) will render the applicant temporarily ineligible for MA if the assets were transferred for less than fair market value. 55 Pa.Code § 178.104. The length of the ineligibility shall be the equivalent of the number of months that the transferred assets could purchase the average nursing home care in the Commonwealth. Bird. Implicit in the regulations set forth at Section 178.104, however, is that a transfer of assets made by the applicant or spouse for fair market value within the look-back period will not result in ineligibility. As we discussed in Bird, however, the MCCA provides that its provisions establishing the CSRA with its maximum cap, as well as the prescribed monthly allowances for the community spouse, supersede any other provision of Medicaid law, including those provisions set forth at 55 Pa.Code § 178.104.[1] 42 U.S.C. § 1396r-5(a)(1).
*95 Moreover, DPW is the payer of last resort. 55 Pa.Code § 178.6(a). DPW regulations provide that the applicant shall identify third party sources that are available to pay for medical services, including the spouse, and "that these shall be used to the fullest extent possible before payment is made by MA." Id. The regulations further create a presumption that property owned solely or jointly by the applicant is available for payment of medical services. 55 Pa.Code § 178.4. DPW, when reviewing an application for MA, may apply these presumptions and may also presume that disposed-of assets (made during the look-back period) were transferred with the improper intent to qualify for MA. 55 Pa.Code § 178.105. As always, the burden of proving eligibility for MA is on the applicant. Bird; Ptashkin; Pyle. DPW is empowered to presume that a transfer of assets within the applicable period has been made in contravention of the Medicaid laws, and it is then the burden of the applicant to rebut this presumption at a hearing if not before. Ptashkin.
Here, Mr. Dempsey transferred $365,000 of joint assets into irrevocable annuities immediately before he applied for MA on behalf of his wife. These annuities would bring Mr. Dempsey far in excess of the maximum monthly income allowance for a community spouse under the MCCA and would further serve to effectively shelter assets far in excess of the CSRA and the $2400 allowable to Mrs. Dempsey. Therefore, granting Mrs. Dempsey MA from scarce resources would appear to be a gross violation of the MCCA in light of Mr. Dempsey's transfers. Moreover, the transactions do not appear to have conferred any tangible benefit upon Mrs. Dempsey at all. DPW accordingly correctly presumed that the transactions were made for less than fair market value and for the impermissible purpose of qualifying for MA.
It was the Dempseys' obligation to rebut this presumption at the hearing. Mr. Dempsey testified that he made the transactions as an investment strategy to avoid the volatility of the market, to insure a fixed income for himself, and to take advantage of certain tax benefits. Mr. Dempsey did not, however, testify that he could only achieve these goals by rendering the assets unavailable for use towards his wife's nursing home care. That is, Mr. Dempsey did not set forth evidence that circumstances required the placement of substantial assets in irrevocable instruments. Suffice it to say, the Medicaid laws and the MCCA in particular do not provide that otherwise available assets may be rendered unavailable by placing them in the service of investment strategies and tax benefits.[2] Further, Mr. Dempsey failed to even provide evidence regarding the transactions themselves. No agreement or instrument detailing the full terms of the annuities was introduced into evidence. Therefore, on the most fundamental level, Mr. Dempsey failed to establish that the assets were exchanged for fair market value after an arms-length transaction.
The Dempseys simply rely on the fact that the annuities appear to be actuarially sound in accordance with Section 3258.9(B) of the State Medicaid Manual, a federal guideline. A federal guideline, however, cannot overturn the provisions of a federal statute, particularly one that specifically provides that it is to take precedence over every other provision of the Medicaid laws. The provisions of the MCCA establishing the CSRA and the maximum monthly income levels for the community spouse, by expressly stated intent, take precedence. Moreover, Section 3258.9(B) of the State Medicaid Manual does not itself provide that a transfer of assets to an actuarially sound annuity establishes that the transfer may not under any circumstances render ineligible an applicant *96 for MA. As we read the provision, it is simply a guideline to aid caseworkers in determining whether or not an annuity appears on its face to be a legitimate instrument as opposed to an abusive shelter for assets. This does not mean that the purchase of a legitimate instrument from available assets must, in all circumstances, render those assets unavailable for purposes of determining MA eligibility. In sum, the Dempseys' reliance upon a single guideline in isolation may not render the remaining provisions of the Medicaid laws and the essential and precedential provisions of the MCCA meaningless.
The final administrative order of DPW is therefore affirmed.
ORDER
AND NOW, this 15th day of May, 2000, the order of the Pennsylvania Department of Public Welfare in the above-captioned matter is hereby affirmed.
NOTES
[1] The regulations set forth at 55 Pa.Code § 178.104 mirror federal provisions of the Medicaid law set forth at 42 U.S.C. § 1396p.
[2] Obviously, if this were true, the federal mandate that MA is reserved for "needy persons" would be completely erased. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599526/ | 729 So.2d 409 (1999)
Robert G. HYLLEBERG, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 98-903.
District Court of Appeal of Florida, Fifth District.
January 29, 1999.
Rehearing Denied April 13, 1999.
Robert G. Hylleberg, Jr., Blountstown, pro se.
*410 Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden,Assistant Attorney General, Daytona Beach, for Appellee.
PER CURIAM.
Hylleberg appeals from the trial court's denial of his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, after an evidentiary hearing. His primary point on appeal is that the trial court erred by not appointing private council to represent him at the hearing. We affirm.
There is no absolute right to appointed counsel in a post-conviction proceeding. Schneelock v. State, 665 So.2d 1063 (Fla. 4th DCA 1995); McCaskill v. State, 638 So.2d 567 (Fla. 5th DCA 1994). Whether to appoint counsel in such proceedings turns on the trial court's determination that such representation is essential to accomplish a fair and thorough presentation of the petitioner's motion. Appointment may be required by due process considerations, if the issues are complex and require substantial legal research. Graham v. State, 372 So.2d 1363 (Fla.1979). State v. Weeks, 166 So.2d 892 (Fla.1964). See also Russo v. Akers, 23 Fla. L. Weekly S597, 724 So.2d 1151 (Fla.1998). The question in these proceedings is whether the assistance of counsel is essential to accomplish a fair and thorough presentation of the claims. Hooks v. State, 253 So.2d 424, 426 (Fla.1971).
The issue involved in this case was relatively simple: whether the public defender at Hylleberg's trial failed to advise him, prior to his pleading guilty to first degree murder, that voluntary intoxication is a defense to the crimes with which he was charged (murder and two counts of kidnaping).[1] The public defender testified that he was well aware that voluntary intoxication was a defense to these crimes, but he said he did not think the defense would "fly" in this case because of Hylleberg's behavior prior to and during the commission of the crime.[2] Accordingly, he advised Hylleberg to plead guilty to the murder count in exchange for the state's dropping the other charges and not seeking the death penalty.
Whether defense counsel adequately advised Hylleberg about his legal defenses was a relatively simple fact issue which the trial court resolved against Hylleberg. Further, it appears Hylleberg made cogent arguments, correctly cited case law, and represented himself well at the hearing, as can be discovered from reading the transcript of the hearing. We have no basis to conclude that the trial court abused its discretion in not appointing counsel for Hylleberg at the hearing.
We also reject Hylleberg's argument that letters he wrote which were in sealed, addressed and stamped envelopes, and which were opened without a warrant by the police prior to his entry of a guilty plea, should not have been considered by the court in this proceeding. In entering a guilty plea a defendant admits the facts that underlie the offense. See generally, Pomeranz v. State, 703 So.2d 465, 469 (Fla.1997). The letters were relevant and indeed essential to explain his trial counsel's view that in this case voluntary intoxication was not a viable defense.
AFFIRMED.
W. SHARP, PETERSON and THOMPSON, JJ., concur.
NOTES
[1] Voluntary intoxication is a defense to specific intent murder; State v. Bias, 653 So.2d 380 (Fla.1995); Gardner v. State, 480 So.2d 91 (Fla. 1985); Stevens v. State, 693 So.2d 144 (Fla. 5th DCA 1997), and to kidnaping, Sochor v. State, 619 So.2d 285 (Fla.1993); Worden v. State, 688 So.2d 958 (Fla. 4th DCA 1997).
[2] Specifically, Hylleberg had implicitly threatened to kill the victim in at least one letter to his mother, where he had stated:
What I'm about to do before this day ends is truly wrong and unforgivable. I intend to remedy this situation in my own way as I have done all my life. And the problems with God, may not forgive me for what I'm about to do, but I am going to take that S.O.B. with me, period. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599460/ | 467 N.W.2d 888 (1991)
237 Neb. 837
EASTROADS, INC., a Nebraska Corporation, Appellant,
v.
CITY OF OMAHA and Varnum Armstrong Deeter, Inc., a Missouri Corporation, Appellees.
No. 88-1026.
Supreme Court of Nebraska.
April 12, 1991.
*890 David R. Stickman and Mary E. Weber of Stern, Swanson & Stickman, P.C., Omaha, for appellant.
Charles K. Bunger, Asst. Omaha City Atty., and Frank F. Pospishil and Sandra L. Maass, of Abrahams, Kaslow & Cassman, Omaha, for appellees.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ.
HASTINGS, Chief Justice.
Plaintiff-appellant, Eastroads, Inc., filed a petition for declaratory judgment against the defendants-appellees, City of Omaha (City) and Varnum Armstrong Deeter, Inc. (Varnum), to declare a rezoning ordinance invalid, arbitrary, capricious, and illegal and to enjoin the defendants from recognizing the ordinance and from commencing any construction on the property in question. The defendants filed a motion for summary judgment, alleging that there was no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law. The defendants' motion was granted, and Eastroads' petition was dismissed.
Eastroads appeals and assigns as error (1) the failure of the trial court to find that the ordinance enacted was arbitrary and unreasonable and contrary to law, (2) the granting of defendants' motion for summary judgment, (3) the denial of the motion of Eastroads for a continuance, and (4) the finding that Eastroads did not have standing.
Summary judgment is proper when the pleadings, affidavits, depositions, *891 admissions, and stipulations show that there is no genuine issue as to any material fact or the ultimate inferences that may be drawn from any material fact and that, as a matter of law, the moving party is entitled to judgment. Neb.Rev.Stat. § 25-1332 (Reissue 1989); Joseph Heiting & Sons v. Jacks Bean Co., 236 Neb. 765, 463 N.W.2d 817 (1990); First Nat. Bank v. Chadron Energy Corp., 236 Neb. 199, 459 N.W.2d 736 (1990). After the movant has shown facts entitling the movant to summary judgment as a matter of law, the opposing party has the burden of presenting evidence to show an issue of material fact which prevents a judgment as a matter of law. Wilson v. F & H Constr. Co., 229 Neb. 815, 428 N.W.2d 914 (1988). In reviewing a summary judgment, we view the evidence in a light most favorable to the party against whom the judgment is granted and give such party the benefit of all reasonable inferences deducible from the evidence. Id.
On December 30, 1987, Varnum filed an application with the Omaha Planning Department to rezone certain property located on the northwest corner of Interstate 80 and 13th Street in the City from urban family residential to community commercial, and for a special use permit. The application showed the property owner to be "Thirteenth Street Associates c/o Varnum Armstrong Deeter, Inc. General Partner," and was signed by Ralph W. Varnum.
The City was advised by letter from Varnum that the applicant either owned or was under contract for the purchase of the affected property and that those agreements to purchase included the right to have the property rezoned. In addition, property owners were given notice of hearings before the Omaha Planning Board and the Omaha City Council as required by law, and they raised no objections.
On August 23, 1988, the rezoning was approved by the city council, and ordinance No. 31600 was adopted, effective September 7, 1988.
The petition of Eastroads for a declaratory judgment was filed on September 8, 1988. It alleges that the applicant was not the proper party to make application under the requirements of the Omaha Municipal Code, since it was neither the owner of the property nor the authorized agent of the owner at the time of the application; that Thirteenth Street Associates was a nonentity at the time of application and thus did not have the legal capacity to make application or enter into contracts; and that the proposed rezoning did not propose a use which is the highest and best use of the property.
Without filing an answer, defendants, on October 20, 1988, filed a motion for summary judgment, with supporting affidavits. Defendants noticed the motion for hearing for November 18, 1988. Eastroads filed a motion for continuance to permit discovery. The record discloses no ruling by the court on that motion for continuance, but obviously it was overruled or disregarded because hearing was had on November 18 on the motion for summary judgment. No objection to proceeding with this hearing was voiced by plaintiff. By order dated December 7, 1988, the district court found that the motion for summary judgment should be sustained because there was no genuine issue of fact and the defendants were entitled to judgment as a matter of law. The court further found that the plaintiff had no standing to bring this particular action under the pleadings and evidence before the court and that the evidence showed the City had fully complied with the city ordinances with regard to rezoning of the subject property. Finally, the court entered judgment in favor of the defendants, dismissing the plaintiff's petition.
Plaintiff's first assignment of error concerns the claimed failure of Varnum to comply with the procedural requirements of the Omaha code and the Nebraska statutes because the applicant was not the owner or the agent of the owners of all of the property at the time the application was filed. Furthermore, Eastroads argues that the applicant Thirteenth Street Associates was not an entity at the time the application was made.
*892 Contained in the record in support of defendants' motion for summary judgment are the applications filed with the City showing Thirteenth Street Associates as the owner of the property, various letters from Varnum to the City assuring the planning department that "we" own or have under contract all of the land included in "our Zoning Application," an affidavit by Ralph Varnum as to certain property included in the application, which property is owned by Varnum, and affidavits from the remaining owners of the property included within the application to the effect that they had entered into a sales contract to sell their property to Thirteenth Street Associates, "a partnership to be formed with Varnum Armstrong Deeter, Inc., acting as the general partner therefor." Also included within the record is a portion of the Omaha city code.
In resistance to the motion were the affidavits of R. Gregory Swanson and David R. Stickman, attorneys for the plaintiff, and of Mort Sullivan, president of Eastroads. Swanson's affidavit alleges that he spoke with one of the persons who signed an affidavit regarding the contract of sale, and claims that she told him she did not remember giving anyone authority to submit the application for rezoning. Stickman asserts that after receiving notice of the hearing on the motion for summary judgment, he had insufficient time to prepare his resistance to the motion. He also claims to have a certificate from the county clerk of Douglas County stating that no copy of Thirteenth Street Associates limited or general partnership is "on file in that office." He further relates that, as to certain of the properties involved, "he has been able to determine that there is no explanation in the official record as to whether the aforesaid vendees gave their consent to the rezoning application at issue here."
Finally, the affidavit of Sullivan recites that attached to the affidavit are copies of land contracts which show sales contracts with the various owners and "Thirteen Street Associates, a partnership to be formed with Varnum/Armstrong/Deeter, Inc., general partner, buyer."
The Omaha Municipal Code requires an application for rezoning to contain the name and address of the owner and applicant and a statement that the applicant is the authorized agent of the property owner if the applicant is not the owner. As previously stated, the application submitted by Varnum lists Thirteenth Street Associates as the property owner and applicant and is signed by Ralph Varnum.
Thirteenth Street Associates was a limited partnership to be formed with Varnum as the general partner. At the time of the application, Thirteenth Street Associates was not registered as a limited partnership with the Secretary of State, as required by Neb.Rev.Stat. § 67-240(a) (Reissue 1986), nor were articles of partnership, as an association, on file with the county clerk of Douglas County, as required by Neb.Rev. Stat. § 67-101 (Reissue 1990).
The affidavit of Ralph Varnum, besides referring to the ownership of the various parcels of land, states that "Thirteenth Street Associates, Varnum/Armstrong/Deeter Inc., and Ralph W. Varnum acted as the authorized agents for the property owners within the Project whose property was included within the request for rezoning." The affidavit further states that at all times since the contracts were entered into, the owners have approved of the request by Thirteenth Street Associates and Varnum to seek rezoning of their property.
The first two assignments of errori.e., the ordinance was arbitrary and unreasonable, and the motion for summary judgment should not have been granted because there were questions of fact and the defendants were not entitled to judgment as a matter of lawmay be considered together.
Plaintiff contends that the ordinance was arbitrary and unreasonable because of a question of ownership of the property and authority of the applicant to act for the owners, and because the use for which the property was rezoned was not its highest and best use.
*893 In Beall v. Montgomery Council, 240 Md. 77, 88, 212 A.2d 751, 757 (1965), the Maryland Court of Appeals stated that "zoning ordinances are concerned with the use of property, the height of buildings and the density of population. They are not concerned with the ownership of the property involved and title to real property is not tried in zoning cases." (Emphasis in original.)
The court in Beall went on to quote from Heath v. M. & C.C. of Baltimore, 187 Md. 296, 49 A.2d 799 (1946), as follows: "`Mere irregularities in an application to a board for a permit not amounting to a jurisdictional defect do not affect the validity of the permit. A substantial compliance with the requirements of an administrative regulation in making an application for a permit is sufficient.'" Beall, supra 240 Md. at 89, 212 A.2d at 757.
"Substantial compliance with the requirements as to the application is sufficient. The validity of the permit is not affected by an irregularity in the application not amounting to a jurisdictional defect or by an immaterial discrepancy in the application, nor is such discrepancy grounds for refusal of the permit." 101 C.J.S. Zoning § 228 (1958). See, also, Wash. St. Prop. Owners Assn. v. Camden, 263 Ark. 649, 566 S.W.2d 733 (1978) (stating that irregularity can be cured by subsequent actions of the city board of directors enacting ordinance while fully cognizant of the prior irregularity); Binford v. Western Electric Co., 219 Ga. 404, 133 S.E.2d 361 (1963) (finding that language of statute providing that "property owners, or otherwise," could apply for rezoning, permitted application by an applicant which planned to construct office building on property but was not the owner of the property); Stout v. Jenkins, 268 S.W.2d 643 (Ky.1954) (finding that no prejudice was shown by the appellants in the filing of the application by the developer rather than the owner and that any irregularity in the application was waived when appellants failed to make the owner a party to the suit); Waites v. St. Louis County, 484 S.W.2d 245 (Mo.1972) (stating that once rezoning proceedings are started, proper notice is given, and hearing is held, the action the legislative body takes depends not on the identity of the owner but rather on the situation of the property, and thus the fact that the purchase contract of the developer who petitioned for rezoning expired before the property was rezoned did not render the rezoning ordinance invalid); Miner v. City of Yonkers, 19 Misc. 2d 321, 189 N.Y.S.2d 762 (1959) (holding that where under statute the common council had the right, independent of any petition, to propose a zone change, any irregularity in a petition for rezoning did not affect the validity of an ordinance granting the change); Midway Protective League v. City of Dallas, 552 S.W.2d 170 (Tex.Civ.App.1977) (concluding that amendments to rezoning should not be set aside lightly because of a procedural defect in their adoption, especially when the complaining parties had not shown any significant prejudice resulting from the procedural defect).
Based on the foregoing authorities, we hold that adjacent landowners do have standing to object to the rezoning of property; however, they do not have standing to object to an irregularity in the application itself without demonstrating any prejudice caused by the irregularity. Hence, plaintiff had no standing to attack any irregularity in the application for a zoning change by reason of ownership of the property. Following that same reasoning, the legal existence or nonexistence of Thirteenth Street Associates is immaterial to a decision herein.
Under the circumstances of this case, there is no dispute as to any material fact affecting the matter of ownership or agency. The showing made by defendants, in the absence of evidence to the contrary, establishes that the application was made by one having agency powers of the owners. All that the plaintiff displayed by its showing in opposition to summary judgment was that one of the owners who had given an affidavit establishing agency authority did not remember doing so. The other evidence produced by the plaintiff tended to corroborate the showing made by the defendants.
*894 A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that the moving party is entitled to judgment as a matter of law if the evidence presented for summary judgment remains uncontroverted. After the moving party has shown facts entitling it to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents a judgment as a matter of law for the moving party. Mason State Bank v. Sekutera, 236 Neb. 361, 461 N.W.2d 517 (1990). This rule is applicable here.
We now examine the remaining two assignments of error, i.e., the denial of a continuance and the court's finding that Eastroads did not have standing.
A continuance authorized by Neb.Rev.Stat. § 25-1335 (Reissue 1989) is within the discretion of the trial court, whose ruling will not be disturbed on appeal in the absence of an abuse of discretion. Wachtel v. Beer, 229 Neb. 392, 427 N.W.2d 56 (1988). A judicial abuse of discretion does not imply improper motive, bad faith, or intentional wrong by a judge, but requires the reasons or ruling of a trial judge to be clearly untenable, unfairly depriving a litigant of a substantial right and denying a just result. Id. There was no abuse of discretion, especially considering the failure of the plaintiff to object to the hearing on the motion for summary judgment.
In any event, other than the claimed irregularity in the application, the only specific complaint the plaintiff made was that the rezoned use was not the highest and best use of the subject property. However, the highest and best use is not a determinative factor in a rezoning challenge. County Comm. v. Mountain Air Ranch, 192 Colo. 364, 563 P.2d 341 (1977); Damick v. Planning & Zoning Commission, 158 Conn. 78, 256 A.2d 428 (1969); Watson v. Mayflower Property, Inc., 223 So. 2d 368 (Fla.App.1969). Rather, the highest and best use is a consideration in a condemnation proceeding. The highest and best use could not, under the present statutory law, be an issue in the consideration of the actions of the City and the planning board in rezoning the area in question. Neb.Rev.Stat. § 14-403 (Reissue 1987) sets forth the elements considered in rezoning:
Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to secure safety from flood; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements, and to promote convenience of access. Such regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality.
The highest and best use is not listed as a consideration in rezoning. Appropriate use and the highest and best use are not the same. The highest and best use of the property is not a factual question in this case; therefore, summary judgment would have been proper with regard to this issue if actually addressed.
Because this matter was submitted to the trial court as a matter of law, we review the matter de novo on the record. We find that there is no dispute as to any material fact, that the ordinance was properly enacted and is not illegal and invalid, that plaintiff is not entitled to a preliminary or permanent injunction, and that plaintiff therefore is entitled to no relief. The judgment of the district court, which dismissed plaintiff's petition, is affirmed.
AFFIRMED.
GRANT, J., not participating. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/739107/ | 110 F.3d 530
UNITED STATES of America, Appellee,v.Michael Joseph SCHAFFER, Appellant.
No. 96-2143.
United States Court of Appeals,Eighth Circuit.
Submitted Nov. 19, 1996.Decided April 1, 1997.
1
Paul Rosenberg, Des Moines, IA, argued, for appellant.
2
Edwin Kelly, Assistant U.S. Attorney, Des Moines, IA, argued, for appellee.
3
Before FAGG and HANSEN, Circuit Judges, and MAGNUSON,* District Judge.
4
MAGNUSON, District Judge.
5
Michael Joseph Schaffer challenges the thirty-month sentence imposed by the district court1 after he pled guilty to using or carrying a firearm during or in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1). We affirm.
I.
6
Michael Schaffer was arrested on drug charges during the execution of a search warrant at his residence on November 9, 1995. Within hours after his arrest, Schaffer waived his Miranda rights and agreed to cooperate with authorities. He told police about his involvement in a conspiracy to distribute cocaine base (crack cocaine), named his suppliers, and directed police to an undiscovered shotgun. Schaffer also admitted that he delivered the shotgun to a co-defendant in exchange for crack cocaine, thereby using and carrying a firearm during and in relation to a drug trafficking crime.
7
Schaffer entered into a plea agreement with the government shortly after his arrest. He agreed to plead guilty to Count 2 of the Indictment, Using and Carrying a Firearm During and in Relation to a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1), and Count 4 of the Indictment, Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841(a)(1). In exchange, the government agreed to move for a downward departure of twenty percent based on Schaffer's substantial assistance to authorities pursuant to 18 U.S.C. § 3553(e) and § 5K1.1 of the United States Sentencing Guidelines (the Guidelines). The plea agreement also specifically provided that Schaffer's sentence was to be determined under traditional Guidelines criteria.
8
Schaffer's Presentence Investigation Report determined that without a downward departure, the appropriate Guidelines sentencing range was 121 to 151 months for the drug count in addition to a consecutive 60-month sentence for the gun count. The calculation of Schaffer's sentencing range included a three-level reduction for acceptance of responsibility permitted by § 3E1.1 of the Guidelines. At sentencing, Schaffer argued that the statutory mandatory minimum sentence for a § 924(c)(1) violation should not be considered by the district court if the court granted the government's motion for downward departure under 18 U.S.C. § 3553(e), which permits the court to impose a sentence below a statutory minimum. Rather, Schaffer contended, the court should disregard the statutory sentence, apply a two-level enhancement to the drug count for possession of a firearm, and sentence in accordance with U.S.S.G. § 2D1.1(b)(1).
9
The district court disagreed and instead determined that the mandatory minimum sentence of sixty months was the appropriate starting point for any downward departure as to the § 924(c)(1) count. The court granted the government's motion for downward departure and imposed a total sentence of ninety-one months: sixty-one months on the drug count and thirty months on the gun count. This sentence represented a reduction on each count of approximately fifty percent rather than the twenty percent reduction requested by the government.
10
Schaffer also asked the district court to reduce his § 924(c)(1) sentence based on acceptance of responsibility, either as an adjustment or as a departure for "extraordinary" reasons. The court found that the Sentencing Commission had already accounted for the type of early assistance that Schaffer provided to the government via the three-level acceptance of responsibility reduction that Schaffer received under § 3E1.1 of the Guidelines. Schaffer appeals his sentence on the § 924(c)(1) count.
II.
A.
11
Schaffer argues first that the district court erred in using the sixty-month mandatory minimum sentence prescribed in 18 U.S.C. § 924(c)(1) as the starting point for its downward departure based on Schaffer's substantial assistance. The proper approach, Schaffer contends, would have been to increase his drug sentence by two levels for possession of a firearm pursuant § 2D1.1(b)(1) instead of imposing the consecutive sixty-month sentence. We review de novo a district court's application of the Guidelines and the relevant statutes. See United States v. Polanco, 53 F.3d 893, 895 (8th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 2555, 135 L.Ed.2d 1073 (1996); United States v. Hensley, 36 F.3d 39, 41 (8th Cir.1994).
12
Congress provided district courts with limited authority to sentence a cooperating defendant below a mandatory minimum sentence in 18 U.S.C. § 3553(e), which provides that
13
Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission....
14
18 U.S.C. § 3553(e). We have recognized implicitly that § 924(c)(1) mandates the type of minimum sentence that a district court may decrease following a government's § 3553(e) motion for substantial assistance. Cf. United States v. Carnes, 945 F.2d 1013, 1014 (8th Cir.1991) (finding that district court understood its authority to impose sentence of less than five years on § 924(c)(1) conviction but chose not to do so). As Schaffer acknowledges, the district court would have been unable to depart downward on the § 924(c)(1) conviction if the government had not filed its § 3553(e) motion. See United States v. Rodriguez-Morales, 958 F.2d 1441, 1447 (8th Cir.), cert. denied, 506 U.S. 940, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992).
15
Once a district court grants a § 3553(e) motion, thus permitting sentencing below the statutory minimum, it must impose a sentence "in accordance with the guidelines and policy statements issued by the Sentencing Commission." 18 U.S.C. § 3553(e). The Guidelines do not establish a base offense level for § 924(c)(1) or provide a method by which a Guideline sentence for § 924(c)(1) could be calculated; rather, the Guidelines direct courts to sentence in accordance with the statute. See U.S.S.G. § 2K2.4(a). The resulting course of action for the district court is circular; § 3553(e) refers the court to the Guidelines, which in turn refer it back to the statutory minimum sentence. Schaffer argues that by departing downward from the mandatory minimum sentence of sixty months instead of a sentence calculated pursuant to the Guidelines, the district court ignored the portion of § 3553(e), quoted above, that requires courts to rely on the Guidelines when calculating reduced sentences. To disregard the second sentence of § 3553(e), Schaffer reasons, would violate the long-established canon of statutory construction that all sections of a statute be given effect. See In re Windsor on the River Assocs., 7 F.3d 127, 130 (8th Cir.1993).
16
Schaffer maintains that the only way to give meaning to the entire text of § 3553(e) is to determine the initial sentence on both counts of his conviction as if the mandatory minimum sentence did not exist and then reduce that initial sentence in accordance with all Guideline principles. Because there is no specific offense level for a § 924(c)(1) conviction, § 2X5.1 of the Guidelines instructs the district court to apply the most analogous offense guideline. U.S.S.G. § 2X5.1. Schaffer believes that a two-level enhancement for possession of a firearm, listed as a specific offense characteristic of a drug trafficking crime under § 2D1.1(b)(1), is the Guideline offense most analogous to using or carrying a firearm during or in relation to a drug trafficking crime. If we were to adopt Schaffer's reasoning, his total offense level on the drug count would increase from 31 to 33, the 60-month consecutive sentence would be eliminated, and his sentencing range would decrease from 181-211 (121-151 plus an additional 60 months) to 151-188. Schaffer asserts that such an approach would calculate his sentence in accordance with the Guidelines, as the second sentence of § 3553(e) requires.
17
Whether the mandatory minimum sentence required by § 924(c)(1) is the proper starting point for a downward departure made pursuant to § 3553(e) is a question of first impression in this circuit. The only other court of appeals to address the issue as it pertains specifically to § 924(c)(1) found that the minimum sentence is the appropriate point of departure. See United States v. Aponte, 36 F.3d 1050, 1052 (11th Cir.1994). In Aponte, the Eleventh Circuit rejected without discussion the defendant's argument that the district court should have equated his § 924(c)(1) conviction with the unlawful receipt, possession, or transportation of firearms, U.S.S.G. § 2K2.1, and departed downward from a base offense level of 12 as provided by § 2K2.1(a)(7) of the Guidelines. See Aponte, 36 F.3d at 1052. The court approved of the district court's starting point of base offense level 24, which correlated to a sixty-month sentence based on the defendant's criminal history category of I. See id. at 1051.
18
We agree with the Eleventh Circuit that the mandatory minimum sentence of § 924(c)(1) is the proper departure point following a § 3553(e) motion based on substantial assistance. Section 3553(e) directs district courts to refer to the Guidelines when departing downward because of a defendant's substantial assistance. The Guidelines that pertain to § 924(c)(1) refer back to the statute, which requires a sixty-month minimum sentence. U.S.S.G. § 2K2.4(a). The most logical conclusion to draw from these circular references is that the mandatory minimum sentence becomes the Guideline sentence for purposes of § 3553(e). Cf. United States v. Hayes, 5 F.3d 292, 295 (7th Cir.1993) (finding that sentencing court correctly departed downward from mandatory minimum sentence imposed by 21 U.S.C. § 841(a)(1) rather than the lower Guideline range that would have applied absent statutory minimum; citing U.S.S.G. § 5G1.1(b), which provides that "[w]here a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence"). The district court correctly applied the Guidelines by departing downward from the sixty-month mandatory minimum sentence in sentencing Schaffer for his § 924(c)(1) conviction.
19
Moreover, the conduct that resulted in Schaffer's conviction under § 924(c)(1), using or carrying a firearm during or in relation to a drug trafficking crime, is significantly different and more serious than the conduct required for a two-level enhancement under § 2D1.1(b)(1), mere possession of a firearm. See Bailey v. United States, --- U.S. ----, ----, ----, 116 S.Ct. 501, 506, 509, 133 L.Ed.2d 472 (1995) (holding that conviction for "use" of firearm under § 924(c)(1) requires "active employment;" § 924 cannot be used to penalize drug-trafficking offenders for firearm possession). Schaffer's approach would permit Schaffer to be sentenced for a much lesser offense than the one to which he pled guilty. Such a result would fly in the face of the strict penalty that Congress has mandated for those who use or carry a firearm while trafficking in drugs.
B.
20
Schaffer also argues that the district court should have further reduced his § 924(c)(1) sentence for acceptance of responsibility, either as an adjustment or a departure. Schaffer correctly states that if a statute requires a consecutive sentence, as § 924(c)(1) does, that sentence must be determined and imposed independently of the sentences on the other counts. U.S.S.G. § 5G1.2(a). Consequently, Schaffer contends, the acceptance of responsibility adjustment provided in § 3E1.1 of the Guidelines, which the district court applied to the drug count at sentencing, should also be applied independently to the gun count. The government counters by arguing that because the § 924(c)(1) sentence is calculated independently and is statutorily mandated, it is not available for any Guideline adjustments.
21
The Guidelines provide that the adjustments set forth in Chapter Three, including acceptance of responsibility, are to be applied to the base offense level. See U.S.S.G. § 1B1.1(c)-(e). The implication from this Guideline instruction is that adjustments are not to be applied to mandatory statutory sentences. See United States v. Rodriguez, 64 F.3d 638, 641 (11th Cir.1995) (finding that Chapter Three adjustments are no longer relevant once a statutory maximum sentence becomes the Guideline sentence). The district court was correct not to adjust Schaffer's § 924(c)(1) conviction for acceptance of responsibility.
22
Alternatively, Schaffer maintains that the district court should have departed downward further on the § 924(c)(1) count based on extraordinary acceptance of responsibility. He contends that to disallow such a departure again ignores the second sentence of § 3553(e) by prohibiting the application of the Guidelines to his sentence and cites to an Eleventh Circuit case that purports to authorize such a departure. Rodriguez, 64 F.3d at 643(holding that district court has discretion to depart downward for acceptance of responsibility when § 5G1.1(a) renders § 3E1.1 ineffectual in reducing defendant's actual sentence).
23
We recently held that "a motion by the government under § 3553(e) for substantial assistance [is]'the only authority for [a] district court to depart below the statutorily mandated minimum sentence.' "2 United States v. Rabins, 63 F.3d 721 (8th Cir.1995) (quoting United States v. Rodriguez-Morales, 958 F.2d 1441, 1444 (8th Cir.), cert. denied, 506 U.S. 940, 113 S.Ct. 375, 121 L.Ed.2d 287 (1992)), cert. denied sub nom. Johnson v. United States, --- U.S. ----, 116 S.Ct. 1031, 134 L.Ed.2d 109 (1996). Furthermore, the Guidelines do not ordinarily recognize acceptance of responsibility as a reason for departure, U.S.S.G. § 5K, thus negating Schaffer's argument that we disregarded the second sentence of § 3553(e) in deciding Rabins. Section § 3553(e) does not authorize district courts to depart below the mandatory minimum for any reason other than substantial assistance. Schaffer is not entitled to any further reduction for acceptance of responsibility.
24
As a final note, we are aware of Schaffer's contention that the district court did not rule on his motion for further acceptance of responsibility at sentencing, thus requiring us to remand for resentencing. We disagree. A close examination of the sentencing transcript reveals that the district court did in fact consider and rule upon Schaffer's request for departure based on extraordinary acceptance of responsibility. Throughout the sentencing transcript, the district court often used the words "substantial assistance" interchangeably with "acceptance of responsibility." The district court found that Schaffer's early cooperation, while substantially assisting the government, did not warrant additional departure because "the guidelines commission has already taken into account the early assistance that [Schaffer] provided in giving him a three level--in considering that he would be eligible for a three-level reduction for substantial assistance which he received." (Tr. at 187-88.) The district court correctly calculated Schaffer's sentence in every respect.
25
For the reasons stated, the judgment of the district court is affirmed.
*
The Honorable Paul A. Magnuson, Chief Judge, United States District Court for the District of Minnesota, sitting by designation
1
The Honorable Charles R. Wolle, Chief Judge, United States District Court for the Southern District of Iowa
2
In 1994, Congress enacted 18 U.S.C. § 3553(f), the safety valve provision, which allows district courts to depart from the statutory minimum sentence under specified circumstances. Section § 3553(f) applies only to certain offenses under the Controlled Substances Act or the Controlled Substances Import and Export Act and does not pertain to violations of 18 U.S.C. § 924(c)(1) | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1599423/ | 161 Wis.2d 80 (1991)
467 N.W.2d 564
STATE of Wisconsin, Plaintiff-Respondent,
v.
Steven L. GUZMAN, Defendant-Appellant.[]
No. 90-1652-CR.
Court of Appeals of Wisconsin
Submitted on briefs January 31, 1991.
Decided February 27, 1991.
*84 On behalf of the defendant-appellant, the cause was submitted on the brief of Larry D. Steen, of Godfrey Neshek & Worth, S.C. of Elkhorn.
*85 On behalf of the plaintiff-respondent, the cause was submitted on the brief of Donald J. Hanaway, attorney general and David J. Becker, assistant attorney general.
Before Nettesheim, P.J., Scott and Anderson, JJ.
NETTESHEIM, P.J.
The issue on this appeal is whether the trial court subjected Steven L. Guzman to an unconstitutional search when the court ordered Guzman to undergo a surprise drug test just prior to Guzman's scheduled sentencing. We hold that the search was reasonable under the state and federal constitutions. We therefore affirm Guzman's conviction and the order denying his application for postconviction relief.
The relevant facts are straightforward and not in dispute. On January 23, 1989, the state charged Guzman as a party to the crime of unlawfully delivering a controlled substance, pursuant to secs. 161.41(1)(c)1 and 939.05(1), Stats. Guzman waived a preliminary hearing and pled not guilty. On August 14, 1989, Guzman appeared before the trial court, the Honorable Robert J. Kennedy, and changed his plea to guilty. The state agreed to remain silent on the matter of Guzman's sentence. The court directed the Department of Health and Social Services to prepare a presentence report.
As a result of a presentence interview with Guzman, the department agent stated in the presentence report "that he [Guzman] had moved to Denver, Colorado and `started over,' describing that he's working as a security officer, living on his own, and that he has been completely free of drugs." The agent also reported that Guzman "feels that his drug use started as a recreational tool and that this criminal prosecution has cured him of any idea that he would want to use drugs again." In addition, the agent reported that Guzman stated that "at the present time, he [Guzman] is using no illegal drugs." The *86 agent recommended that Guzman be placed on straight probation, fined $1000 and pay the costs of the prosecution. The agent also recommended that Guzman's probation be transferred to Coloradopursuant to Guzman's wish.
At the beginning of the sentencing hearing, Guzman's attorney confirmed in response to a question from the trial court that Guzman wished to be placed on probation. The court indicated that it would likely follow the presentence recommendation. The court, however, added the following qualification which lies at the heart of this appeal:
I have police officers here, I want to make sure that he has not had any contact with any cocaine or marijuana. I want him to go out for a screening test right now, to the Huber dorm, and the officers can take him out there right now. They will bring him right back after it's completed.
If that test were to be positive, obviously, they would take him over to the hospital for further testing; but if it's negative, then he's going to get his way. It will go along this presentence report.
My primary purpose in this particular case is, if I am satisfied that drugs are out of Steve's life, that they're gone, and I think they are, then I am going to go along with the type of sentence, this type of sentence, and let him go to Colorado, et cetera.
But if he has cocaine or marijuana in his system, then my sentence will be entirely different. I am revoking his bond temporarily for that purpose, and ordering the officers to take him over there for that screening test.
The trial court then recessed the sentencing proceeding to allow the authorities to conduct the screening urinalysis test. After the test was conducted, the court reconvened. Guzman's attorney then registered an objection *87 to the court's order, arguing, inter alia, that the order was an abuse of discretion and not supported by any probable cause or other foundation.
The trial court overruled Guzman's objections and announced that the test results showed the presence of cocaine. The court then continued the sentencing to a future date to allow the presentence report to be updated in light of the testing result and to allow for further testing.[1] The updated presentence report again recommended a probationary term. However, in addition to the previous conditions of probation, the updated report also recommended a condition of confinement in the county jail, an assessment for alcohol and/or drug abuse and compliance with any recommended treatment program.
At the continued sentencing hearing, the trial court recited not only the actual sentence but also contrasted it with the sentence which Guzman would have received had the drug test not proved positive: five years' probation instead of three years; six months' county jail confinement as a probation condition instead of no confinement; and a denial of Guzman's request for a transfer of his probation to Colorado instead of an approval of the transfer.[2]
By postconviction motion, Guzman renewed his objections to the trial court's drug testing procedure and order. The court denied the motion.[3] Guzman appeals.
*88 [1]
The state concedes that Guzman has standing to raise the issue, that governmental action is present, and that the fourth amendment is implicated by the facts of this case. In addition, we observe that the taking and collection of a urine sample is an intrusion which constitutes a search for fourth amendment purposes. Skinner v. Railway Labor Exec. Ass'n, 489 U.S. 602, 617 (1989). See also National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989).[4]
[2, 3]
This only begins the inquiry, however, for the fourth amendment does not proscribe all searches and seizures, but only those that are unreasonable. Skinner, 489 U.S. at 619. What is reasonable depends on all the circumstances surrounding the search or seizure and the nature of the search or seizure itself. Id. Thus, the permissibility of a particular practice is judged by balancing its intrusion on the individual's fourth amendment interests against its promotion of legitimate governmental interests. Id.
[4]
The issue before us presents a question of constitutional law; although we value the decision of the trial court on such a question, we review the matter independently without deference to the decision of the trial court. See State v. Griffin, 131 Wis.2d 41, 49, 388 *89 N.W.2d 535, 537 (1986), aff d, Griffin v. Wisconsin, 483 U.S. 868 (1987).
[5-7]
Except in certain well-defined circumstances, a search or seizure is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. Skinner, 489 U.S. at 619. A judicial warrant, however, is not required "when `special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.'" Id. (quoting Griffin, 483 U.S. at 873). When a claim of "special need" is made, the court must balance the governmental and privacy interests to assess the practicality of the warrant and probable cause requirements in the particular context. Skinner, 489 U.S. at 619.
"SPECIAL NEEDS"
[8-14]
Those "special needs" situations thus far recognized by the United States Supreme Court which permit searches without an attendant requirement of probable cause and a judicially-issued warrant include:
(1) search of a probationer's home, see Griffin, 483 U.S. at 868-90;
(2) search of premises of certain highly-regulated businesses, see New York v. Burger, 482 U.S. 691, 699-703 (1987);
(3) work-related searches of employees' desks and offices, see O'Connor v. Ortega, 480 U.S. 709, 721-26 (1987);
(4) search of student's property by school officials, see New Jersey v. T.L.O., 469 U.S. 325, 337-43 (1985);
(5) visual body cavity searches of prison inmates, see Bell v. Wolfish, 441 U.S. 520, 558-60 (1979); *90 (6) toxicology tests of railway employees who are involved in certain accidents or violate certain safety rules, see Skinner, 489 U.S. at 618-34; and
(7) toxicology tests for employees of the United States Customs Service seeking transfer or promotion to certain positions, see Treasury Employees, 489 U.S. at 665-79.
[15]
We first address whether this is a "special needs" situation. Wisconsin has a strong public policy of providing all relevant information to a trial court charged with the responsibility of sentencing a criminal defendant. State v. Mc Quay, 148 Wis.2d 823, 827, 436 N.W.2d 905, 906-07 (Ct. App. 1989), rev' d on other grounds, 154 Wis.2d 116, 452 N.W.2d 377 (1990). The withholding of relevant sentencing information is against public policy. Grant v. State, 73 Wis.2d 441, 448, 243 N.W.2d 186, 190 (1976). The United States Supreme Court has stated, "Highly relevantif not essentialto his [the sentencing court's] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." Williams v. New York, 337 U.S. 241, 247 (1949).
[16, 17]
Among the factors which a sentencing court properly considers is whether the crime is an isolated act or a pattern of conduct. McQuay, 154 Wis.2d at 126, 452 N.W.2d at 381. "The responsibility of the sentencing court is to acquire full knowledge of the character and behavior pattern of the convicted defendant before imposing sentence." State v. Rush, 147 Wis.2d 225, 230, 432 N.W.2d 688, 691 (Ct. App. 1988) (emphasis in original). In addition, the court must consider the need for protection of the public. Elias v. State, 93 Wis.2d 278, 284, 286 N.W.2d 559, 561 (1980).
*91 [18]
Here, the sentencing court was confronted with the important decision of whether to return Guzman, a convicted felon drug dealer, to the public domain on probationary status. The court's remarks at the opening of the initial sentencing proceeding indicate that it was leaning towards this sentencing alternative. Understandably, then, the court pondered whether Guzman truly had "reformed" and the effect of probation on the public's interest and safety.[5] Although not in a sentencing context, the law has recognized public safety concerns as "special needs" which may justify departure from probable cause and warrant requirements. See Skinner, 489 U.S. at 619-20, 627. The rights of the public are a primary consideration in any sentencing. McQuay, 154 Wis.2d at 126, 452 N.W.2d at 381. The sentencing court's need for information on these relevant sentencing factors support the state's argument that this is a "special needs" situation.
The law has also recognized that certain searches of probationers (see Griffin, 483 U.S. at 868-90) and prisoners (see Wolfish, 441 U.S. at 558-60) represent "special needs" situations. Using a similar approach, we recently held that the apprehension of a parolee without the usual warrant and probable cause requirements constitutes "special needs." State v. Pittman, 159 Wis.2d 764, 771, 465 N.W.2d 245, 248 (Ct. App. 1990). Akin to the "special needs" presented by these situations are those confronting a sentencing court when a search of the defendant is necessary in order to obtain relevant sentencing information.
*92 [19]
We conclude that when a sentencing court is considering the sentencing alternative of probation in a drugrelated case and the court needs to satisfy itself that the public's interest and safety are not jeopardized by such a sentence, a "special needs" condition exists such that the usual probable cause and warrant requirements may not pertain. The question then becomes whether this "special need" justifies the privacy intrusion absent a warrant or probable cause. See Skinner, 489 U.S. at 621.
NECESSITY FOR A JUDICIAL WARRANT
As to whether the "special needs" presented by this sentencing nonetheless required a judicially issued search warrant, we first address what we view as the most important considerationGuzman's status as a convicted felon on the brink of sentencing.
Our supreme court's discussion of a probationer's status under the fourth amendment is instructive on this question. We noted this same language in Pittman:
If there is to be an exception to the requirements of the fourth amendment granting probation agents a limited right to search or seize a probationer without a warrant, the foundation for this exception lies in the nature of probation itself. Probation, like parole, "is an integral part of the criminal justice system and has as its object the rehabilitation of those convicted of crime and the protection of the state and community interest." [Citation omitted.] . . .
A sentence of probation places the probationer "in the custody of the department" subject to the conditions of probation and rules and regulations of the Department of Health and Social Services . . . .
*93 The imposition of these conditions, rules and regulations demonstrates that while a probationer has a conditional liberty, this liberty is neither as broad nor as free from limitations as that of persons who have not committed a crime. The expectations of privacy of a person on probation cannot be the same as the expectations of privacy of persons not on probation. It is only the reasonable expectations of privacy which the fourth amendment protects. [Footnote omitted.] Conditions of probation must at times limit the constitutional freedoms of the probationer. [Emphasis added.]
Pittman, at 768-69, 465 N.W.2d at 246-47 (quoting State v. Tarrell, 74 Wis.2d 647, 653-54, 247 N.W.2d 696, 700-01 (1976)).
[20]
We conclude that this logic applies with equal persuasion to a convicted offender awaiting sentencing. Guzman cannot reasonably expect the full enjoyments of privacy protection when he has been convicted, is awaiting sentencing, and then urges a sentencing alternative which invokes considerations of the public's interest and safety. If probation itself represents a situation where judicially issued warrants are not required, we conclude that a sentencing proceeding which seeks to determine whether an offender is an appropriate candidate for probation should also not be so constrained.
If certain forms of employment may diminish privacy expectations of noncriminal citizens even as to personal searches, see Treasury Employees, 489 U.S. at 671, such diminished expectations must certainly apply to those convicted of a felony where the facts show a "special need."
Moreover, the government's interest in dispensing with the warrant requirement is at its strongest when, as *94 with drug tests, the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search. Skinner, 489 U.S. at 623.
We conclude that a warrant is not essential to render the intrusion here reasonable under the fourth amendment.
PROBABLE CAUSE
[21, 22]
As a general matter, even where a warrant is not required, a search must be supported by probable cause, or at least individualized suspicion, to believe that the person to be searched has violated the law. Id. at 624. However, in limited circumstances, where the privacy interests implicated by the search are minimal, and where an important governmental interest furthered by the intrusion would be placed in jeopardy by a requirement of probable cause or individualized suspicion, a search may be reasonable despite the absence of such suspicion. Id.
[23]
Here again, expectation of privacy considerations are relevant. See id. at 624-27. In fact, we consider them paramount in a case such as this. Here we recall, without fully repeating, our earlier discussion on this point. Suffice it to say again that Guzman, as a convicted felon awaiting sentencing, cannot reasonably expect the full privacy protections, including probable cause requirements, usually accorded the ordinary citizen.
In addition, the probable cause standard "is peculiarly related to criminal investigation." Treasury Employees, 489 U.S. at 667. While this was a criminal prosecution, the purpose of the search was not to uncover further suspected criminal activity by Guzman, *95 but rather to more fully inform the court on relevant sentencing factors.
The nature of the privacy intrusion is also relevant to a probable cause inquiry. See Skinner, 489 U.S. at 626. We are not insensitive to the requirement that Guzman perform an excretory function in order to comply with the trial court's order that he submit a urine sample. This raises concerns not implicated by blood or breath tests. Id. On the other hand, the giving of a urine sample does not entail the direct bodily intrusion associated with a blood test. Regardless, the United States Supreme Court has held that the giving of a blood, breath, or urine sample for testing cannot, by itself, be said to infringe significant privacy interests. Id. at 633.[6] Weighed against the sentencing court's legitimate need for relevant and current information on Guzman's "drug status" at the time of the initial sentencing proceeding, we conclude that Guzman's privacy interest must defer.
Therefore, under the facts of this case, we conclude that a prior showing of probable cause or individualized suspicion was not a prerequisite to the type of search authorized by the sentencing court.
CONCLUSION
Under the facts of this case, the sentencing court's compelling interest for important and relevant sentencing information constituted a "special needs" situation. These needs outweighed Guzman's privacy interests to the extent that a warrant and attendant probable cause *96 were not required. The search conducted as a result of the sentencing court's order was reasonable under the fourth amendment of the federal constitution and art. I, sec. 11 of the Wisconsin Constitution.[7]
By the Court.Judgment and order affirmed.
NOTES
[] Petition to review granted.
[1] The record does not reveal whether any further testing of the test sample ever occurred. Guzman never raised any issue in the trial court concerning the accuracy of the test.
[2] The trial court imposed other conditions of probation which would have been imposed regardless of the drug test results.
[3] The Honorable John R. Race presided at the postconviction proceeding and denied Guzman's postconviction motion.
[4] Because our supreme court "has consistently and routinely conformed the law of search and seizure under the state constitution to that developed by the United States Supreme Court under the fourth amendment" (State v. Fry, 131 Wis.2d 153, 172, 388 N.W.2d 565, 573, cert. denied, 479 U.S. 989 (1986)), we address the appellate issue in "fourth amendment" terms intending that our language also governs Guzman's arguments under the Wisconsin Constitution.
[5] At the initial sentencing hearing, the trial court observed, "If I'm . . . going to put the public's neck on the line, then I am going to make it as sure as I can that I'm doing something that will not harm the public in terms of drug dealing in the future."
[6] We also note that the trial record is sparse as to the specifics regarding the taking and collection of the urine sample from Guzman. We simply know it occurred. We don't know the attendant circumstances or any insensibilities beyond those suggested by the event itself. Guzman raises no issues on those points.
[7] Because we uphold the search, we need not address the state's alternative argument that the "good faith" exception to the exclusionary rule under United States v. Leon, 468 U.S. 897 (1984), salvages the testing procedure and results in this case. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599509/ | 729 So. 2d 726 (1999)
Glenn R. MARTIN, et ux., Plaintiffs-Appellants,
v.
STONE CONTAINER CORPORATION, et al., Defendants-Appellees.
No. 31,544-CA.
Court of Appeal of Louisiana, Second Circuit.
February 24, 1999.
Chris L. Bowman, Jonesboro, Counsel for Plaintiffs-Appellants.
Lemle & Kelleher by Michael J. Furman, New Orleans, Counsel for Defendant-Appellee, B E & K Construction Co.
Hayes, Harkey, Smith & Cascio by Donald C. Douglas, Jr., Monroe, Counsel for Defendant-Appellee Horizon Steel Erectors.
Before NORRIS, WILLIAMS and PEATROSS, JJ.
NORRIS, Chief Judge.
The plaintiffs, Glenn and Jeanne Martin, appeal a summary judgment that dismissed two defendants, Horizon Steel Erectors Inc. and B E & K Construction Co., from their tort suit. For the reasons expressed, we affirm.
Factual background
The pleadings, attachments and statement of uncontested material facts show that Stone *727 Container Corp., a defendant herein, operated a paper mill in Hodge, Louisiana. In 1989 Stone engaged B E & K as general contractor to construct a new recovery boiler at the mill. In late 1990 B E & K engaged Horizon as a subcontractor to erect the steel framework of the building to house the new boiler. Following written plans and oral directions from B E & K personnel, Horizon installed steel guardrails at various levels of the project.
Glenn Martin was employed by B E & K as a carpenter on the boiler project. On the morning of May 22, 1991 Martin entered the basement level in a hatchway area. A load of scaffolding which was being lifted from an upper level accidentally caught a section of the steel guardrail, pulling it loose from its metal sleeve and causing it to fall about 120 feet. The guardrail, which weighed 100-125 lbs., struck Martin and seriously injured him. B E & K had informed its employees generally, and Martin specifically, not to work in the hatchway while materials were being hoisted.
B E & K's compensation carrier, St. Paul Fire & Marine Insurance, began paying Martin weekly benefits, medical expenses and rehabilitation costs. In May 1992 the Martins filed the instant tort suit against B E & K, Stone, Horizon, and two of B E & K's employees. After discovery, all defendants moved for summary judgments. After a hearing in October 1996, the District Court denied the motion with respect to Stone but granted it as to all other defendants. The Martins have devolutively appealed the judgment with respect to B E & K and Horizon. The District Court later certified her ruling as a partial final judgment in accord with La. C.C.P. art. 1915 B and Banks v. State Farm Ins. Co., 30,868 (La. App. 2 Cir.3/5/98), 708 So. 2d 523.
Summary judgment procedure
Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of every action, except those disallowed by law; the procedure is favored and must be construed to accomplish these ends. La. C.C.P. art. 966 A(2). After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted. Art. 966 C(1). The burden of proof remains with the mover. Art. 966 C(2). However, when a motion for summary judgment has been filed and supported by evidence, the adverse party may no longer rely on the mere allegations or denials of his pleadings, but through affidavits or otherwise must set forth evidence demonstrating there is a genuine issue for trial. La. C.C.P. art. 967; Simoneaux v. E.I. du Pont de Nemours & Co., 483 So. 2d 908 (La.1986); Berzas v. OXY USA Inc., 29,835 (La.App. 2 Cir. 9/24/97), 699 So. 2d 1149. Appellate review of summary judgment is de novo, utilizing the same criteria that guide the trial court's grant of the judgment. Guillory v. Interstate Gas Station, 94-1767 (La.3/30/95), 653 So. 2d 1152.
Discussion
By their first assignment the Martins contest the summary judgment in favor of Horizon. They urge that a genuine issue of material fact exists, i.e., whether Horizon owed a duty to warn Martin of the hazardous condition of the guardrails. The District Court found that Horizon was neither the designer nor the fabricator of the rails or the sockets in which they fit; rather, B E & K designed the rails to be stabilized against lateral movement by steel wedges, and instructed Horizon not to insert the wedges, so the rails could be easily removed during the construction process. In brief the Martins do not contest these findings,[1] but argue that an installer may owe a duty to warn third persons of the hazardous condition of the thing installed, separate and apart from the manufacturer's duty to warn. In support, they cite Brooks v. Henson Fashion Floors, 26,378 (La.App. 2 Cir. 12/7/94), 647 So. 2d 440.
*728 The applicable law is R.S. 9:2771, which grants immunity to any contractor who performs work:
according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction * * * was due to any fault or insufficiency of the plans or specifications.
This statute extends immunity to contractors from tort claims by third persons. Bernard v. State, 93-1376 (La.App. 3 Cir. 6/1/94), 640 So. 2d 694, writ denied 94-1814 (La.10/14/94), 643 So. 2d 165; Rosato v. Louisiana Dept. of Transp. & Dev., 97-2543 (La. App. 4 Cir. 5/27/98), 714 So. 2d 862. "With respect to tort claims brought by third parties it [the immunity] is available only absent a showing either that the situation created was not hazardous or that the contractor had no justifiable reason to believe a hazardous condition was created." Rosato, 714 So.2d at 867. The defendant in Rosato obtained summary judgment on the showing that it complied with all specifications provided by the owner, DOTD. The plaintiff failed to present summary judgment evidence to dispute compliance or to suggest that the condition was hazardous.
In the instant case B E & K's project supervisor, Jerry Moses, testified by deposition that he instructed Horizon not to insert the wedges. Ray Miller, a co-worker of Martin's, confirmed that the rails were intended to be easily removed to facilitate the construction process. This evidence is sufficient to show that Horizon complied with the general contractor's plans and specifications and there was nothing improper about the design; thus Horizon is entitled to the immunity of R.S. 9:2771 as a matter of law. Counsel for the Martins conceded that no countervailing affidavits or depositions were filed. R.p. 221. Instead, the plaintiffs reiterate the conclusory allegation that there was a duty to warn, and suggest that perhaps Horizon did not actually follow specifications. Br., 4-5. Unsupported allegations do not undermine the showing made by Horizon. Berzas v. OXY USA Inc., supra.
In sum, the Martins have not shown there is any genuine issue of material fact clouding Horizon's right to the immunity of R.S. 9:2771. Summary judgment is appropriate.[2]
By their second assignment the Martins contest the summary judgment in favor of B E & K. They concede that Martin was an employee of B E & K's and was working at the time of the accident; this would relegate him to the exclusive remedy of worker's compensation, La. R.S. 23:1032 A(1)(a). However, they argue that Martin may still assert a tort claim based on B E & K's dual capacity as employer and as contractor who has assumed the owner's liability by contract. In support they cite Stelly v. Overhead Door Co., 94-0569 (La.12/8/94), 646 So. 2d 905.
Since an amendment effective on January 1, 1990, R.S. 23:1032 A(1)(b) has provided:
This exclusive remedy is of all claims, including any claims that might arise against his employer, or any principal or any officer, director, stockholder, partner, or employee of such employer or principal under any dual capacity theory or doctrine.
The Martins first argue that because the contract between B E & K and Stone was entered before the effective date of the amendment, the pre-amendment law should apply. This is erroneous; the date of injury determines which version of the comp law will apply. See, e.g., Bruno v. Harbert Int'l Inc., 593 So. 2d 357 (La.1992).
The Martins also argue, without elaboration, that the post-amendment version of R.S. 23:1032 does not abrogate dual capacity if it is based on the employer's contractual assumption of the owner's duties.[3] Since Stelly, however, the appellate courts have uniformly held that the amended version of R.S. 23:1032 precludes any tort claim against *729 an employer, even against an employer who has contractually assumed the owner's liability. Douglas v. Hillhaven Rest Home, Inc., 97 0596 (La.App. 1 Cir. 4/8/98), 709 So. 2d 1079, writ denied 98-1793 (La.10/30/98), 727 So. 2d 1161, and citations therein. Like the court in Douglas, we feel that Stelly is limited to the time frame and facts presented therein.
Simply put, B E & K has shown that it is entitled to the employer's immunity from tort action as a matter of law, R.S. 23:1032, and the Martins have produced no evidence or argument to refute it. Summary judgment is appropriate.
Conclusion
For the reasons expressed, the judgment is affirmed at the plaintiffs' costs.
AFFIRMED.
NOTES
[1] We note that not all the deposition extracts referred to in Horizon's motion for summary judgment have been included in the appellate record. However, the plaintiffs take no issue with this; and in light of the new favored status of summary judgment procedure, we have no reason not to accept the characterization of these documents by the parties and the District Court.
[2] Brooks v. Henson Fashion Floors Inc., supra, is distinguished in that the contractor did not show that its method of applying glue and advising pedestrians of the condition was in compliance with the owner's plans and specifications.
[3] The Stelly court stated, in footnote 9: "Since the Stellys' action is governed by the pre-1990 version of LSA-R.S. 23:1032, we decline to address the impact of the post-amendment version on this action and/or whether the statute refers to Louisiana's traditional dual capacity doctrine or a more expansive version of the doctrine." | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1601898/ | 869 So. 2d 995 (2004)
Gary Carl SIMMONS, Jr.
v.
STATE of Mississippi.
No. 2002-DR-00196-SCT.
Supreme Court of Mississippi.
January 29, 2004.
Rehearing Denied April 22, 2004.
*997 Office of Capital Post-Conviction Counsel by Robert M. Ryan, attorney for appellant.
Office of the Attorney General by Judy T. Martin Marvin L. White, Jr., attorneys for appellee.
EN BANC.
SMITH, Presiding Justice, for the Court.
¶ 1. Gary Carl Simmons, Jr., was convicted of capital murder and sentenced to death for the murder of Jeffery Wolfe. Simmons was also convicted of the rape and kidnaping of Wolfe's female companion. On direct appeal Simmons raised twenty-seven issues. This Court found *998 those issues to be without merit and affirmed Simmons's conviction and death sentence. See Simmons v. State, 805 So. 2d 452 (Miss.2001), cert. denied, 537 U.S. 833, 123 S. Ct. 142, 154 L. Ed. 2d 51 (2002).
¶ 2. Simmons subsequently filed his Motion for Leave to Proceed in the Trial Court with a Petition for Post-Conviction Relief, Supplement/Amendment to Petition for Post-Conviction Relief, Correction to Supplement/Amendment, and Supplemental Authority with this Court. The State has filed its Response, and Simmons has filed his Reply Brief.
¶ 3. Simmons's Petition for Post-Conviction Relief raises the following issues:
I. PETITIONER WAS UNFAIRLY DENIED BY THE TRIAL COURT OF HIS RIGHT TO PRESENT TO THE TRIAL JURY A VIDEOTAPE HE HAD MADE WITHIN HOURS AFTER THE OFFENSE IN WHICH HE HAD EXPRESSED REMORSE, HUMANITY AND DEMEANOR PARTICULARLY AT THE PENALTY PHASE, IN VIOLATION OF ESTABLISHED FEDERAL AND STATE CASE LAW.
II. PETITIONER WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WITHIN THE MEANING OF STRICKLAND v. WASHINGTON.
A. Trial Counsel's Inadequate Investigation and Presentation of Mitigation Factors at the Penalty Phase.
B. DNA Evidence.
C. Cumulative Effect of Counsel's Failure to Make Contemporaneous Objections to Damaging Testimony, the Result of Which was Ineffective Assistance of Counsel Within the Meaning of Strickland v. Washington.
III. SIMMONS WAS DENIED THE EFFECTIVE ASSISTANCE OF CONFLICT FREE COUNSEL AND THE FAILURE OF THE TRIAL COURT TO INQUIRE INTO THE CONFLICT VIOLATED HIS FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENT RIGHTS AND CORRESPONDING PROVISIONS OF THE MISSISSIPPI CONSTITUTION.
IV. THE MITIGATION TESTIMONY OF LORI SIMMONS, EX-WIFE OF THE PETITIONER, WAS UNFAIRLY LIMITED BY THE TRIAL COURT AND AS A RESULT SIMMONS WAS DENIED HIS FUNDAMENTAL CONSTITUTIONAL RIGHT TO CALL WITNESSES TO TESTIFY ON HIS BEHALF.
V. THE TRIAL COURT ERRED IN SUBMITTING TO THE JURY THE AGGRAVATING CIRCUMSTANCE THAT THE DEFENDANT KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.
VI. THE PETITIONER'S MOTIONS FOR A CONTINUANCE SHOULD HAVE BEEN GRANTED AND THE FAILURE TO DO SO WAS REVERSIBLE ERROR.
VII. THE SENTENCE RENDERED AGAINST PETITIONER GARY CARL SIMMONS IS DISPROPORTIONATE TO THAT OF HIS CO-DEFENDANT, THE PERSON WHO SHOT AND KILLED JEFFERY WOLFE, IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CORRESPONDING *999 PORTIONS OF THE MISSISSIPPI CONSTITUTION.
VIII. PETITIONER WAS DENIED HIS RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE FEDERAL CONSTITUTION AND MISSISSIPPI LAW DUE TO THE CUMULATIVE EFFECT OF THE ERRORS AT HIS CAPITAL TRIAL.
¶ 4. Simmons's Supplement/Amendment to Petition raises the following supplemental issues:
IX. THE AGGRAVATING FACTORS ELEVATING THE CHARGE TO A CAPITAL OFFENSE WERE NOT INCLUDED IN SIMMONS' INDICTMENT AND THEREFORE HIS DEATH PENALTY MUST BE VACATED.
A. In Ring v. Arizona, the U.S. Supreme Court held that aggravating circumstances function as elements of the offense of capital murder.
B. In its requirement that at least one aggravating circumstance be found before the death penalty can be imposed, Mississippi's capital sentencing scheme is indistinguishable from the Arizona scheme rejected in Ring.
C. Capital murder may be charged only upon an indictment alleging all of the elements of the crime to be proved.
X. THE TRIAL COURT ERRED IN CHARGING THE TRIAL JURY WITH STATE REQUESTED INSTRUCTION S-11 AS THE SAME IS AN INCORRECT STATEMENT OF THE LAW OF THE STATE AND AS A RESULT SIMMONS WAS UNFAIRLY PREJUDICED AND DENIED A FUNDAMENTALLY FAIR TRIAL.
¶ 5. The State has moved to strike the issues raised in the Supplement/Amendment, saying they could have been raised earlier. We deny the motion to strike, as this Court granted Simmons time to supplement his initial Petition for Post-Conviction Relief, and the Supplement/Amendment was filed as a result.
FACTS
¶ 6. Jeffery Wolfe and Charlene Brooke Leaser drove from Houston, Texas, to Jackson County, Mississippi, in August 1996 to collect money owed Wolfe from a drug transaction. Wolfe and Leaser met with Gary Simmons and Timothy Milano at Simmons's house on the evening of August 12. Initially the men discussed the money owed to Wolfe, but after failing to resolve the matter Milano shot Wolfe with a .22 caliber rifle. Simmons then bound Leaser and locked her in a metal box. Leaser tried repeatedly to escape from the box, and on one occasion Simmons heard her attempting to escape, removed her from the box and raped her. He then returned her to the box. Simmons then dismembered Wolfe's body and dumped the various body parts in the bayou behind his house. Leaser eventually escaped and convinced a neighbor to call the police.
DISCUSSION
I. EXCLUSION OF A VIDEOTAPE.
¶ 7. Simmons made a videotape of himself after the murder of Wolfe and sent it to his wife, who in turn delivered it to his lawyer. The videotape was eventually produced to the State. Simmons did not testify at trial but attempted to introduce the videotape. The trial court excluded the videotape, and Simmons raised this as error on direct appeal. This Court found *1000 that the videotape inadmissible because it was hearsay and not relevant. Simmons, 805 So.2d at 488. Three members of the Court acknowledged that the videotape was properly excluded in the guilt phase of the trial, but found that it should have been admitted during the sentencing phase as part of Simmons's mitigating evidence. Simmons, 805 So.2d at 508-11 (Diaz, J., concurring in part and dissenting in part).
¶ 8. Simmons argues that it was error for the trial court to exclude the videotape during the sentencing phase because (1) it showed remorse by Simmons and would have rebutted the prosecution's argument during sentencing that Simmons showed no remorse and (2) the admission of evidence should be relaxed during the sentencing hearing.
¶ 9. The State argues that Simmons's argument is barred under Miss.Code Ann. § 99-39-21, which provides in part:
(1) Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.
(2) The litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and actual prejudice.
(3) The doctrine of res judicata shall apply to all issues, both factual and legal, decided at trial and on direct appeal.
¶ 10. We agree and hold that Simmons's argument is barred by res judicata.
II. EFFECTIVE ASSISTANCE OF COUNSEL.
¶ 11. This Court has stated the following on ineffective assistance of counsel and the standard provided in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984):
"The benchmark for judging any claim of ineffectiveness [of counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). A defendant must demonstrate that his counsel's performance was deficient and that the deficiency prejudiced the defense of the case. Id. at 687, 466 U.S. 668, 104 S. Ct. 2052. "Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable." Stringer v. State, 454 So. 2d 468, 477 (Miss.1984) (citing Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. 2052). The focus of the inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Id.
Judicial scrutiny of counsel's performance must be highly deferential. (citation omitted) ... A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct *1001 from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'
Stringer, 454 So.2d at 477 (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2052). Defense counsel is presumed competent. Id.
Then, to determine the second prong of prejudice to the defense, the standard is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Mohr v. State, 584 So. 2d 426, 430 (Miss.1991). This means a "probability sufficient to undermine the confidence in the outcome." Id. The question here is:
whether there is a reasonable probability that, absent the errors, the sentencerincluding an appellate court, to the extent it independently reweighs the evidencewould have concluded that the balance of the aggravating and mitigating circumstances did not warrant death. Strickland, 466 U.S. at 695, 104 S.Ct. at 2068.
There is no constitutional right then to errorless counsel. Cabello v. State, 524 So. 2d 313, 315 (Miss.1988); Mohr v. State, 584 So. 2d 426, 430 (Miss. 1991) (right to effective counsel does not entitle defendant to have an attorney who makes no mistakes at trial; defendant just has right to have competent counsel). If the post-conviction application fails on either of the Strickland prongs, the proceedings end. Neal v. State, 525 So. 2d 1279, 1281 (Miss.1987); Mohr v. State, 584 So. 2d 426 (Miss.1991).
Davis v. State, 743 So. 2d 326, 334 (Miss. 1999) (citing Foster v. State, 687 So. 2d 1124, 1130 (Miss.1996)).
Brown v. State, 798 So. 2d 481, 493-94 (Miss.2001).
A. Trial Counsel's Investigation and Presentation of Mitigation Factors at the Penalty Phase.
¶ 12. Simmons called the following witnesses in his sentencing hearing: Jewell Simmons, his paternal grandmother; Milton Dupuis, his half-brother; Dana Vanzante, a friend; Lynette Holmes, a friend of Simmons's ex-wife, Lori; Belinda West, Simmons's half-sister; and Lori Simmons, Simmons's ex-wife. The witnesses testified that Simmons was a good person, a loving husband and father to his two daughters, and he was a different person from the one portrayed at trial. Milton Dupuis testified that his father, Gary's stepfather, beat them "every day just about," and Gary got the worst of it because he was the oldest. Dupuis testified that his father also beat their mother and once when Gary tried to defend her, the stepfather shot at him. Dupuis stated that Gary led him to have a religious conversion, but when Gary and Lori divorced, Gary started making bad decisions. There was also testimony that Gary had been barred from residing in the house with Lori's two older children from another marriage, but the reasons given for this were not clear. Simmons argues that his counsel was ineffective for failure to adequately investigate his background and family and to procure a professional expert to evaluate this information for the jury.
¶ 13. Simmons cites Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000), where the United *1002 States Supreme Court found that counsel had been ineffective at the sentencing phase of trial because of counsel's failure to investigate and uncover proof of Williams's tragic childhood because counsel thought that state law barred access to certain relevant records. The Court said counsel could have discovered that Williams's parents had been imprisoned for criminal neglect of their children, that Williams had been beaten by his father, that Williams had spent time in an abusive foster home, that Williams was borderline mentally retarded and did not advance past the sixth grade in school, and that Williams had helped authorities during his stay in prison.
¶ 14. Simmons also cites Jackson v. Calderon, 211 F.3d 1148 (9th Cir.2000), where Jackson's attorney was found to have been ineffective in the sentencing phase for spending about two hours investigating in preparation for sentencing and calling only Jackson's estranged wife and mother as witnesses. In invalidating the death sentence, the Ninth Circuit stated that Jackson's attorney never investigated beyond the mother and wife because he never expected the case to reach the sentencing phase, and he never investigated or presented evidence concerning Jackson's addiction to PCP or his PCP intoxication at the time of the murder, never investigated a separate aggravating factor, and never investigated beatings Jackson had endured as a child or signs that Jackson was mentally ill. See also Smith v. Stewart, 140 F.3d 1263 (9th Cir.1998) (death sentence vacated where counsel presented no mitigating evidence when evidence concerning mental problems, drug abuse and family ties was available).
¶ 15. Simmons cites Castro v. Oklahoma, 71 F.3d 1502 (10th Cir.1995), which is not an ineffective assistance of counsel case. Castro deals with whether the trial court erred in refusing to provide funds for a psychiatric expert for Castro's defense.
¶ 16. Simmons finally cites Wiggins v. Smith, 539 U.S. 510, 123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003), where the United States Supreme Court found that Wiggins received ineffective assistance of counsel because his trial counsel had failed to investigate and present mitigating evidence of Wiggins's background, including physical and sexual abuse committed by his mother, by a series of foster parents, and a Job Corps supervisor, as well as evidence of mental retardation. Counsel for Wiggins failed to make this investigation even though the State made funds available for this purpose. Trial counsel instead attempted to show that Wiggins was not responsible for the murder in question. The Supreme Court stated:
In finding that Schlaich and Nether-cott's investigation did not meet Strickland's performance standards, we emphasize that Strickland does not require counsel to investigate every conceivable line of mitigating evidence no matter how unlikely the effort would be to assist the defendant at sentencing. Nor does Strickland require defense counsel to present mitigating evidence at sentencing in every case. Both conclusions would interfere with the "constitutionally protected independence of counsel" at the heart of Strickland, 466 U.S., at 689, 104 S. Ct. 2052. We base our conclusion on the much more limited principle that "strategic choices made after less than complete investigation are reasonable" only to the extent that "reasonable professional judgments support the limitations on investigation." Id., at 690-691, 104 S. Ct. 2052. A decision not to investigate thus "must be directly assessed for reasonableness in all the circumstances." Id., at 691, 104 S. Ct. 2052. *1003 Counsel's investigation into Wiggins' background did not reflect reasonable professional judgment. Their decision to end their investigation when they did was neither consistent with the professional standards that prevailed in 1989, nor reasonable in light of the evidence counsel uncovered in the social services recordsevidence that would have led a reasonably competent attorney to investigate further. Counsel's pursuit of bifurcation until the eve of sentencing and their partial presentation of a mitigation case suggest that their incomplete investigation was the result of inattention, not reasoned strategic judgment. In deferring to counsel's decision not to pursue a mitigation case despite their unreasonable investigation, the Maryland Court of Appeals unreasonably applied Strickland. Furthermore, the court partially relied on an erroneous factual assumption. The requirements for habeas relief established by 28 U.S.C. §§ 2254(d) are thus satisfied.
Wiggins, 539 U.S. at ___ - ___, 123 S.Ct. at 2541-42.
¶ 17. The State argues that Simmons's counsel was not ineffective for failure to procure a psychological or mitigation expert because he was not entitled to one. The State cites Bishop v. State, 812 So. 2d 934, 939-40 (Miss.2002), where this Court stated:
A defendant is not entitled to a psychological expert where he has not raised insanity as a defense or where the State does not plan to submit psychological evidence against the defendant. Ladner v. State, 584 So. 2d 743, 757 (Miss.1991); Nixon v. State, 533 So. 2d 1078, 1096 (Miss.1987). As we have stated, "[w]here a defendant offers no more `than undeveloped assertions that the requested assistance would be beneficial,' no trial court is under an obligation to provide him with fishing equipment." Griffin v. State, 557 So. 2d 542, 550 (Miss.1990) (quoting Caldwell v. Mississippi, 472 U.S. 320, 323 n. 1, 105 S. Ct. 2633, 2637 n. 1, 86 L. Ed. 2d 231 (1985)). Bishop did not raise an insanity defense; he offered no facts which would show that there was a need to develop mitigating evidence based on psychological problems; and he underwent a thorough psychological evaluation performed at the State Hospital which produced no mitigating evidence.
We therefore find that Bishop was not entitled to a psychological expert for the purpose of developing mitigating evidence.
In this case Simmons did not raise an insanity defense. His mental condition was not an issue in this case.
¶ 18. In addition, Simmons offers no evidence now which supports his claim that his trial counsel should have investigated more thoroughly, or in certain areas, even under the authority he cites. Simmons offers nothing in support from mental health experts who can now say what an investigation of Simmons or his family background would have shown, or what such experts would now be willing to testify to. Simmons offers nothing from his trial attorney on how much time he spent preparing for the sentencing phase and why he did not feel the need to offer more or different evidence on mitigation. In Wiggins v. Smith, Jackson v. Calderon, and Williams v. Taylor refer to potential mitigation evidence contained in school records, hospital records, prison records and expert findings. Here Simmons presents the affidavits of an investigator from the Office of Capital Post-Conviction Counsel, who interviewed Simmons's grandmother and sister, Jewel and Belinda Simmons. The first affidavit states that Jewel Simmons loved Gary and was upset *1004 with the verdict. The affidavit further states that Gary's father refused to talk to the investigator and that Jewel would not sign an affidavit because of Gary's father. Gary's mother, Mildred, never attended the trial because she was embarrassed. Mildred had a gambling problem which caused hardship for the family. Mildred remarried when Gary was three, and Gary's stepfather was very abusive. The investigator's other affidavit describes an attempt to interview Gary's ex-wife, Lori, who, according to the investigator, did not want to answer questions about Gary. The State argues that the affidavits are primarily hearsay, and we agree. In addition some of what is contained in the affidavits was presented at trial.
¶ 19. In conclusion we find that, Simmons has not submitted sufficient evidence of a breach of the duty of counsel to investigate and present mitigation evidence as described by the United States Supreme Court in Wiggins v. Smith.
¶ 20. Simmons also argues that trial counsel was ineffective for failure to interview the State's witnesses, particularly Charlene Brooke Leaser, before trial, and for failure to cross-examine Leaser on her previous guilty pleas in Texas state court to DUI and credit card abuse, and revocation of probation on credit card abuse. The State argues that impeachment would have been permissible only on the credit card issue. The State also argues that it could have been trial strategy not to cross-examine this young rape victim any more vigorously considering what she had allegedly suffered.
¶ 21. We find nothing in this record to indicate whether defense counsel interviewed Leaser. As for the impeachment Simmons suggests, we doubt that it would have been significant considering that (1) the State's DNA testimony supported Leaser's testimony and (2) Simmons did not testify, so there was no testimony to contradict Leaser's version of the events surrounding Jeffery Wolfe's death. We hold that this issue is without merit.
B. DNA Evidence.
¶ 22. Simmons next argues that his trial counsel was ineffective for failure to adequately prepare for the examination of Deborah Haller, the State Crime Lab's DNA expert. Simmons states that his counsel should have begun the process of procuring funds and finding a DNA expert "at least three months prior to the production of the State's DNA report that they were doing DNA testing," or at least three months prior to July 23, 1997, because counsel for Simmons allegedly knew at this time that the State was doing DNA testing. This is the argument that the State made at trial and on direct appeal in response to Simmons's request for continuance. See Simmons, 805 So.2d at 484. The State argued at trial and on direct appeal that counsel for Simmons was at fault for not timely finding a DNA expert. Here, Simmons adopts the State's trial and direct appeal argument. The State, faced with its arguments made at trial and on direct appeal concerning defense counsel's lack of competence, now states, "It is unclear what more trial counsel could have done."
¶ 23. Deborah Haller, the State's DNA expert, testified concerning blood found in a bucket near a boat used by Simmons, muscle tissue found in the bathroom in Simmons's home, a bush hook, and a knife collected from the bathroom of Simmons's home. As to these items Haller testified that the probability of the blood belonging to someone besides Jeffery Wolfe was one in 390,000 in the Caucasian population. Haller also testified that the DNA material found on a condom collected from a wastebasket in Simmons's bathroom was consistent *1005 with that of Simmons and Charlene Leaser.
¶ 24. This testimony was critical on the matter of Simmons's participation in the case. It also supported Leaser's testimony that Simmons had raped her. The State argues that this issue is in part a restatement of issues raised on direct appeal concerning whether the trial court erred in admitting Haller's testimony and whether the trial court erred in refusing to grant a continuance to Simmons so that his expert could have more time to review the DNA evidence. The State also argues that defense counsel's conduct was not deficient and that Simmons did not at trial and does not here proffer any evidence which would show that Haller's testimony was incorrect or flawed in any way.
¶ 25. We agree with the State's last argument. Even if one conceded that the first prong of the Strickland v. Washington test, that of deficient conduct by defense counsel, was met here, there is still the matter of prejudice. Simmons has produced nothing, even at this time, from Dr. Ron Acton, Simmons's DNA expert at trial, or anyone else, which calls into question the accuracy of the results testified to by the State's DNA expert. Without such evidence prejudice cannot be shown, and this issue is without merit.
C. Cumulative Effect of Counsel's Failure to Make Contemporaneous Objections.
¶ 26. Simmons next argues that the failure of his trial counsel to make contemporaneous objections on numerous occasions amounted, in a cumulative manner, to ineffective assistance of counsel. The State argues that this Court noted all of these instances in its opinion, including the fact that no contemporaneous objection had been made by the defense, and reached the merits of each argument regardless, finding that none of the claims amounted to error. The State argues that because this Court considered each of these instances on the merits and found that there was no error, then a claim for ineffective assistance of counsel can not be supported because the prejudice prong of the Strickland test cannot be met. We agree and hold that this issue is without merit.
III. EFFECTIVE ASSISTANCE OF CONFLICT FREE COUNSEL.
¶ 27. Simmons next argues that he was denied effective assistance of counsel because his trial counsel, Harvey Barton, had before the trial represented a state witness, Dennis Guess, and represented Guess's father at the time of Simmons's trial. Simmons argues that this amounted to a conflict of interest and the trial judge should have declared a mistrial.
¶ 28. This issue was raised by Simmons on direct appeal. This Court found that there was "no evidence in the record to suggest that defense counsel acted in some manner other than capable." Simmons, 805 So.2d at 480. The issue is barred by res judicata pursuant to Miss.Code Ann. § 99-39-21(3).
IV. MITIGATION TESTIMONY OF LORI SIMMONS.
¶ 29. Simmons next argues that "his ex-wife, Lori Simmons, was not permitted to fully testify as to matters pertaining to mitigation factors offered by him at the sentencing phase of the proceeding. Numerous times the State objected to responses to defense questions during her examination at trial. Simmons alleges that the adverse rulings by the trial court violated his fundamental right to call witnesses on his behalf."
*1006 ¶ 30. This issue was presented to this Court on direct appeal. The Court found that "the trial judge may have initially erred in sustaining the State's objections to several questions posed to Lori, in fact, subsequently, she was allowed to respond and fully explore the issues posed by the previous denied questions," and any error was harmless. Simmons, 805 So.2d at 498.
¶ 31. The State argues that Simmons is barred by res judicata from raising this issue now, as it was decided on direct appeal. Simmons provides no exception to this rule. Simmons does attach an affidavit from an employee of the Office of Capital Post-Conviction Counsel, which states that the employee attempted to contact Lori Simmons, who declined to answer any questions about the case. That Lori Simmons refuses to answer questions now about the case is not relevant on the question of whether Gary Simmons received a fair trial. We hold that this issue is without merit.
V. AGGRAVATING CIRCUMSTANCE THAT SIMMONS KNOWINGLY CREATED A GREAT RISK TO MANY PERSONS.
¶ 32. At trial the jury found two aggravating circumstances: one was that the capital offense was committed for pecuniary gain, and the second was that "the defendant knowingly created a great risk of death to many people." On direct appeal Simmons argued that the second aggravator was supported by insufficient evidence. This Court found "that the evidence regarding Simmons' disposal of Wolfe's remains into the bayou constituted knowingly creating a great risk to many people. There is no reversible error here." Simmons, 805 So.2d at 497.
¶ 33. Simmons now makes the same argument on post-conviction, that "the prosecution failed to introduce adequate and sufficient evidence to convince a jury beyond a reasonable doubt that petitioner had knowingly created a great risk to many persons as a matter of law." We hold that this issue is barred by res judicata.
¶ 34. Simmons also argues that "[i]t should not matter either, if a defendant fails to object to any such charge or erroneous instruction as under the recent case of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), the Sixth Amendment requires that any finding of fact that makes a defendant eligible for the death penalty must be unanimously made by the jury beyond a reasonable doubt." Though the record is not clear whether defense counsel objected or not, this is irrelevant, as this Court considered the merits of the argument and found there was no error. Even if Ring did apply, the jury did find the aggravating circumstance in question beyond a reasonable doubt.
¶ 35. Simmons argues that this Court's finding on direct appeal that one scenario, the repeated firing of a rifle in a residential neighborhood, did not sufficiently support the aggravator in question, but that placing Jeffery Wolfe's remains in community waters did support the aggravator, amounts to appellate fact-finding or reweighing. We disagree. This Court reviewed the entire record on direct appeal and found that the aggravating circumstance in question was supported by certain evidence. We hold that this issue is without merit.
VI. MOTIONS FOR A CONTINUANCE.
¶ 36. Simmons next argues that the trial court erred in failing to grant a continuance due to the State's intention to *1007 offer DNA evidence in support of its case and Simmons's resulting attempt to rebut this evidence. This issue was raised on direct appeal. This Court found that Simmons had not shown sufficient evidence, in a timely manner, to support the granting of a continuance. Simmons, 805 So.2d at 484-85. The State answers that as this issue was raised and rejected on direct appeal, it is barred by res judicata here. Simmons provides no reason that an exception to the bar should be considered. We hold that this issue is without merit.
VII. PROPORTIONALITY OF DEATH SENTENCE.
¶ 37. Simmons next argues that his death sentence is disproportionate because Timothy Milano, not Simmons, actually fired the shots that killed Jeffery Wolfe. Milano received a life sentence. Simmons argues that this disparity in sentences is unfair, and also argues that there is no evidence that Simmons was a leader, planner and/or instigator of the killing. This issue was also raised on direct appeal. This Court rejected this issue, noting that the jury had found that Simmons intended Wolfe's death and contemplated that lethal force would be used, that the death penalty had been affirmed for others who had not done the actual killing and that ample evidence showed that Simmons actively planned and participated in the robbery and murder. Simmons, 805 So.2d at 507.
¶ 38. Simmons cites Bishop v. State, 812 So. 2d 934 (Miss.2002), where Bishop was not the primary killer. The State argues that Bishop is more supportive of its argument, as Bishop received the death penalty while Jessie Wayne Johnson, who inflicted the lethal blows in that case, received life without parole. We agree with the State. The Court has also found the death penalty not to be disproportionate for an aider and abetter who is not the actual killer in several other cases. Smith v. State, 729 So. 2d 1191 (Miss.1998); Ballenger v. State, 667 So. 2d 1242 (Miss.1996); Carr v. State, 655 So. 2d 824 (Miss.1995); Abram v. State, 606 So. 2d 1015 (Miss. 1992); Leather-wood v. State, 435 So. 2d 645 (Miss.1983).
¶ 39. Simmons also cites Randall v. State, 806 So. 2d 185 (Miss.2001), where this Court found that, where there was no proof as to who actually killed the victim, and the other co-defendants received sentences of less than death, and the jury only found that Randall contemplated that lethal force would be used and nothing else, then the death sentence was disproportionate. While Simmons's case does have similarities to Randall, the case at bar, as this Court noted on direct appeal, the jury found that Simmons intended the killing of Jeffery Wolfe to take place, in addition to finding that Simmons contemplated that lethal force would be employed. This Court specifically found that under these circumstances the death penalty was not disproportionate.
¶ 40. Simmons also cites Bullock v. State, 525 So. 2d 764 (Miss.1987), and Duplantis v. State, 644 So. 2d 1235 (Miss. 1994). In Bullock, this Court rendered a sentence of life imprisonment where Bullock's co-defendant actually killed the victim and received a life sentence. In Duplantis this Court reversed a murder conviction and death sentence on other grounds and intimated that the State's proof might have been insufficient on the issue of proportionality in the first trial. We find neither case to be controlling here.
¶ 41. Simmons also cites as intervening cases Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). The Supreme Court held in Ring that only a *1008 jury may find an aggravating circumstance necessary for the imposition of the death penalty. The Supreme Court held in Apprendi that any fact, other than a previous conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Neither case changes or expands the law on proportionality. The issue was dealt with on direct appeal, and we hold that it is barred by res judicata at the post-conviction level.
VIII. CUMULATIVE ERROR.
¶ 42. Simmons next argues that even if none of the alleged errors, cited individually, may be basis for relief, the cumulative effect of all the errors viewed together mean that Simmons is entitled to relief. Simmons raised the cumulative error issue on direct appeal. The Court found the argument was without merit:
Simmons's final assertion of error is that each of the above enumerated errors, when taken together, warrant reversal as cumulative error. Simmons cites Hickson v. State, as authority for this proposition when this Court held that reversal was warranted by their perception of a combined prejudicial impact of two actions taken by the State that substantially compromised Hickson's right to a fair trial. Hickson v. State, 472 So. 2d 379, 385 (Miss.1985).
The State counters with a quote from Doss v. State, which reads "[w]here there is no reversible error in any part,.... there is no reversible error to the whole." Doss v. State, 709 So. 2d 369, 401 (Miss.1996). Additionally, this Court has held that a murder conviction or a death sentence will not warrant reversal where the cumulative effect of alleged errors, if any, was procedurally barred. Doss, 709 So.2d at 401. Cumulatively, these errors do not warrant reversal.
Simmons, 805 So.2d at 508. Even with the additional arguments made here that were not made on direct appeal, we hold that this issue is without merit.
IX. OMISSION OF THE AGGRAVATING FACTORS ELEVATING THE CHARGE TO A CAPITAL OFFENSE FROM INDICTMENT.
A. Ring v. Arizona.
¶ 43. Simmons argues that his indictment is unconstitutional for failure to include and specify the aggravating factors used to sentence him to death. This issue was not raised at trial or on direct appeal and normally would be procedurally barred. However, Simmons primarily relies on Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002), as intervening decisions which would nullify the procedural bar.
¶ 44. In Jones v. United States the United States Supreme Court considered a federal carjacking statute. The Supreme Court found in Jones that the carjacking statute, which allowed three different punishments increasing in severity depending on the degree of violence used or physical harm accomplished by the carjacker, could result in three distinct offenses, all of which had to be charged in the carjacker's indictment:
[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in *1009 an indictment, submitted to a jury, and proven beyond a reasonable doubt.
Jones, 526 U.S. at 243 n. 6, 119 S. Ct. 1215 (emphasis added).
¶ 45. Jones was followed by Apprendi. Apprendi fired several shots into the home of an African-American family in Vineland, New Jersey. Apprendi was indicted on numerous state charges of shooting and possession of firearms. He eventually pled guilty to two counts of possession of a firearm for unlawful purpose and one count of possession of an explosive. After the judge accepted the guilty pleas, the prosecutor moved for an enhanced sentence on one of the counts on the basis that it was a hate crime. The judge concurred and rendered an enhanced sentence on twelve years on that particular count, with shorter concurrent sentences on the other two counts.
¶ 46. Relying in part on Jones, Apprendi argued that he was entitled to have the finding on enhancement decided by a jury. The Supreme Court agreed, stating: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490, 120 S. Ct. 2348. However, the Court specifically stated that "Apprendi has not here asserted a constitutional claim based on the omission of any reference to sentence enhancement or racial bias in the indictment.... We thus do not address the indictment question separately today." Apprendi, 530 U.S. at 477 n. 3, 120 S. Ct. 2348.
¶ 47. The Court found in Apprendi that New Jersey's statutory scheme would allow a jury to convict a defendant of a second degree offense of possession of a prohibited weapon, and then, in a separate subsequent proceeding, allow a judge to impose a punishment usually reserved for first degree crimes made on the judge's finding based on a preponderance of the evidence. The Apprendi Court finally stated that its decision did not apply to capital sentencing cases, even those cases where the judge was the one deciding whether to sentence the defendant to death or some lesser sentence, citing Walton v. Arizona, 497 U.S. 639, 110 S. Ct. 3047, 111 L.Ed.2d 511(1990), where the Arizona capital sentencing process had been upheld.
¶ 48. In 2002, the U.S. Supreme Court decided Ring v. Arizona. Ring addressed the issue of whether the Arizona capital sentencing process as upheld in 1990 in Walton v. Arizona, that of a jury deciding guilt and a judge making findings on aggravating factors, could survive the Apprendi decision. The Supreme Court decided it could not. Despite the efforts in Apprendi to distinguish non-capital enhancement cases from aggravating circumstances in capital cases in this context, the Supreme Court in Ring found that there was no difference.
[W]e overrule Walton to the extent that it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary for imposition of the death penalty. See 497 U.S., at 647-649, 110 S. Ct. 3047. Because Arizona's enumerated aggravating factors operate as "the functional equivalent of an element of a greater offense," Apprendi, 530 U.S., at 494, n. 19, 120 S. Ct. 2348, the Sixth Amendment requires that they be found by a jury.
* * *
"The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.... If the defendant preferred the common-sense judgment of a jury to the more *1010 tutored but perhaps less sympathetic reaction of the single judge, he was to have it." Duncan v. Louisiana, 391 U.S. 145, 155-156, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968).
The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death. We hold that the Sixth Amendment applies to both.
Ring, 536 U.S. at 609,122 S. Ct. 2428.
¶ 49. Simmons's argument is that because Ring found the Apprendi decision persuasive on the issue of Arizona's enumerated aggravating factors operating as "the functional equivalent of an element of a greater offense," the Supreme Court necessarily adopted every other rule stated in Apprendi for state capital sentencing proceedings, specifically the rule first cited in Jones v. United States, that the Constitution requires that aggravating factors be listed in indictments. We find this argument is incorrect. Ring only found juries must find aggravating factors: "Ring's claim is tightly delineated: He contends only that the Sixth Amendment required jury findings on the aggravating circumstances asserted against him...." Finally, Ring does not contend that his indictment was constitutionally defective. See Apprendi, 530 U.S. at 477 n. 3, 120 S. Ct. 2348 (Fourteenth Amendment "has not ... been construed to include the Fifth Amendment right to `presentment or indictment of a Grand Jury'"). Ring, 536 U.S. at 597 n. 4,122 S. Ct. 2428.
B. Mississippi's capital sentencing scheme.
¶ 50. Simmons's argues: "Although Mississippi's capital sentencing scheme is not identical in all respects to the Arizona scheme rejected by the United States Supreme Court in Ring, the two schemes are identical in the respects relevant to this case." This is incorrect. The two sentencing schemes are different in the only respect relevant to Ring, that of who finds aggravating circumstances that lead to the death sentence. Under Arizona's scheme, the judge did this, and for this reason Arizona's scheme was found to be unconstitutional. Under this state's statutory scheme, and in Simmons's case the jury found the aggravating circumstances. We hold that there is no infirmity under Ring.
C. Indictment alleging all of the elements of the crime to be proved.
¶ 51. Simmons sums up his argument concerning the alleged problems with his indictment by repeating it here. Simmons cites United States v. Fell, 217 F. Supp. 2d 469 (D.Vt.2002), and United States v. Lentz, 225 F. Supp. 2d 672 (E.D.Va.2002). In Fell, 217 F.Supp.2d at 483, the court found the following: "Although the Ring decision explicitly did not discuss whether a defendant was entitled to grand jury indictment on the facts that, if proven, would justify a sentence of death, see Ring, 536 U.S. at 597 n. 4, 122 S.Ct. at 2437 n. 4, the clear implication of the decision, resting as squarely as it does on Jones, is that in a federal capital case the Fifth Amendment right to a grand jury indictment will apply." This is not a federal capital case, and there is nothing to show that this Fifth Amendment right is applicable to a state capital case. Lentz makes the same finding, but once again deals with the Federal Death Penalty Act, or FDPA.
¶ 52. Simmons also relies on the United States Supreme Court decision of Allen v. United States, 536 U.S. 953, 122 S. Ct. 2653, 153 L. Ed. 2d 830 (2002). In a memorandum decision, the Supreme Court stated the following: "The judgment [in Allen] *1011 is vacated and the case is remanded to the United States Court of Appeals for the Eighth Circuit for further consideration in light of Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)."
¶ 53. One issue raised in Allen was the issue Simmons raises here, that of his indictment being defective because it did not contain the aggravating factors. The Eighth Circuit in Allen found that Allen's indictment was not defective even though it did not contain the aggravating factors. If this is the basis on which Allen is being reversed, it seems odd to cite Ring v. Arizona to do it. The question of what an indictment must contain in a state capital case was not before the Ring court. In Apprendi v. New Jersey, the Supreme Court stated that the Fifth Amendment right to indictment had never been applied to the states through the Fourteenth Amendment. Absent more explicit direction, we find that the Supreme Court has not ruled that state capital defendants have a constitutional right to have all aggravating circumstances listed in their indictments. We find that this issue is without merit.
X. INSTRUCTION S-11.
¶ 54. On direct appeal Simmons raised as error the giving of Instruction S-11, which states:
The Court instructs the jury that one who willfully, unlawfully, and feloniously aids, abets, assists, or otherwise encourages the commission of a crime is just as guilty under the law as if he or she had committed the whole crime with his or her hand.
¶ 55. This Court found the issue to be without merit as follows:
Simmons alleges that the trial court erred in granting State's S-11 which he believes is an incorrect statement of the law. The State urges that this argument should be procedurally barred because defense counsel's objection to S-11 is different on appeal than the one offered at trial. At trial, it appears that defense counsel objected to S-11 on the grounds that it was an "aiding and abetting" instruction, rather than an incorrect statement of the law. The State cites Doss v. State, 709 So. 2d 369, 378 (Miss.1996) for the proposition that an objection at trial on one specific ground constitutes a waiver on all other grounds.
Simmons believes that this instruction relieved the prosecution of its burden to prove all of the elements of capital murder, robbery, kidnaping and rape. Simmons cites generally Hornburger v. State, 650 So. 2d 510, 514 (Miss.1995) and Berry v. State, 728 So. 2d 568 (Miss. 1999).
Both Hornburger and Berry are distinguishable because they involved instructions that told the jury that each person who commits any act that is an element of the crime is guilty as a principle. S-11 simply does not contain the operative language that could be construed as reading that a defendant found guilty of aiding and abetting with respect to one element of the crime is guilty as a principle. When determining whether error lies in the granting or refusal of various instructions, we must consider all the instructions given as a whole. Coleman v. State, 697 So. 2d 777, 782 (Miss.1997). "When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Coleman, 697 So.2d at 782. The jury instructions listing the elements of capital murder (S-4a), robbery (S-3), kidnapping (S-7), and rape (S-8) all carefully lay out the elements of each crime. Additionally, Simmons is guilty *1012 as a principal under Miss.Code Ann. §§ 97-1-3 (2000). Thus, we find no error in the giving of this instruction.
Simmons, 805 So.2d at 475-76.
¶ 56. Simmons acknowledges this Court's consideration of S-11 on direct appeal, but states here at the post-conviction level that S-11 "causes a more serious, obscure and sinister problem, different and apart from the issue addressed on appealit allows the jury an option in regard to the capital murder charge of finding Simmons guilty through a minimal act not rising to the level of the actual commission of the crime." Simmons further states that "[t]he syntactical and semantic differences in the given aiding and abetting and accessory instructions which may allow for an experienced jurist to differentiate are simply confusing and prone to error when read by a lay juror." Simmons later adds that S-11, "when viewed within the evidence adduced in trial, unfairly lessened the prosecutor's burden." The State argues that Simmons is raising the same issue here that he raised on direct appeal, and as such this issue is barred from consideration by res judicata. We agree with the State's argument and hold that the issue is barred due to res judicata.
¶ 57. If Simmons is attempting to raise a new issue here, we hold that the attempt is further barred under Miss.Code Ann. § 99-39-21(1), as this issue could have been raised on direct appeal but was not, and § 99-39-21(3), which states that "the litigation of a factual issue at trial and on direct appeal of a specific state or federal legal theory or theories shall constitute a waiver of all other state or federal legal theories which could have been raised under said factual issue; and any relief sought under this article upon said facts but upon different state or federal legal theories shall be procedurally barred absent a showing of cause and prejudice."
¶ 58. Simmons finally argues that in the direct appeal of his co-defendant, Timothy Milano, this Court was compelled to announce that the jury instruction at issue in Berry and Lester v. State, 744 So. 2d 757 (Miss.1999), and in this case should no longer be given, and the Court prospectively adopted a Pattern Jury Instruction from the Fifth Circuit. As stated in this Court's opinion in Simmons's direct appeal, S-11 is distinguishable from the instructions found in the other cases cited here. This Court in Milano did not reverse based on the instruction in question, but found that any error was harmless as other instructions provided that all elements of the offenses had to be proved before Milano could be found guilty. Milano v. State, 790 So. 2d 179, 185 (Miss.2001). We find that this issue is without merit.
CONCLUSION
¶ 59. After thorough consideration we deny Simmons's Motion for Leave to Proceed in the Trial Court on a Petition for Post-Conviction Relief, as amended and supplemented.
¶ 60. MOTION FOR LEAVE TO SEEK POST-CONVICTION RELIEF, DENIED.
PITTMAN, C.J., WALLER, P.J., COBB, EASLEY, CARLSON, GRAVES AND DICKINSON, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922331/ | 756 A.2d 5 (2000)
Marjorie WOLLOCH, Appellant,
v.
Robert AIKEN, M.D., Michelle Meltzer, M.D., Richard Keohane, M.D., Pennsylvania Hospital, Thomas Jefferson Hospital, Appellees. (Five cases).
Superior Court of Pennsylvania.
Argued January 12, 1999.
Filed March 10, 2000.
Reargument denied May 8, 2000.
*7 Benedict A. Casey, Philadelphia, for appellant.
Allan H. Starr, Philadelphia, for Robert Aiken, M.D., appellee.
Roseann L. Brenner, Philadelphia, for Michelle Meltzer, M.D., appellee.
James P. Kilcoyne, Jr., Plymouth Meeting, for Richard Keohane, M.D., appellee.
Leah B. Perry, Philadelphia, for Pennsylvania Hospital, appellee.
Michael D. Brophy, Philadelphia, for Thomas Jefferson Hospital, appellee.
Before KELLY, MONTEMURO[*], JJ., and CIRILLO, President Judge Emeritus.
*6 KELLY, J.:
¶ 1 Appellant, Marjorie Wolloch, has appealed from each of the five orders entering summary judgment in favor of Appellees, Robert Aiken, M.D., Michelle Meltzer, M.D., Richard Keohane, M.D., Pennsylvania Hospital, and Thomas Jefferson Hospital, in Appellant's medical malpractice case. Specifically, Appellant asks us to determine whether the trial court abused its discretion in granting Appellees' motions for summary judgment. Following our review of the record in light of applicable law, we affirm summary judgment in favor of Appellees Keohane, Pennsylvania Hospital and Thomas Jefferson Hospital; we reverse the judgments in favor of Appellees Aiken and Meltzer, and remand for further proceedings.
¶ 2 The relevant facts and procedural history of this case as gleaned from the certified record on appeal are as follows. On or about June 4, 1992, Appellant came under the medical care of Appellee Meltzer, complaining of intermittent throbbing pain in her left lower back with intermittent radiation of the pain down her left leg and ankle. Appellee Meltzer ordered a *8 cervical spine film, due to Appellant's complaints of arm numbness, and a spine series. The films were taken at Pennsylvania Hospital and read by Appellee Keohane. The films were read as normal. Appellant was prescribed pain medications. Appellant continued under Appellee Meltzer's care for only three weeks.
¶ 3 On or about June 24, 1992, Appellant consulted Appellee Aiken at Thomas Jefferson Hospital for complaints of intense discomfort relating to her left leg and ankle. Appellee Aiken diagnosed Appellant's condition as lumbar radiculopathy and recommended pain medication, Naprosyn, heat, massage, and ultrasound. By September 1992, Appellant's condition appeared to be improving on the Naprosyn and physical therapy regimen. On October 21, 1992, Appellee Aiken ordered a MRI of Appellant's left spinal canal. The MRI indicated a minimal bulging at L4-5. Appellee Aiken referred Appellant to the Jefferson Pain Clinic for nerve block injections. Soon thereafter, Appellant began to experience radicular pain of increased and constant intensity. Appellant was treated with epidural steroids through December 1992. Appellant continued under Appellee Aiken's care until January 1993.
¶ 4 On January 26, 1993, Appellant underwent a radiographic film of her left hip. The next day, Appellant was admitted to the hospital with severe back and left leg pain and a fever of 102 degrees. X-rays showed a probable lesion. Appellant's CT scan indicated a large mass, which arose in the left ilium and extended from the iliac joint to invade the sacrum. There was also some indication of pulmonary metastases. A bone scan indicated destruction of the left sacrum, left sacroiliac joint and medial portion of the ilium. A biopsy showed osteosarcoma. Her pelvic MRI showed a large mass arising in the left iliac bone, displacing local muscles, and extending into the abdominal cavity.
¶ 5 Appellant underwent a program of aggressive chemotherapy and related treatment until July 1993. She was referred to UCLA Medical Center for a left hemipelvectomy and extensive related surgery, with post-operative chemotherapy recommended. Following her August 1993 stay at UCLA Medical Center, Appellant was admitted to Magee Rehabilitation Hospital in Philadelphia on September 3, 1993. Appellant continued a rigorous course of post-operative and rehabilitative treatment throughout 1994. By December 1994, Appellant's test results indicated no evidence of recurrence, and her March 1995 films showed no metastases as of that date.
¶ 6 Appellant commenced this action by Writ of Summons on May 31, 1994. She filed her Complaint on June 25, 1994. In her Complaint, Appellant claimed that her treatment by all Appellees fell below the proper standard of medical care. As a result of Appellees' failure to recognize Appellant's symptoms and to diagnosis her condition, Appellant alleged, her diagnosis and treatment for cancer were inappropriately delayed, allowing her tumor to grow and causing Appellant increased pain and suffering, permanent disability, and other losses.
¶ 7 Appellees promptly filed preliminary objections to Appellant's Complaint. The court overruled Appellees' respective preliminary objections. Appellees' Answers to Appellant's Complaint were duly filed by January 1995. Discovery proceeded without incident by the parties' voluntary and cooperative exchange of information through interrogatories, requests for production of documents, and depositions. Appellee Meltzer's deposition was the last, taken in November 1997.
¶ 8 Appellant's case came under the purview of the Philadelphia County Court of Common Pleas' Day Backward Program,[2]*9 as determined by the court term during which the Complaint had been filed. The case was listed for a case management conference, which was held on April 10, 1997. The case management order listed the case on the complex track, adopting the complex track time standards for discovery and other pretrial deadlines. According to that order, Appellant was required to identify her medical expert and to provide an expert report and curriculum vitae no later than February 2, 1998. Appellees were to provide their expert information no later than April 6, 1998. As well, the case management order required all pretrial motions to be filed by April 6, 1998. Settlement memos were due by May 4, 1998; pretrial memos were due by May 18, 1998. The parties were directed to be ready for trial by August 3, 1998.
¶ 9 Shortly before Appellant's expert witness deadline of February 2, 1998, Appellant's counsel filed an unopposed Petition for Extraordinary Relief to extend the case management deadlines for thirty days.[3] By order of the case management judge, Appellant's Petition was granted and her expert witness deadline was extended to March 2, 1998. Appellees' expert deadline was also extended thirty days, to May 6, 1998.
¶ 10 March 2, 1998 came and went without submission of Appellant's expert report(s) and/or curriculum vitae. Further, Appellant did not file a timely second Petition for Extraordinary Relief before March 2, 1998, by which she might have obtained another extension of the expert witness deadline. Accordingly, Appellee Aiken filed a motion for summary judgment on March 10, 1998, followed by motions for summary judgment on behalf of Appellee Pennsylvania Hospital, filed on March 17, 1998; Appellee Thomas Jefferson Hospital, filed on March 18, 1998; Appellee Keohane, filed on March 19, 1998; and, Appellee Meltzer, filed on March 20, 1998. The thrust of Appellees' motions was that Appellant had failed to submit timely expert report(s) delineating the applicable standard of care; stating how Appellees had deviated from the acceptable standard of care; and, with the proper degree of medical certainty, that their deviation caused or contributed to Appellant's alleged harm. Without an expert report, Appellees contended, Appellant could not make out a prima facie case of medical malpractice.
¶ 11 In response, Appellant challenged only the motions for summary judgment of Appellees Aiken and Meltzer on April 13 and April 15, 1998, respectively. The gist of Appellant's opposition was the alleged difficulty in obtaining an appropriate expert to review Appellant's extensive treatment records. Appellant again requested an additional thirty days to supply the expert reports, admitting that counsel had seriously underestimated the time required to obtain the reports.
¶ 12 Importantly, in her answers in opposition to the motions for summary judgment filed by Appellees' Aiken and Meltzer, *10 Appellant explicitly stated that she did not intend to respond to the motions for summary judgment filed by Appellees Keohane, Pennsylvania Hospital and Thomas Jefferson Hospital. On April 14, 1998, Appellant also filed copies of her letters to counsel for these Appellees, advising the court that Appellant was not opposing the summary judgment motions of Appellee Keohane and the two hospitals. At no time in this flurry of dispositive motions did any party question the fundamental necessity of an expert opinion to support Appellant's case.
¶ 13 On April 29, 1998, the trial court entered five orders granting summary judgment in favor of each Appellee, thereby disposing of Appellant's case. On May 4 and May 14, 1998, however, counsel for Appellant forwarded to Appellees' counsel copies of two reports by Appellant's expert, Richard S. Goodman, M.D. and a copy of his curriculum vitae. On May 20, 1998, Appellant's counsel also forwarded to Appellees' counsel a copy of the report of another expert, Donna Glover, M.D., along with a copy of her curriculum vitae.
¶ 14 On May 21, 1998, Appellant filed a motion with the trial court to vacate all five summary judgment orders. Attached to her motion to vacate were copies of the expert reports and curriculum vitae previously forwarded to Appellees. In the motion to vacate, counsel for Appellant admitted that efforts to secure appropriate experts were first made in September 1997. Counsel claimed that the "enormous quantity of records requiring review" as well as the difficulty in obtaining experts who could review Appellant's clinical records and render an informed opinion, had seriously hampered their efforts. Counsel also complained that, on March 24, 1995, the original x-ray films from June 5, 1992 had to be returned to Pennsylvania Hospital and that Appellant had only copies of the films to submit to the expert for review. Counsel asserted that there had been no willful disregard of the discovery deadlines or prejudice to Appellees caused by the delay in providing Appellant's experts' reports. Counsel further stated that he had not received the court's order granting his initial request for Extraordinary Relief until March 10, 1998, which was too late to file a timely second request for Extraordinary Relief from the March 2, 1998 deadline. Accordingly, Appellant asked the trial court to reconsider/vacate its summary judgment orders and to issue a new case management order. Realizing that the trial court would not address the motion for reconsideration until after Appellees had thirty days to respond, on May 22, 1998, Appellant filed appeals from the five orders granting summary judgment in favor of all Appellees.
¶ 15 In their answers in opposition to Appellant's motions to vacate, Appellees principally argued that the trial court no longer had jurisdiction to grant Appellant's motion to vacate, because the court had not expressly granted reconsideration of its April 29, 1998 orders within thirty days of the date of the orders.[4] They also contended that Appellant had misrepresented the nature of her discovery violations, in that she had violated not one but two orders of the court, and had missed not one but two deadlines. Appellees stated that they had complied with Appellant's discovery requests and/or submitted to depositions. Appellees maintained that Appellant had been given ample time and *11 information to secure a proper expert and to submit a timely report, at least by the extended deadline of March 2, 1998. Appellees concluded that Appellant's failure to proceed with due diligence in the face of the court's deadlines, and despite extended opportunity, was inexcusable, willful, prejudicial, and warranted dismissal of her case.
¶ 16 Appellees Keohane, Pennsylvania Hospital and Thomas Jefferson Hospital also took the position that Appellant had expressly acquiesced to summary judgment in their favor by stating on the record that she did not intend to oppose their motions. These Appellees concluded, therefore, that Appellant was bound by her prior position and was now estopped from challenging the orders entering summary judgment in their favor.
¶ 17 By order dated July 2, 1998, the court declared that it no longer had jurisdiction to entertain Appellant's motions to vacate and denied Appellant's motion. An appeal from the trial court's denial of the motion to vacate was subsequently filed but later quashed, sua sponte, by this Court. The present appeals, however, are properly before this Court.
¶ 18 On appeal, Appellant raises the following issue for our review:
WAS THE GRANT OF SUMMARY JUDGMENT FOR ALL [APPELLEES] AND REFUSAL OF [APPELLANT]'S REQUEST FOR THIRTY (30) ADDITIONAL DAYS WITHIN WHICH TO SUPPLY EXPERT REPORTS AN ABUSE OF DISCRETION WHERE THERE WAS NO EVIDENCE AND NO FINDING BY THE TRIAL COURT OF WILLFULNESS BY [APPELLANT] OR PREJUDICE TO [APPELLEES]?
(Appellant's Brief at 2).
¶ 19 Summary judgment is governed by the Pennsylvania Rules of Civil Procedure as follows:
RULE 1035.2 MOTION
After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.
Pa.R.C.P. 1035.2. A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury. Pa. R.C.P. 1035.2 Note. Where a motion for summary judgment is based upon insufficient evidence of facts, the adverse party must come forward with evidence essential to preserve the cause of action. If the non-moving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law. The non-moving party must adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof such that a jury could return a verdict favorable to the non-moving party. As with all summary judgment cases, the court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party as to the existence of a triable issue.
*12 Upon appellate review, we are not bound by the trial court's conclusions of law, but may reach our own conclusions. In reviewing a grant of summary judgment, the appellate Court may disturb the trial court's order only upon an error of law or an abuse of discretion. The scope of review is plenary and the appellate Court applies the same standard for summary judgment as the trial court.
McCarthy v. Dan Lepore & Sons Co., Inc. et al., 724 A.2d 938, 940-41 (Pa.Super.1998), appeal denied, 559 Pa. 692, 743 A.2d 921 (1999) (internal citations omitted). See also Moses v. T.N.T. Red Star, 725 A.2d 792 (Pa.Super.1999), appeal denied, 559 Pa. 692, 739 A.2d 1058 (1999). Further, Rule 1035.3 provides in pertinent part:
RULE 1035.3 RESPONSE. JUDGMENT FOR FAILURE TO RESPOND
(a) The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying
(1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion..., or
* * *
(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.
(b) An adverse party may supplement the record or set forth the reasons why the party cannot present evidence to justify opposition to the motion and any action proposed to be taken by the party to present such evidence.
(c) The court may rule upon the motion for judgment or permit affidavits to be obtained, depositions to be taken or other discovery to be had or make such order as is just.
(d) Summary judgment may be entered against a party who does not respond.
Pa.R.C.P. 1035.3 (emphasis added). The rule allows the non-moving party to supplement the record or set forth reasons why that party cannot present the evidence essential to justify opposition to the motion as well as any action intended to be taken by the party to present the evidence. Pa.R.C.P. 1035.3(b). Thereafter, the court may rule on the motion or allow more discovery or make such order as is just. Pa.R.C.P. 1035.3(c). The rule also permits entry of judgment for failure to respond to the motion, but does not require it. Pa. R.C.P. 1035.3(d); Pa.R.C.P. 1035.1 Explanatory Comment-1996.
¶ 20 The rules on summary judgment are replete with discretionary power. Nevertheless, the exercise of judicial discretion requires:
action in conformity with the law on facts and circumstances before the trial court after hearing and consideration. An abuse of discretion is not merely an error of judgment. Rather, the trial court abuses its discretion if, in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or lacking in reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure.
Eaddy v. Hamaty, 694 A.2d 639, 643 (Pa.Super.1997) (internal citations omitted).
¶ 21 Appellant argues that the orders granting summary judgment in favor of Appellees were based solely on Appellant's failure to meet the Day Backward discovery deadline for expert reports. Appellant characterizes the court's orders as discovery sanctions. Appellant further contends that the entry of summary judgment constituted the severest of sanctions, because her case was dismissed. Appellant maintains that the sanctions were imposed without any evidence or findings of willfulness *13 on Appellant's part or prejudice to Appellees. Appellant also claims that the trial court abused its discretion by simply ruling on the motions, despite the assertions in her answers of extenuating circumstances and her request for additional time to supplement the record and provide the reports. Appellant concludes that the court's action constitutes essentially a failure to follow legal procedure. With respect to Appellees Aiken and Meltzer, we agree. Therefore, we cannot affirm the two orders granting summary judgment in their favor.
¶ 22 To review the propriety of the court's decision, we first consult the general rules regarding discovery sanctions, particularly where the discovery violation is a failure to identify an expert witness and the effect of the sanction is dismissal of the action through summary judgment. Pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, a trial court may "make an appropriate order" if a party "fails to make discovery or to obey an order of the court respecting discovery." Pa.R.C.P. 4019(a)(1)(viii). The decision to sanction a party and the severity of the sanction is a matter vested in the discretion of the trial court. Croydon Plastics v. Lower Bucks Cooling & Heating, 698 A.2d 625 (Pa.Super.1997), appeal denied, 553 Pa. 689, 717 A.2d 1028 (1998).
¶ 23 Dismissal of an action as a discovery sanction is permissible under Rule 4019. Stewart v. Rossi, 452 Pa.Super. 120, 681 A.2d 214 (1996), appeal denied, 547 Pa. 731, 689 A.2d 235 (1997). Because dismissal is the most severe sanction, however, "it should be imposed only in extreme circumstances, and a trial court is required to balance the equities carefully and dismiss only where the violation of the discovery rules is willful and the opposing party has been prejudiced." Id. at 217. Therefore, heightened review of a sanctions order is appropriate when the practical effect of the order is dismissal of the sanctioned party's case [or defense]. Croydon, supra; Steinfurth v. LaManna, 404 Pa.Super. 384, 590 A.2d 1286 (1991) (observing that dismissal of malpractice action as result of grant of summary judgment based on appellant's failure to present expert testimony to establish doctor's care fell below applicable standard of care is subject to strict scrutiny and should be imposed only in extreme circumstances).
¶ 24 Rule 4003.5 governs the disclosure of an expert's facts and opinions otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial. Miller v. Brass Rail Tavern, Inc., 541 Pa. 474, 664 A.2d 525 (1995). If the identity of an expert witness is not disclosed, Rule 4003.5 also authorizes sanctions, such as preclusion of the proposed expert's testimony. Pa.R.C.P. 4003.5(b). We note, however, that in Feingold v. Southeastern Pennsylvania Transp. Authority, 512 Pa. 567, 517 A.2d 1270 (1986), our Supreme Court specifically abandoned the concept of mandatory preclusion in this context, holding that Rule 4003.5 requires the trial court to balance carefully the facts and circumstances of the case to determine the prejudice to each party caused by the discovery violation. Id. at 573, 517 A.2d at 1273. The multi-factor approach espoused in Feingold involves several basic considerations:
(1) the prejudice or surprise in fact of the party against whom the excluded witnesses would have testified; (2) the ability of that party to cure the prejudice; (3) the extent to which waiver of the rule against calling [undisclosed] witnesses would disrupt the orderly and efficient trial of the case or of other cases in the court; and, (4) bad faith [or] willfulness in failing to comply with the court's order.
Id. at 574, 517 A.2d at 1273. See also Luszczynski v. Bradley, 729 A.2d 83 (Pa.Super.1999), appeal withdrawn, 559 Pa. 692, 739 A.2d 1058 (1999) (adding consideration of importance of precluded evidence in light of failure to comply); Steinfurth, supra (applying Feingold analysis to *14 discovery sanction imposed under Rule 4019). In balancing these factors as they relate to each party, the court must examine the relative prejudice, which cannot be presumed. See Kearns by Kearns v. DeHaas, 377 Pa.Super. 200, 546 A.2d 1226 (1988), appeal denied, 522 Pa. 584, 559 A.2d 527 (1989) (stating that complaining party must demonstrate prejudice to proper preparation of case for trial as result of dilatory disclosure). See also Curran v. Stradley, Ronon, Stevens & Young, 361 Pa.Super. 17, 521 A.2d 451 (1987) and Linker v. Churnetski Transp., Inc., 360 Pa.Super. 366, 520 A.2d 502 (1987), appeal denied, 516 Pa. 641, 533 A.2d 713 (1987) (illustrating requisite proof of prejudice).
¶ 25 Pennsylvania law makes clear that "local rules cannot be construed as to be inconsistent with state rules." Harris v. Hospital of University of Pennsylvania, 744 A.2d 769, 1999 Pa. Super. 340 (en banc) (quoting Feingold, supra at 572, 517 A.2d at 1272). See also Pa.R.C.P. 239(b)(1) (stating that local rules shall not be inconsistent with any general rule of the Supreme Court or Act of Assembly). Our Supreme Court has explained:
The trial of a lawsuit is not a sporting event where the substantive legal issues which precipitated the action are subordinate to the "rules of the game." A lawsuit is a judicial process calculated to resolve legal disputes in an orderly and fair fashion. It is imperative that the fairness of the method by which the resolution is reached not be open to question. A rule which arbitrarily and automatically requires the termination of the action in favor of one party and against the other based upon a procedural misstep, without regard to the substantive merits and without regard to the reason for the slip, is inconsistent with the requirement of fairness demanded by the Pennsylvania Rules of Civil Procedure. Rule 126 is not a judicial recommendation which a court may opt to recognize or ignore. Rather the rule is a statement of the requirement of fairness and established an affirmative duty courts are bound to follow in applying all procedural rules whether they be statewide or local in origin.
Byard F. Brogan v. Holmes Elec. Protective Co. of Philadelphia, 501 Pa. 234, 240, 460 A.2d 1093, 1096 (1983). The Brogan Court recognized that a mandatory, harsh and inflexible application of a rule that requires termination of an action is an abuse of discretion, where the court enforces the rule without determining whether "an obvious injustice was done to the complaining party and if so, was the reason given for the noncompliance more than the mere inadvertence of counsel." Id. at 241, 460 A.2d at 1096-97.
¶ 26 Although courts have the power to formulate local rules of practice and procedure, local rules cannot abridge, enlarge or modify the substantive rights of a litigant. Pennridge Elec., Inc. v. Souderton Area Joint School Authority, 419 Pa.Super. 201, 615 A.2d 95 (1992). See also McGratton v. Burke, 449 Pa.Super. 597, 674 A.2d 1095 (1996), appeal denied, 546 Pa. 667, 685 A.2d 546 (1996) (holding invalid local rule prohibiting all post-arbitration discovery); Everhardt v. Akerley, 445 Pa.Super. 600, 665 A.2d 1283 (1995) (declaring invalid local rule that allowed for dismissal of exceptions to recommended support order for appellant's failure to file a brief at least fifteen days in advance of argument date); Murphy v. Armstrong, 424 Pa.Super. 424, 622 A.2d 992 (1993) (holding that sanction of dismissal for noncompliance of local rule is unauthorized).
¶ 27 We are also mindful that to state a cause of action for medical malpractice, Pennsylvania law requires plaintiff to establish the following:
(1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct *15 result of that harm. Moreover, the patient must offer an expert witness who will testify to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.
Eaddy, supra at 642 (internal citations omitted). See also Gregorio v. Zeluck, 451 Pa.Super. 154, 678 A.2d 810 (1996), appeal denied, 546 Pa. 681, 686 A.2d 1311 (1996).[5] Addressing this standard as it applies to medical malpractice cases involving the failure to diagnose a disease, our Supreme Court has stated:
In many cases, this [standard of proof] is not a problem for a plaintiff. However, certain cases make this an impossible standard. These are cases in which, irrespective of the quality of the medical treatment, a certain percentage of patients will suffer harm.
An example of this type of case is a failure of a physician to [make a timely diagnosis]. Although timely detection of [a disease or medical condition] may well reduce the likelihood that the patient will have a terminal [or adverse] result, even with timely detection and optimal treatment, a certain percentage of patients unfortunately will succumb to the disease. This statistical factor, however, does not preclude a plaintiff from prevailing in a lawsuit. Rather, once there is testimony that there was a failure to detect the cancer in a timely fashion, and such failure increased the risk that the [plaintiff] would have either a shortened life expectancy or suffered harm, then it is a question for the jury whether they believe, by a preponderance of the evidence, that the acts or omissions of the physician were a substantial factor in bringing about the harm.
Mitzelfelt v. Kamrin, 526 Pa. 54, 62-63, 584 A.2d 888, 892 (1990). Moreover, the expert need not testify with absolute certainty or rule out all other possible causes for the harm suffered by the patient. Id. The expert in these cases has been permitted to testify under the relaxed degree of certainty enunciated in Section 323(a) of the Restatement (Second) of Torts,[6] that the defendant's failure to exercise reasonable care in the diagnosis and treatment increased the risk of harm. Id. at 66-67, 584 A.2d at 894. See also Smith v. Grab, 705 A.2d 894 (Pa.Super.1997) (reiterating reduced standard of certainty applicable to cases involving failure to diagnose).
¶ 28 Although preferred, the expert is not necessarily required to use the "magic words" of "increased the risk," so long as the opinion is expressed to the requisite degree of medical certainty. Mitzelfelt, supra. The substance of the expert testimony is viewed in its entirety to determine whether it has expressed the appropriate standard of certainty. Id.
¶ 29 The instant case involves the interplay and balance of all these legal principles. We agree with Appellant that her case against Appellees Aiken and *16 Meltzer was dismissed by virtue of summary judgment without any application of the balancing factors enunciated in Feingold, supra; Brogan, supra; Luszczynski, supra; Kearns, supra.
¶ 30 Here, the parties engaged in discovery over the course of three years without incident. No party needed to request court intervention to compel compliance with discovery requests. This case does not involve ongoing dilatory, obdurate or vexatious discovery practices requiring court intervention, or any deliberate defiance of court orders compelling discovery responses. See, e.g., Croydon, supra; Stewart, supra.
¶ 31 Further, Appellant timely requested an extension of the court's case management deadline once it became apparent that her experts' reports would not be ready by February 2, 1998. Appellant's petition was unopposed. Although Appellant should have requested more time or, in the alternative, filed another petition for relief from the deadline as a precautionary measure, Appellant's answer to the motions for summary judgment of Appellees Aiken and Meltzer provided extenuating circumstances and put the court and counsel on notice that Appellant's expert reports were imminent. The failure to provide the expert reports by the new March 2, 1998 deadline was Appellant's first and only discovery violation.[7] The importance of the experts' reports to Appellant's case was undisputed whereas dismissal was a harsh enforcement of the case management deadline. Thus, we conclude that the court should have looked more carefully at the equities presented, particularly in the absence of any history of willful or bad faith failure to comply with the discovery deadlines. See Feingold, supra; Brogan, supra; Luszczynski, supra.
¶ 32 Additionally, the motions for summary judgment and responses were not filed on the eve of trial. Trial in this matter was still five months away and open to a request for continuance by any party. Further, Appellees had all of Appellant's medical records and plenty of time to prepare a response to Appellant's expert reports. Therefore, we conclude that Appellees' bare allegation of prejudice without a showing of prejudice in fact does not support dismissal of Appellant's case. See Curran, supra; Kearns, supra.
¶ 33 With respect to the remaining orders granting summary judgment in favor of Appellees Keohane, Pennsylvania Hospital and Thomas Jefferson Hospital, Appellant specified her intention not to oppose the motions in her answers in opposition to the motions filed by these Appellees. On April 14, 1998, Appellant also filed with the court copies of the letters to Appellees' counsel, advising the court that she would not oppose summary judgment in favor of Appellee Keohane and the two hospitals. Accordingly, these motions for summary judgment were entered unopposed as a matter of record and cannot now be assailed. See Pa.R.C.P. 1035.3(d).
¶ 34 Based upon the foregoing, we affirm the orders granting summary judgment in favor of Appellees Keohane, Pennsylvania Hospital and Jefferson Hospital. We reverse the orders granting summary judgment in favor of Appellees Aiken and Meltzer. We remand the matter to the trial court for further proceedings consistent with this opinion including, but not necessarily limited to, a consideration of Appellant's expert reports to determine whether they meet the requisite legal standard regarding Appellees Aiken and Meltzer.
¶ 35 Orders granting summary judgment affirmed in part and reversed in part; case remanded to the trial court for further proceedings. Jurisdiction is relinquished.
NOTES
[*] Retired Justice assigned to the Superior Court.
[2] The Philadelphia County Court of Common Pleas Day Backward Programs, and the successor Day Forward Programs, are case management programs designed to reduce the Philadelphia trial court's backlog of untried cases by setting definite pretrial deadlines and trial dates. Prior to the institution of these programs, the First Judicial District had been plagued with poorly defined trial pools and unpredictable trial dates that allowed cases to languish in the court system and defeat closure at the will of either party. The programs helped to create a level playing field for the parties while promoting efficient court proceedings. The discovery cut-off dates are intended to move the cases along and protect against trial by ambush. As a whole, these programs have been viewed as a boon to plaintiffs. The team leader or trial judge retains certain discretion in enforcing these deadlines. See, e.g., Zito v. Merit Outlet Stores, 436 Pa.Super. 213, 647 A.2d 573 (1994) (affirming trial court's imposition of financial sanctions for cost of delay against party requesting one-half day recess of trial to permit taking of expert's video deposition). In other words, the trial court is not obligated to dismiss a case or preclude evidence for failure to adhere to the deadlines prescribed in the case management order.
[3] The Philadelphia County case management program requires the parties to file all Petitions for Extraordinary Relief, requesting extensions of the deadlines prescribed in the case management orders, before the expiration date of the applicable deadline.
[4] See Cheathem v. Temple University Hosp., 743 A.2d 518, 520 (Pa.Super.1999) (reiterating well settled rule that, regarding final orders, thirty-day appeal period is tolled only by order expressly granting reconsideration within thirty days of entry of final order; any other order is inadequate to stay appeal); Mente Chevrolet, Oldsmobile, Inc. v. Swoyer, 710 A.2d 632 (Pa.Super.1998) (stating that in situations involving final orders, best procedure for party seeking reconsideration of final order is to file motion for reconsideration and notice of appeal; if reconsideration is granted within thirty days of final order, appeal becomes inoperative; if reconsideration is denied [expressly or by passage of thirty-day period for appeal], appellate rights have been preserved).
[5] But see Hightower-Warren v. Silk, M.D., 548 Pa. 459, 698 A.2d 52 (1997) (holding that expert medical testimony is not required if matter is so simple or lack of skill or care is so obvious as to be within range of experience and comprehension of even lay persons). See, e.g., Gregorio, supra (presuming physician's failure to remove surgical gauze from patient following delivery and episiotomy is example of deviation from accepted medical standards that can be comprehended by lay person even without expert opinion provided).
[6] Section 323 of the Restatement (Second) of Torts provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of harm, or
(b) the harm is suffered because of the other's reliance upon the undertaking.
Restatement (Second) of Torts Section 323 (emphasis added) (all pronouns intended as gender neutral).
[7] As a practical matter, we recognize that plaintiff and defense counsel alike exercise little control over their experts, whose reports are often tendered at the last minute regardless of the precarious position in which this practice places the parties. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599964/ | 788 F. Supp. 1059 (1991)
Bonnie J. WILLARD, et al., Plaintiffs,
v.
BIC CORPORATION, et al., Defendants.
No. 89-3401-CV-S-4.
United States District Court, W.D. Missouri, S.D.
August 14, 1991.
*1060 *1061 William J. Fleischaker, Roberts, Fleischaker & Williams, Joplin, Mo., for plaintiffs Bonnie and William Willard.
Patrick K. Roberts, Daniel, Clampett, Lilley, Dalton, Powell & Cunningham, Springfield, Mo., for defendant Bic Corp.
Gary C. Lentz, Spencer, Scott & Dwyer, P.C., Joplin, Mo., for defendant Societe Bic, S.A.
ORDER
RUSSELL G. CLARK, Senior District Judge.
Before the Court is defendant Bic Corporation's motion for summary judgment. Plaintiffs Bonnie and William Willard filed suggestions in opposition to defendant's motion for summary judgment and Bic filed reply suggestions in support of its motion. This Court will grant Bic's motion for summary judgment.
This is a products liability action in which plaintiffs Bonnie and William Willard claim damages from a boat fire which ignited when Mrs. Willard attempted to light a cigarette with a Bic lighter within seconds after fueling a boat from a dockside pump. Plaintiffs claim that the lighter malfunctioned causing the fire. Defendant Bic claims that the boat fire was the result of an accumulation of gas fumes in the boat. Lay and expert witness depositions have been completed and discovery is closed.
FACTS
In February 1987, plaintiffs bought a 1979 Newman runabout boat. The boat was a sixteen foot, open bow, outboard. The motor was a 90 horsepower Mercury fueled by a permanent gas tank of unknown capacity. The fuel tank was filled through a hole in a horizontal gunwale. Mr. Willard did not believe the boat had a blower to evacuate gas fumes. (Willard depo. at 60-61).
At the end of the 1988 boating season, Mr. Willard discovered that the bilge pump was not working. Mr. Willard had the pump fixed and the motor tuned in March of 1989 at Star Marine in Cassville, Missouri. Star Marine did not work on the fuel lines or gas tank. Mechanic Bill Berg testified that he inspected the fuel line and noted that it had no leaks, damage or cracks. (Berg depo. at 14-17).
On April 17, 1989 Mrs. Willard purchased a Bic lighter from a Venture store in Joplin, Missouri. Mrs. Willard stated that she had read the warnings and instructions on the cellophane package, as well as the warnings on the body of the lighter itself. (Willard depo. at 9-10). Mrs. Willard estimated that she used the lighter approximately 210 times after she purchased it. (Willard depo. at 15).
On the morning of April 25, 1989 Mrs. Willard used her lighter twice before the accident. At approximately 8:00 a.m., the Willards arrived at the marina to put gas in their boat. Mr. Willard stated that the temperature was about sixty degrees and the weather conditions were windy and hazy. Chuck Edwards came out to the Willard's boat and handed Mr. Willard the gas pump. Mr. Willard added oil and filled the tank with six gallons of gas. Mr. Willard started the motor and idled away from the dock.
Mr. Willard estimated that he and his wife were approximately fifty to sixty yards from the dock when the incident occurred. Mrs. Willard stated that she placed a cigarette in her mouth, covered the cigarette with her left hand in order to shield the cigarette from the wind and lit the lighter with her right hand. Mrs. Willard *1062 testified that the accident occurred as follows:
Q: And did you light the cigarette while you were seated in the passenger seat?
A: Yes.
* * * * * *
Q: [L]et me have you tell me what happened when you went to light the lighter.
A: When I went when I struck it, the next first thing I knew I was just on fire from my waist up, and I was looking through flames, and so I jumped up. My first thought was drop and roll like they tell you, and I turned around to do that in the aisle and as I did I saw the water and I decided that was better, so I just jumped up on the seat and dove over-board.
Q: What was the first thing that caught on fire in your recollection of it?
A: Everything caught at the same time.
Q: By "everything" you're referring to what?
A: My jacket well, it actually was the jacket and then that went up because I was looking through fire, my hair caught on fire then.
* * * * * *
Q: Did you have the opportunity to observe the flame that came out of the lighter?
A: No. I didn't see a flame. I just suddenly I was the flame.
Q: You were engulfed in flame suddenly?
A: Yes, uh-huh.
(B. Willard Depo. at 23-25).
Individuals on the marina dock stated that they heard a "whoof" or "whoomf" sound come from the direction of the Willard's boat and saw that it was engulfed in flames. (C. Edwards depo. at 17-20; T. Clayton depo. at 9-12; E. Borland depo. at 10-15). Mr. Willard described the ignition of the fire as a "fffoom."
Mrs. Willard suffered burns on her face, forearms and ankles. Mr. Willard suffered minor burns on his leg. The boat burned to the water line. The Willards did not recover the lighter after the accident.
CLAIM
Plaintiffs brought this action against Bic Corporation alleging claims for strict liability and negligence. Plaintiffs claim that Bic negligently designed, marketed, advertised, sold and promoted the subject lighter and failed to provide adequate warnings. Plaintiffs also claim that Bic defectively designed and manufactured the lighter rendering it unreasonably dangerous. Plaintiffs further allege that Bic violated the Merchandising Practices Act, Mo.Rev.Stat. § 407.010, et seq., claiming that Bic omitted or concealed information about its lighters. Plaintiffs have also asserted a claim for punitive damages.
There are well settled principles in ruling a motion for summary judgment. Summary judgment is appropriate when there is no genuine issue of material fact present in the case and judgment should be awarded to the party seeking the motion as a matter of law. Camp v. Commonwealth Land Title Ins. Co., 787 F.2d 1258, 1260 (8th Cir.1986). However, because summary judgment remedy is drastic, it should not be granted unless the moving party has established the right to a judgment with such clarity that there is no room for controversy. Umpleby v. United States, 806 F.2d 812, 814 (8th Cir.1986). In addition, the party opposing summary judgment motions may not rest upon the allegations in their pleadings. The nonmovant must resist the motion by setting forth specific facts showing there is a genuine issue of fact for trial. Fed.R.Civ.P. 56(e); Buford v. Tremayne, 747 F.2d 445, 447 (8th Cir. 1984). In Agristor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir.1987), the Court stated that such a motion is to be viewed in the light most favorable to the opposing party who also must receive the benefit of all reasonable inferences to be drawn from the underlying facts. In Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552-53, 91 L. Ed. 2d 265 (1986) the court held that summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case. "In such a situation, there can be `no genuine issue as to any material fact' since a *1063 complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."
In ruling a motion for summary judgment, the Court does not decide material factual issues, rather it determines whether or not they exist. Columbia Union Nat'l Bank v. Hartford Accident & Indem. Co., 669 F.2d 1210, 1212-13 (8th Cir. 1982). Summary procedures are appropriate where the issues for resolution are primarily legal rather than factual. Lomar Wholesale Grocery, Inc. v. Dieter's Gourmet Foods, Inc., 824 F.2d 582, 585 (8th Cir.1987), cert. denied, 484 U.S. 1010, 108 S. Ct. 707, 98 L. Ed. 2d 658 (1988). Issues of fact must be material to a resolution of the dispute between the parties; where the only disputed issues of fact are immaterial to the resolution of the legal issues, summary judgment is appropriate. Id. at 585.
With these standards in mind, the Court will proceed to consider defendant's motion for summary judgment.
ARGUMENT
Bic asserts that summary judgment is appropriate in this case because plaintiffs cannot submit sufficient evidence to support their claims. Plaintiffs claim that Bic was negligent in the manufacture and design of the lighter and claim that the lighter was unreasonably dangerous due to defective design. Specifically, Mrs. Willard claims that this negligence and defect caused her to suddenly become engulfed in flames when she lit her cigarette with the lighter. However, Bic asserts that there is no causal relationship between the occurrence of this incident and any alleged defect in the lighter.
In order to prove their negligence claim, plaintiffs must establish the following elements:
1. A legal duty on the part of the defendant to conform to a certain standard of conduct or protect others against unreasonable risks;
2. A breach of that duty;
3. Proximate cause between the conduct and the resulting injury; and
4. Actual damages to plaintiff's person or property.
Hoover's Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. 1985) (en banc).
In order to prove their claim of strict liability plaintiffs must prove the elements outlined in the Restatement (2d) of Torts § 402(a) (1976), adopted by the Missouri Supreme Court in Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362, 364 (Mo. 1969). Keener and its progeny have established essentially four elements central to plaintiff's burden of proof in strict liability cases.
1. That the product when sold was in a defective condition unreasonably dangerous for its intended use;
2. That the product reached the user without substantial change from the condition in which it was sold;
3. That the accident was proximately caused by the defective condition; and
4. That the product was being used at the time of the accident in a reasonably intended manner.
Under negligence or strict liability, one essential element that the plaintiff must prove in a products liability case is that the defect in the product or the negligence of the manufacturer was the proximate cause of the injuries sustained by the plaintiff while he was using the product in a reasonably intended manner. Garrett v. Jos. Schlitz Brewing Co., 631 S.W.2d 652, 654 (Mo.Ct.App.1982).
In order to meet their burden of proof, plaintiffs must adduce sufficient evidence to support every element of each of their claims. Church v. Martin-Baker Aircraft Co., Ltd., 643 F. Supp. 499 (E.D.Mo.1986). In addition, plaintiffs cannot premise the case on mere conjecture and speculation, but "must establish it by substantial evidence of probative value, or by inferences reasonably to be drawn from the evidence." Aetna Casualty & Surety Co. v. General Elec. Co., 581 F. Supp. 889, 895 (E.D.Mo.1984), aff'd, 758 F.2d 319 (8th Cir.1985). The facts presented or inferred must tend to exclude all other reasonable *1064 conclusions. Aetna Casualty, 758 F.2d at 322-23.
Bic asserts that it would be speculation and conjecture for a jury to determine causation where an equally plausible explanation for the accident exists, where plaintiff's experts have not based their testimony on admissible evidence but have engaged in speculation and conjecture and where there is no product for examination.
It is plaintiff's burden to prove that the lighter malfunctioned and that such malfunction was the proximate cause of plaintiff's injuries. Plaintiffs must also negate any other reasonable conclusion that may be drawn from the facts. Zafft v. Eli Lilly & Co., 676 S.W.2d 241, 244 (Mo.1984) (en banc). Bic states that not only have plaintiffs failed to demonstrate that a lighter malfunction was the proximate cause of the accident, plaintiffs have also failed to demonstrate that gasoline fumes were not the source of the accident. This is crucial where, as here, there are two equally plausible causes of the accident.
If the injury may have resulted from one of two causes, for one of which, and not the other, the defendant is liable, the plaintiff must show with reasonable certainty that the cause for which the defendant is liable produced the result; and, if the evidence leaves it to conjecture, the plaintiff must fail in his action.
Zafft, 676 S.W.2d at 246.
Evidence which points equally to a cause for which the defendants are responsible and to one for which the defendants are not responsible is not sufficient to make a case of strict liability in tort for submission to a jury. Hale v. Advance Abrasives Co., 520 S.W.2d 656 (1975).
In Hale, the plaintiff brought a strict liability action against a grinding wheel manufacturer for personal injuries he suffered when the wheel disintegrated. Remnants of the wheel were still in existence but there was no direct evidence of plaintiff's claimed defect bad cryolite. Defendant claimed that plaintiff's testimony showed that the grinder's excessive speed, and not the bad cryolite, caused the disintegration. At trial, the jury returned a verdict for defendants.
Plaintiff appealed claiming that circumstantial evidence was sufficient to establish a defect. On appeal, the court held that when a plaintiff relies on circumstantial evidence he has the burden of establishing circumstances from which the facts necessary to prove his claim may be inferred. However, the defect must be inferred without resort to conjecture and speculation. The circumstances must point reasonably to the desired conclusion and must tend to exclude other reasonable conclusions.
The plaintiff in Hale presented evidence that bad cryolite might have caused the accident, but there was also evidence that there could have been a malfunction of the grinder tool, a cause for which the defendants would not have been responsible. Therefore, the Hale court concluded that a determination of which of these factors caused the disintegration of the wheel would be a matter of conjecture and speculation.
Bic asserts that in the case at bar there are two equally plausible theories of causation, one cause for which the defendant Bic would not be responsible. The evidence indicates that within seconds of refueling the boat, Mrs. Willard attempted to light a cigarette with her lighter. She was suddenly engulfed in flames but did not see a flame coming from the lighter. (B. Willard depo. at 25). Two eye-witnesses testified that they heard a "whoof" or "whoompf" upon ignition of the fire and that the entire boat, from cockpit to transom, was aflame in seconds. (T. Clayton depo. at 9-12; E. Borland depo. at 10-15). Mr. Willard described the sound as when you light a barbecue grill: "ffoom." (W. Willard depo. at 98). The fact that at least two equally plausible theories of the cause of the accident exist does not allow the Willards to get to the jury on the issue of causation.
In support of the malfunction theory, plaintiff has presented to the Court, the testimony and opinions of plaintiff's proposed experts. Plaintiff cites Hughes v. American Jawa, Ltd., 529 F.2d 21 (8th *1065 Cir.1976) for its holding that an expert's deposition testimony concerning possible causes of an accident raises unresolved factual issues sufficient to preclude entry of summary judgment in a products liability action.
In addition, expert testimony that a defect in a product was the probable cause of an incident may constitute substantial evidence such that a jury could find that the incident in question resulted from a defect in a product rather than from other causes. Klein v. General Elec. Co., 714 S.W.2d 896, 900 (Mo.Ct.App.1986). Plaintiff also notes that the basis of an expert's opinion may be derived from numerous sources including the opinions of others. Generally, weaknesses in the factual underpinnings of an expert's opinion go to the weight and credibility of his testimony.
However, the facts upon which an expert's opinion is based must measure up to the legal requirements of substantiality and probative force. The question whether such opinion is based on and supported by sufficient facts or evidence to sustain the same is a question of law for the court. Fahy v. Dresser Indus. Inc., 740 S.W.2d 635, 650 (Mo.1987) (en banc). An expert's opinion "is in the nature of a conclusion of fact, but it must have a substantial basis in the facts actually established." Fahy, 740 S.W.2d at 650.
Thus, although Rule 703 has expanded the acceptable bases of expert opinion at common law, this expansion does not extend to make summary judgment impossible whenever a party has produced an expert to support its position. Viterbo v. Dow Chemical Co., 826 F.2d 420, 422 (5th Cir.1987). Accordingly, while questions relating to the bases and sources of an expert's opinion affect the weight to be assigned to that opinion, in some cases the source upon which an expert's opinion relies is of such little weight that the jury should not be permitted to receive that opinion. The court may inquire into the reliability and foundation of any expert opinion to determine admissibility.
In Garrett v. Jos. Schlitz Brewing Co, 631 S.W.2d 652 (Mo.Ct.App.1982), the Missouri Court of Appeals sustained the trial court's directed verdict on the basis that the plaintiff failed to show proximate cause. Plaintiff claimed that an outdoor electrical sign, which produced an electrical shock causing plaintiff to fall ten feet, was defective and caused plaintiff's injuries. Plaintiff claimed that water had accumulated inside the sign which caused an electrical short circuit. Plaintiff's expert testified that, in his opinion, water accumulation in the sign was a likely cause of plaintiff's injury.
However, the expert had never observed the sign and could not testify as to the condition of the sign at the time of the accident. Moreover, the expert's conclusion was based on the assumption that there was water in the sign on the day of plaintiff's injury. The Court of Appeals stated that the expert's opinion assumed that there was water in the sign. However there was no evidence which tended to establish the presence of water in the sign.
The Missouri Supreme Court has ruled that an expert's opinion as to the cause of damage must be a conclusion of fact and must have a substantial basis in facts actually established by the evidence. The opinion of an expert may not be invoked to establish facts that are missing from plaintiff's case and which form the basis of the expert's opinion. Craddock v. Greenberg Mercantile, Inc., 297 S.W.2d 541, 548 (Mo.1957). In other words, an expert's opinion may not be invoked to establish a fact that cannot be proven by other competent evidence. Id. 631 S.W.2d at 655.
Further instructive on the issue of expert testimony is Hargan v. Sears, Roebuck & Co., 787 S.W.2d 766 (Mo.Ct.App.1990). In Hargan, the plaintiff brought a personal injury action against a department store and escalator manufacturer. Plaintiff claimed that her fall was caused by an optical illusion which resulted from defendant's failure to have working foot lights on an escalator. The trial court did not allow plaintiff's expert to testify because *1066 his opinion was based upon speculation. The Missouri Court of Appeals affirmed the trial court commenting that the record was devoid of facts supporting the expert's opinion and the expert's opinion merely presumed what the plaintiff saw. The expert admitted that he had no way of knowing within a reasonable degree of certainty what the plaintiff saw.
Mid-State Fertilizer Co. v. Exchange National Bank of Chicago, 877 F.2d 1333 (7th Cir.1989), rejected an expert's affidavit on the basis that it was conclusory and insufficient to establish a genuine issue of material fact. The Court of Appeals affirmed emphasizing the lack of facts and inferential process of the expert's opinion; "an expert's declaration, full of assertions, but empty of facts and reasons, won't get a case past a motion for summary judgment, for the judge must look behind [the expert's] ultimate conclusion ... and analyze the adequacy of its foundation." Id. at 1339.
Thus, it is clear that an expert's interpretation and opinions which are not supported by the evidence are insufficient to create questions of fact for the jury. With these principles in mind, the Court will address plaintiff's proposed experts.
Mr. Warman
Plaintiff's accident reconstructionist, Mr. Michael Warman, testified that in his opinion, accumulation of gas fumes was not the cause of the fire. Mr. Warman did not consider the timing, sequence or atmospheric conditions which would have an effect on gas fume accumulation and Mr. Warman admitted that he would be speculating without knowledge of such factors. (Warman depo. at 46-47, 79-80).
Bic asserts that Warman's testimony is speculative and conjectural. Bic argues that not only is Warman's opinion incompetent, it is outside the realm of any expertise which Mr. Warman might possess. Mr. Warman offers his testimony that the lighter malfunctioned. However, Mr. Warman has never before testified in a lighter case and does not consider himself to be an expert in the manufacture and design of lighters. (Warman depo. at 47).
Mr. Warman admitted that he could not determine whether there was a leak in the engine or gas lines or whether there was anything wrong with the motor or the engine. (Warman depo. at 81-82). Warman also admitted that he could only speculate with respect to several crucial factors concerning dissipation of gas fumes. Warman testified that he did not know the boat speed as the Willards were pulling away from the dock:
Q: So at this point it would be pure speculation for you to say that fumes dissipated at a certain rate or dissipated at all?
A: That's correct.
Furthermore, the testimony of Bonnie Willard does not support Mr. Warman's theory. Mrs. Willard stated that when she lit the lighter the first thing she knew was that she was on fire and she did not see a flame. (B. Willard depo. at 24-25). Mr. Warman claims that accident reconstruction supports the malfunction theory even though there is no testimony to support this theory.
There appears to be no reliable basis for Mr. Warman's opinion which has no underlying facts to support it. Mr. Warman has little or no knowledge regarding lighters and did not have an occasion to examine the lighter. The shortcomings of Mr. Warman's testimony go not to his credibility but to his ability to assist the jury. However, speculation will not assist the jury. Opinions are valueless as evidence without exploration of the underlying facts and rationale showing the path from fact to opinion. United States v. R.J. Reynolds Tobacco Co., 416 F. Supp. 316, 325 (D.N.J. 1976).
Mr. Sanders
Plaintiff's second proposed expert is a water patrolman who arrived at the scene of the accident when the boat was not on fire, but was still smoking from the accident. Mr. Sanders' examination of the boat revealed that the gas tank was still intact and still had fuel in it. Mr. Sanders concluded that the point of origin of the *1067 fire was the cigarette lighter but did not draw any conclusion regarding whether the lighter malfunctioned. (Sanders depo. at 331-32).
Mr. Sanders testified that gas fumes generally produce a flash fire and stated that it was rare for an outboard motor boat to catch on fire. Mr. Sanders added that on the day of the accident it was windy "so if there were a lot of fumes in the boat that would help getting them out." (Sanders depo. at 23-24).
Q: If the facts were such that it showed that Mr. and Mrs. Willard were both seated in the driver's seat and the front passenger seat of the boat in question facing forward, and that there was no source of gasoline in the boat other than the motor and what would be in the fuel line and the gas tank, under those circumstances, was the fact that Mr. Willard was not burned in a similar manner a significant factor as far as you were concerned?
A: Yes, sir, it was. Being the only gas tank in the boat was in the back of the boat, I found no evidence of any other type of fumes up there, what remains that I had there and just the from what witness statements and stuff, you know.
* * * * * *
A: From the position they were in, if a gas-related fire happened in the boat and they were where they were at or where they stated they were at, in the front of the boat, generally, without going back to the origin of the fire which would be in the back of the boat, actually walking back there, you know, if it was a flash fire and they were seated they would possibly have burns to the back of the arms, back of the neck, if they were standing, had shorts on, which ever exposed points of flesh there was, that didn't have something to block it like a seat or some article of something like that nature. (Sanders depo. at 31-32).
Mr. Sanders expert testimony is ambiguous and inconclusive at best. Moreover, in his testimony, Mr. Sanders expressly disqualified himself as an expert in the reconstruction of boat fires.
Q: So you don't consider yourself an expert with respect to watercraft fire or reconstruction of watercraft fire accidents?
A: No, sir.
* * * * * *
Q: And again you don't consider yourself an expert in the reconstruction of boat fires, do you?
A: Not an expert, no.
(Sanders depo. at 27, 32). Self-disqualification takes Mr. Sander's opinions outside the realm of expert testimony and places his testimony in the category of a lay witness. Lay witnesses are not capable of rendering such opinions. Mr. Sanders essentially admits that his opinion is merely guesswork.
Q: So your opinion in this case is in large part a guess on your part as to how the accident may have occurred?
A: Just with what experience and what I could gain out throughout the investigation, yes, sir.
Mr. Sanders has not demonstrated that he has any expertise in the area of lighter malfunction or fire reconstruction. Mr. Sander's testimony suffers from the same weaknesses as Mr. Warman's testimony and would not be helpful to a jury. The shortcomings of Mr. Sanders' testimony go not to his credibility but to his ability to assist the jury.
Dr. Geremia
Plaintiff's third proposed expert is Dr. Geremia. Dr. Geremia concluded that the accident was caused by a "malfunction of the lighter that caused an uncontrolled ejection of the ... fuel." (J. Geremia depo. at 4). Dr. Geremia testified that in formulating his opinion he considered Warman's reconstruction of the accident, the investigative report and deposition transcript of Terry Sanders, various pleadings, medical records, statements of various witnesses and a work order from Star Marine.
The mechanism of this malfunction was, in Dr. Geremia's estimation, caused by a "loss of flow control in which an excessive amount of fuel comes out, in fact excessive *1068 enough so that liquid gets past the orifice and some into the jet." (J. Geremia depo. at 79). Dr. Geremia registered his opinion that the lighter malfunctioned notwithstanding his testimony concerning the basis for his opinion.
Q: Have you done any testing in connection with this case?
A: No.
* * * * * *
Q: Have you visited the scene of the accident, Doctor?
A: No.
Q: Have you inspected the boat involved in the accident?
A: No.
Q: Have you interviewed any witnesses relating to this accident?
A: No.
Q: Have you talked with Mrs. Willard regarding the accident?
A: No.
Q: Have you talked with Mr. Willard regarding the accident?
A: No.
Q: Have you conferred with any other experts or consultants regarding this case?
A: No.
Q: Have any of them conferred with you?
A: No.
Q: What is your understanding of the availability of the lighter in this case?
A: It's not available. It was lost in the accident.
Q: So you haven't examined the lighter which is alleged to have been involved in the accident?
A: That's true.
Q: Have you examined any other Bic lighters in connection with this case?
A: No.
* * * * * *
Q: As to the condition of those components in the Willard lighter you don't know what their condition was when the lighter left the hands of Bic, right?
A: I don't know what the specific condition of each of those components was, no.
Q: You don't know the general condition of them, do you?
A: No, I don't know the general condition.
Dr. Geremia assumes as true the findings and conclusions of Mr. Warman, yet admits that he has made no independent evaluation of reconstruction of the accident as hypothesized by Mr. Warman. Dr. Geremia's opinion as to the cause of the accident and the lighter are, in his own words, based on reports authorized by Mr. Warman and Mr. Sanders. However, this Court has determined that the testimony of Mr. Warman and Mr. Sanders is based on mere speculation and conjecture.
Dr. Geremia testified that his opinion was derived from other investigators.
Q: You take [Warman's] reconstruction of the accident at face value and add to it a scenario which you believe would explain a malfunction of a lighter?
A: I add it to my knowledge of the lighter and the causes and sequences which are consistent with his description and conclusion.
The Willards state that they rely on the expert testimony of Dr. Geremia that the most probable manner in which the lighter could cause such a fire was a malfunction of that product. Yet, Dr. Geremia has not demonstrated that he bases his opinion on any facts which demonstrate that the lighter would have to malfunction in order to cause a fire.
Dr. Geremia has not examined the subject lighter, has not conducted testing in support of his opinions and he relies upon the speculative and conjectural testimony of non-eyewitnesses. Even assuming that Dr. Geremia's testimony is anything but mere speculation, plaintiffs have not made any showing that it is customary for experts in Dr. Geremia's field to base their conclusions on the type of secondary sources which Dr. Geremia has based his opinion.
While plaintiff asserts that the lighter was the only likely cause of the fire, Bic *1069 concludes that plaintiffs are unable to prove their claim that a malfunctioning Bic lighter was the more reasonable cause of the Willard's injuries. Plaintiffs are unable to refute the equally plausible theory that the accident was caused by an accumulation of gas fumes.
Because the evidence points equally to a cause for which Bic might be responsible and to a cause for which Bic would not be responsible, plaintiffs have not made and are unable to make a sufficient case for submission to a jury. Plaintiff boldly asserts that the testimony of Bill Berg and William Willard, viewed in the light most favorable to plaintiffs, rules out the presence of gasoline fumes in the proximity of Mrs. Willard's face at the time of ignition of the lighter. The Court disagrees that the mere conclusions of lay witnesses rule out the presence of gas fumes. Similarly, the reports and conclusions of Sanders and Warman do not "eliminate other causes of the incident."
Plaintiffs' proposed expert's conclusions do not measure up to the requirements of substantiality and probative force. Their opinions are not supported by sufficient facts or evidence and therefore would not assist the jury. In the instant case, the sources upon which the alleged experts base their opinions are of such little weight that the jury should not be permitted to receive them. The experts' opinions are based on assumptions which are not supported by facts actually established.
In addition, plaintiff's cases on causation can be distinguished from the case at bar. In Winters v. Sears, Roebuck & Co., 554 S.W.2d 565 (Mo.Ct.App.1977), a television caught fire. The Winters expert testified that he could not pinpoint the specific defect because too many parts around the picture tube had been destroyed. The Court stated that the existence of a defect could be inferred from circumstantial evidence without the aid of expert opinion evidence. See Williams v. Ford Motor Co., 411 S.W.2d 443 (Mo.Ct.App.1966).
Plaintiffs cite Winters for its holding that a jury may determine that an incident resulted from a defect rather than from other causes based upon an opinion of a qualified expert that the defect was the more reasonable probable cause. However, Bic aptly points out that, unlike a television set, the very purpose of a cigarette lighter is to produce a flame and plaintiff's alleged experts have not shown that a malfunction of the lighter was the more reasonable probable cause of the accident.
Plaintiff also cites Klein v. General Elec. Co., 714 S.W.2d 896 (Mo.Ct.App.1986) in which a timed coffeemaker caught on fire. The Court stated that although plaintiff's experts were unable to pinpoint a specific defect in the coffeemaker, they noted potential defects. Plaintiff's experts concluded that but for a malfunction of the coffeemaker there would not have been a fire. Again, Bic points out that the purpose of the lighter is to produce a flame. Thus, the analogy plaintiff attempts to draw simply does not apply where the Klein expert testimony was based on the premise that but for a malfunction there would not have been a fire.
The court in Tucker v. Central Hardware Co., 463 S.W.2d 537, 540 (Mo.1971) reminded the parties that although a plaintiff is not required to produce `absolutely positive' proof, a finding must be based upon probative facts, and a verdict founded on speculation and conjecture cannot stand. The circumstances must point to the desired conclusion with such a degree of certainty as to make that conclusion reasonable and probable and must rise above the stature of guesswork, speculation or surmise. Gray v. Williams, 289 S.W.2d 463 (Mo.Ct.App.1956).
In the instant case, plaintiffs have not shown that a malfunction of the lighter was the more reasonable probable cause of the fire. Plaintiffs have not been able to direct this Court to any facts which support the theory that the lighter malfunctioned. Plaintiffs' alleged experts' opinions would be of no assistance to the jury where such opinions are based on mere speculation and conjecture.
Plaintiffs have also asserted a claim for punitive damages. Defendants *1070 assert that the basis for the claim is unclear because Bic maintains that there is a complete lack of evidence or claim to sustain a proof for punitive damages in this case. The Missouri Supreme Court has stated:
Acts justifying imposition of punitive damages must be willful, wanton, malicious or so reckless as to be in utter disregard of the consequences. There must be some element of wantonness or bad motive.
McClellan v. Highland Sales and Investment Co., 484 S.W.2d 239, 242 (Mo.1972). Bic asserts that as a matter of law there is no evidence to support a verdict for punitive damages and accordingly, the claim should be dismissed.
Moreover, the claim for punitive damages should fail as a natural consequence of the dismissal of plaintiffs' other substantive legal claims for compensatory damages. Plaintiffs have failed to show that a malfunction of the lighter was the more reasonable probable cause of plaintiff's injury. Therefore any claim for punitive damages as a result of any injury must fail because plaintiff has not presented this Court with sufficient evidence to make a submissible case to a jury on the issue of the alleged malfunction.
Missouri Merchandising Practices Act
Plaintiffs allege that Bic has concealed, suppressed or omitted material facts regarding the dangerous and/or defective character of its lighters and, further, that Bic was aware of these conditions as a result of receiving numerous consumer complaints. Thus, plaintiffs claim that Bic violated the Missouri Merchandising Practices Act. Mo.Rev.Stat. § 407.010 et seq.
The Act provides a private cause of action for:
1. Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 407.020, may bring a private civil action ... (emphasis added).
The Act does not define deceptive practices, thereby leaving to the court in each particular instance to determine whether fair dealing has been violated. State ex rel. Webster v. Areaco Inv. Co., 756 S.W.2d 633 (Mo.Ct.App.1988).
However, plaintiffs have not shown that an injury was proximately caused by defendant's actions. State ex rel. Ashcroft v. Marketing Unlimited, 613 S.W.2d 440, 445 (Mo.Ct.App.1981). This Court has found that plaintiffs have not shown that a malfunction of the lighter was the more reasonable probable cause of the accident. Therefore, plaintiffs do not fall under the statute because they cannot show that they purchased a good and thereby suffered a loss as a result of its use. Plaintiffs were unable to refute the equally plausible theory that an accumulation of gas fumes caused the fire when Mrs. Willard lit the Bic lighter.
Bic adds that even if plaintiffs had properly pleaded causation, Bic's conduct does not constitute an unfair practice within the meaning and intent of the Act. Plaintiff has the burden of proving that the defendant's conduct amounted to an unfair practice. After a survey of Missouri cases brought under the Act, Bic summarizes the common fact pattern; a defendant makes misleading and deceptive representations or omissions directed toward the complaining consumer with knowledge that the information is untrue or misleading and with knowledge that the consumer would rely on this information or consider it when making a purchase.
In the case at bar, Mrs. Willard purchased a disposable butane lighter for her personal use. She has testified that she read and understood the instructions affixed to Bic lighters and their cellophane packages. The warning and instructions accompanying a Bic lighter of the type alleged to be involved in this occurrence state:
*1071 WARNING:
CONTAINS EXTREMELY FLAMMABLE GAS UNDER PRESSURE
ONLY ADJUST FLAME WHEN LIGHTER IS LIT. ROTATE WHEEL TOWARD + FOR HIGHER FLAME, TOWARD - FOR LOWER FLAME
KEEP AWAY FROM FACE WHEN IGNITING
BE SURE FLAME IS COMPLETELY OUT AFTER EACH USE
KEEP AWAY FROM HEAT ABOVE 120°F (49°C). DO NOT INCINERATE AND AVOID PROLONGED EXPOSURE TO SUNLIGHT
DO NOT KEEP LIT CONTINUOUSLY FOR MORE THAN 30 SECONDS
KEEP OUT OF REACH OF CHILDREN
The only representations made to Mrs. Willard by Bic were those contained on the packaging and labels which accompany the Bic lighters when sold. Bic states that there is no misrepresentation, falsity and no concealment contained in the warning language. The warnings and representations on the package are not statements known to be false nor has Bic omitted any information from these warnings that is known to be misleading or known to create a false impression to the consumer.
Plaintiffs asserts that Bic has been aware of the allegedly dangerous nature of its disposable lighter for years. Plaintiffs state that Bic has never advertised that some people have complained that they experienced a lighter which failed to extinguish. Plaintiffs maintain that intercompany memos demonstrate that Bic had knowledge of continuing complaints regarding failure of the Bic adjustable lighter and that Bic's engineering department confirmed the validity of the complaints. Plaintiffs argue that if Bic was aware of consumer complaints and recurring injuries caused by failure of its products, and neither changed its design or manufacturing process nor warned consumers of the specific hazards of its product, then Bic has committed a "concealment, suppression or omission" of material fact under the Missouri Act. Plaintiffs assert that they have evidence showing that Bic knows that its product, even when used as intended, is capable of causing great physical harm and Bic failed to warn the consumer of the potential consequences of using the product.
Bic maintains that it has supplied adequate warnings and instructions with its product. Bic submits that these warnings and instructions are reasonably calculated to result in safe product usage. The warnings given are not misleading, deceptive or untrue. Consequently, Bic asserts that its conduct in marketing the disposable lighter does not amount to an unfair practice under the Act and this claim should be dismissed.
The purpose of the Merchandising Practices Act is to "supplement the definitions of common law fraud in an attempt to preserve fundamental honesty, fair play and right dealings in public transactions." State ex rel. Danforth v. Independence Dodge, Inc., 494 S.W.2d 362, 368 (Mo.Ct. App.1973). Bic responds that there is no case law to support the position that maintaining a cause of action under Chapter 407 in conjunction with a products liability action is consistent with the letter and spirit of the Unfair Merchandising Practices Act. Bic asserts that if plaintiff has any cause of action it is under Missouri products liability law and not under the Unfair Merchandising Practices Act. The Unfair Merchandising Practices Act was designed to provide a cost effective and expedient method for consumers and the Missouri Attorney General's office to address fraudulent conduct.
Accordingly, it is hereby
ORDERED that defendant Bic's motion for summary judgment is granted. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600004/ | 1 So. 3d 38 (2008)
Billy Frank PETERSON and Jim E. Ellis, Jr.
v.
CITY OF ABBEVILLE, a municipal corporation.
1051802.
Supreme Court of Alabama.
June 20, 2008.
*39 John E. Byrd, Dothan, for appellants.
Steadman S. Shealy, Jr., of Shealy, Crum & Pike, P.A., Dothan, for appellee.
BOLIN, Justice.
The City of Abbeville ("the City") sued Billy Frank Peterson and Jim E. Ellis, Jr. (collectively referred to as "the defendants"), on September 19, 2003, alleging that the defendants had placed a mobile home on certain real property owned by Peterson in such a way that violated § 91.3A2 of Art. IX of the Code of Ordinances of the City of Abbeville, entitled "Special Provisions for Zoning and Subdivision." The City sought an order requiring the defendants to relocate the mobile home on the property so as to comply with § 91.3A2.
On October 21, 2003, the defendants filed a motion to dismiss the complaint against them, alleging that the complaint failed to state a claim upon which relief could be granted. See Rule 12(b)(6), Ala. R. Civ. P. The City responded, and on March 24, 2004, the trial court entered an order denying the defendants' motion to dismiss.
The defendants answered the complaint on April 28, 2004. On May 5, 2004, the defendants amended their answer and filed counterclaims alleging breach of an agreement, fraud, negligence and/or wantonness, interference with a contractual relationship, trespass, defamation, invasion of privacy, and negligence of the City's agent.
On June 16, 2004, the City moved pursuant to Rule 12(b)(6), Ala. R. Civ. P., to dismiss the counterclaims against it. On June 29, 2004, the trial court entered an order denying the City's motion to dismiss the counterclaims.
On June 29, 2005, the defendants moved for a summary judgment. On August 3, 2005, the City responded to the defendants' motion for a summary judgment. *40 The trial court, on December 14, 2005, entered an order denying the defendants' motion for a summary judgment.[1]
On June 1, 2006, the City moved for a summary judgment. On June 27, 2006, the defendants filed their response in opposition to the City's motion for a summary judgment. Following a hearing, the trial court, on August 17, 2006, entered an order granting the City's motion for a summary judgment and ordering the defendants to relocate the mobile home on Peterson's lot so as to comply with § 91.3A2 of Art. IX of the Code of Ordinances of the City of Abbeville. The trial court also summarily dismissed the defendants' counterclaims against the City with prejudice. The defendants appeal.
Standard of Review
In reviewing the disposition of a motion for a summary judgment, we apply the same standard the trial court used in determining whether the evidence before it presented a genuine issue of material fact. Bussey v. John Deere Co., 531 So. 2d 860, 862 (Ala.1988); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that no genuine issue of material fact exists, the burden then shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So. 2d 794 (Ala.1989). Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala.1989). This Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala.1990).
Facts
On November 5, 2002, a tornado struck the City, causing widespread and extensive damage. The tornado destroyed Peterson's house, which was located on two contiguous lots at 374 Hickory Grove Road. Peterson's daughter and his son-in-law, Ellis, resided in the house with him. Following the destruction of the house, Peterson, his daughter, and Ellis relied on friends for housing.
In December 2002, Ellis purchased a double-wide mobile home to place on Peterson's property. Section 91.3A2 of Art. IX of the City's Code of Ordinances addresses mobile homes and provides:
"The mobile unit shall be oriented with the long axis parallel to the street on which the lot fronts and in no case shall the unit be located within twenty (20) feet of any permanent type of building. The unit shall not be located closer than ten (10) feet of any lot line and must be a minimum of twenty-five (25) feet from the street."
At some point after Ellis purchased the mobile home, Patricia Jones, Peterson's neighbor, contacted James Giganti, the city clerk, and informed him of the defendants' intentions of placing a mobile home on the Peterson property. In his capacity as city clerk, Giganti was the individual with the authority to make decisions regarding the placement of mobile homes within the municipal limits of the City. Jones contacted Giganti a second time to inform him that the defendants had poured *41 a concrete slab perpendicular to Hickory Grove Road and in close proximity to her property line. Giganti then attempted to contact the defendants by telephone to discuss the placement of the mobile home but was unsuccessful in doing so because the defendants were staying with friends. Giganti did not visit Peterson's property at this time to investigate Jones's complaint because he was in the "middle of everything else" in the aftermath of the tornado.
Subsequently, on December 18, 2002, Jones contacted Giganti's office a third time complaining about the placement of the mobile home on Peterson's property. Giganti's secretary, knowing a permit had not been issued for a mobile home in that location, sent a police officer to Peterson's property to stop the installation of the mobile home. The defendants were told that they needed to contact the city clerk's office. At the time the installation of the mobile home was stopped, the defendants had dug a septic tank and had installed field lines, had poured a concrete pad, and had installed half of the mobile home perpendicular to Hickory Grove Road and approximately six to eight feet from Jones's property line. The defendants did not inquire into the applicable zoning requirements before beginning the installation of the mobile home and were unaware that a permit was required before a mobile home could be placed within the municipal limits of the City.
The defendants contacted the city clerk's office as requested and met with Giganti on December 18, 2002. Also present at this meeting was Rhett Taylor, a city councilman. During this meeting Giganti informed the defendants of the zoning requirements of § 91.3A2. Ellis represented to Giganti that the Peterson property was approximately 100 feet wide and that the mobile home they were installing was 80 feet long. Ellis told Giganti that the debris from the destroyed house remained on the lots, in the location of the original house, i.e., in the center of the property; that a new septic tank and field lines were in place; and that there was no other way the mobile home could be positioned on the lot other than the way it was being positioned. Ellis further informed Giganti that the concrete pad and half of the mobile home had already been installed on the property. Giganti determined that based on the length of the mobile home and the width of the lot as represented to him by Ellis, the mobile home could not be positioned on the lot in a manner that complied with § 91.3A2 of the City's Code of Ordinances. However, Giganti gave the defendants permission to complete the installation of the mobile home in the nonconforming positionperpendicular to Hickory Grove Road and approximately six to eight feet from Jones's property linebecause half of the mobile home had already been installed, the defendants were homeless and facing an emergency situation, and he did not believe, based on Ellis's representations regarding the width of the property, that the mobile home could be positioned on the property in a manner that would comply with § 91.3A2. Ellis testified that if Giganti had not granted the defendants permission to complete the installation of the mobile home on the Peterson property, he would have returned it to the seller. Giganti testified in his deposition that he informed the defendants that the City would investigate the matter at a later date and that it would handle any problems that arise at that time. Ellis denied in his deposition that Giganti told him that the City would investigate the matter at a later date.
Giganti's subsequent investigation revealed the actual dimensions of the two contiguous lots and the mobile home. The mobile home measured 75 feet, 11 inches *42 in length. The front of the two Peterson lots that border Hickory Grove Road had a combined width of 105 feet. The two lots are 210 feet deep and widen from front to back; the rear width of the combined lots is 154 feet.[2] The width of the lots at the approximate center from front to rear is 125 feet. The City determined that the Peterson property was of sufficient size to allow the mobile home to be placed on the property in a manner that would comply with § 91.3A2.[3]
After the mobile home had been placed on the lots, the City was presented with a petition signed by surrounding property owners requesting that the City enforce § 91.3A2 of the Code of Ordinances. The City ordered the defendants to relocate the mobile home on the lot so that its placement would comply with § 91.3A2. The City offered to pay the expenses associated with relocating the mobile home, including moving the septic tank and the field lines. The defendants, however, refused to relocate the mobile home because, they said, their warranty on the mobile home would be voided if they moved it, they would lose their financing, and the move could potentially damage the mobile home.[4] Giganti testified that in the wake of the tornado the City continued to issue permits to its citizens but was not charging for the permits. He stated that the situation the defendants found themselves in could have been avoided if the defendants had applied for a permit before installing the mobile home.
Analysis
The defendants rely on City of Foley v. McLeod, 709 So. 2d 471 (Ala.1998), and argue that the City is estopped from enforcing § 91.3A2 because, they say, Giganti waived the enforcement of that ordinance by giving them permission to install the mobile home in a nonconforming position on the Peterson property.
In McLeod, the City of Foley sought to enforce a zoning ordinance preventing the replacement of mobile homes in a nonconforming mobile-home park. The Green Acres mobile-home park had been in continuous operation since approximately 1955. Kenneth McLeod and Jackie McLeod purchased Green Acres in 1982 and had operated the mobile-home park since then. In 1967, the City of Foley adopted a zoning ordinance that placed the Green Acres mobile-home park into a single-family residential zone. In 1987, the City of Foley adopted a new zoning ordinance, which placed the Green Acres mobile-home park into a high-density single-family residential zone. Generally, the operation of a mobile-home park within a single-family residential area would have been prohibited by the zoning ordinances; however, the City of Foley had allowed the continued operation of the Green Acres mobile-home park as a preexisting nonconforming use.
In 1994, the McLeods purchased six new mobile homes to replace existing rental units at the Green Acres mobile-home park. The McLeods placed the mobile homes on lots at Green Acres and prepared them for use as rental units. In August 1994, the City of Foley sent the McLeods a letter demanding that the new mobile homes be removed from the Green Acres mobile-home park within 10 days. The City of Foley contended that because *43 the McLeods' mobile-home park was a nonconforming use, their locating different or additional mobile homes at the Green Acres mobile-home park would violate the City of Foley's zoning ordinance. The McLeods refused to remove the mobile homes, and the City of Foley sued, seeking injunctive and declaratory relief. The McLeods contended that the City of Foley should be estopped from complaining of the replacement of mobile homes at the Green Acres mobile-home park because the City of Foley had permitted similar replacements at various times since the enactment of the current zoning ordinance in 1987. The trial court entered a summary judgment in favor of the McLeods.
This Court concluded that the zoning ordinance prohibited the replacement of the nonconforming mobile homes with new mobile homes. However, this Court went on to determine that the City of Foley was estopped from enforcing the zoning ordinance because of its prior acquiescence in the replacement of mobile homes at the Green Acres mobile-home park. This Court stated:
"The McLeods contend that, even if the terms of the City [of Foley's] zoning ordinance would prevent their replacing mobile homes at Green Acres, the City [of Foley] should be estopped from enforcing the ordinance because the City [of Foley] has allowed similar replacements at various times since the ordinance was adopted in 1987. To support this contention, the McLeods presented evidence to show that numerous mobile homes were moved into and out of Green Acres between 1987 and 1994. They also point out that the City [of Foley] presented no evidence indicating that it ever objected to the moving and replacing of mobile homes at Green Acres until August 1994. In further support of their estoppel argument, the McLeods stated, in their response to the City [of Foley's] interrogatories, that they informed the City [of Foley's] building inspector of their plan to purchase the six replacement mobile homes and that he expressed no objection to their plan. Again, the City [of Foley] presented no evidence to refute this statement.
"In City of Prattville v. Joyner, 661 So. 2d 1158 (Ala.1995)(Joyner I), this Court affirmed an injunction estopping the City of Prattville from denying fire protection services to residents and businesses within its police jurisdiction. The Court recited these general principles regarding the application of the doctrine of estoppel against municipal corporations:
"`In Alford v. City of Gadsden, 349 So. 2d 1132 (Ala.1977), this Court explained that "[t]he doctrine of estoppel is rarely applied against a municipal corporation, but it may be applied in a proper case." Id. at 1135, citing City of Montgomery v. Weldon, 280 Ala. 463, 195 So. 2d 110 (1967); Powell v. City of Birmingham, 258 Ala. 159, 61 So. 2d 11 (1952); Brown v. Tuskegee Light & Power Co., 232 Ala. 361, 168 So. 159 (1936). In City of Guntersville v. Alred, 495 So. 2d 566, 568 (Ala. 1986), this Court stated that "[t]he doctrine of estoppel may apply against a municipal corporation when justice and fair play demand it." See also Alabama Farm Bureau Mutual Casualty Insurance Co. v. Board of Adjustment, 470 So. 2d 1234 (Ala.Civ. App.1985).'
"Joyner I, 661 So.2d at 1161-62.
"This Court recently revisited the Joyner I decision in City of Prattville v. Joyner, 698 So. 2d 122 (Ala.1997) (Joyner II), and determined from the facts of that case that the City of Prattville *44 should not have been estopped from denying fire protection services. However, Joyner II did not alter the general rule that, although estoppel is to be cautiously applied against a municipal corporation, it may nonetheless be applied when a municipality's conduct, language, or silence amounts to a representation or concealment of a material fact. See Joyner II, 698 So.2d at 126, quoting State Highway Dep't v. Headrick Outdoor Advertising, Inc., 594 So. 2d 1202, 1204-05 (Ala. 1992).
"Thus, although the doctrine of estoppel is rarely applied against a municipal corporation, it may be applied in a proper case when justice and fair play demand it and where there has been a misrepresentation or concealment of material fact. In the present case, the evidence indicates that numerous mobile homes had been moved into and out of Green Acres over the years. Nonetheless, the City [of Foley] had declined to enforce the zoning ordinance against Green Acres after Green Acres became a nonconforming use in 1967. Even when the City [of Foley] objected in 1994, it objected only after the McLeods had already purchased the mobile homes and had prepared them for rental. Taken as a whole, these factors cause us to conclude that the City [of Foley's] continued acquiescence amounted to a misrepresentation of a material fact, namely that it would not enforce the zoning ordinance to prevent the McLeods from replacing mobile homes at Green Acres. Moreover, it would be unjust and unfair at this point to allow the City [of Foley] to force the McLeods to remove the six mobile homes. Therefore, we hold that as to the installation of these six mobile homes the City [of Foley] is estopped from enforcing the zoning ordinance against the McLeods. On that basis, we affirm the summary judgment against the City [of Foley]."
McLeod, 709 So.2d at 474-75.
As noted in McLeod, the doctrine of estoppel is rarely applied against a municipality; however, it may be applied "in a proper case when justice and fair play demand it and where there has been a misrepresentation or concealment of material fact." McLeod, 709 So.2d at 474. In this case, nothing in the record indicates that the City had historically acquiesced to nonconforming uses under or violations of § 91.3A2 by its citizens. Giganti informed the defendants of the applicability and requirements of § 91.3A2 during the meeting on December 18, 2002. Although Giganti gave the defendants permission to complete the nonconforming installation of the mobile home on Peterson's property, he did so in an effort to accommodate the defendants, who had been left homeless following the tornado, and only after the defendantswhether intentionally or inadvertentlyhad misled him as to the dimensions of the Peterson property and had installed a new septic tank, field lines, a concrete pad, and half of the double-wide mobile home. Accordingly, we conclude that the City is not estopped from enforcing § 91.3A2 because "justice and fair play" do not demand that the doctrine of estoppel be applied based on the facts of this case where there has been no "misrepresentation or concealment of material fact" by the City. McLeod, 709 So.2d at 474.
The defendants next contend that to require them to reposition the mobile home in a manner that complies with § 91.3A2 would work a substantial and unnecessary hardship. The defendants insist that they could lose their financing for the mobile home if they were to reposition it on the property and that it would be virtually impossible to reposition the double-wide mobile home without damaging it.
*45 It is undisputed that the mobile home as currently positioned on the Peterson property violates § 91.3A2 of Art. IX of the City's Code of Ordinances. Section 153 of the City's Code of Ordinances provides that the City may institute such action or proceedings necessary to correct or abate a violation of its ordinances. In Town of Orrville v. S & H Mobile Homes, Inc., 872 So. 2d 856, 857 (Ala.Civ.App.2003), the Town of Orrville filed a complaint against S & H Mobile Homes, Inc., and Lula Powell seeking to enforce the Town of Orrville's zoning ordinance prohibiting the placement of mobile homes on property within the municipal limits of the Town of Orrville that is not specifically zoned for mobile-home use. The evidence indicated that S & H Mobile Homes and Powell were aware of the zoning ordinance and yet placed the mobile home on the particular property. S & H Mobile Homes and Powell requested a variance from the zoning ordinance after the Town of Orrville filed its complaint. The Town of Orrville's board of adjustments voted unanimously to deny the variance. On appeal from the board's decision, the circuit court entered a judgment in favor of S & H Mobile Homes and Powell, denying the Town of Orrville's request to enjoin them from placing a mobile home on property within the municipal limits not specifically zoned for mobile-home use.
In holding that S & H Mobile Homes and Powell were not entitled to a variance, the Court of Civil Appeals stated:
"Alabama law is clear and our courts have repeatedly recognized that variances should be granted sparingly and only under unusual and exceptional circumstances where the literal enforcement of the ordinance would result in unnecessary hardship. Ex parte Chapman, 485 So. 2d 1161 (Ala.1986); see also Board of Zoning Adjustment of Fultondale v. Summers, 814 So. 2d 851 (Ala. 2001); Ex parte Board of Zoning Adjustment of Mobile, 636 So. 2d 415 (Ala. 1994); Board of Zoning Adjustment of Mobile v. Dauphin Upham Joint Venture, 688 So. 2d 823 (Ala.Civ.App.1996); Board of Adjustment of Gadsden v. VFW Post 8600, 511 So. 2d 216 (Ala.Civ. App.1987)....
"....
"... [T]he dispositive issue on appeal is whether the enforcement of the zoning ordinance and the subsequent denial of a variance resulted in an unnecessary hardship to the defendants. `"[T]he unnecessary hardship which will suffice for the granting of a variance must relate to the land rather than to the owner [herself]. Mere personal hardship does not constitute sufficient ground for the granting of a variance."' Ex parte Chapman, 485 So.2d at 1164 (quoting 82 Am.Jur.2d Zoning and Planning § 275 (1976)). Further, a `"self-inflicted or self-created hardship may not be the basis for a variance or for a claim thereof."' Ex parte Chapman, 485 So.2d at 1163 (quoting Thompson, Weinman & Co. v. Board of Adjustment, 275 Ala. 278, 281, 154 So. 2d 36, 39 (1963)).
"It is undisputed that Powell knew of the zoning restriction before she purchased the mobile home. Nevertheless, Powell purchased the mobile home without first seeking and securing a variance. In her brief on appeal, Powell asserts that it would have been futile to apply for a variance in light of McHugh's statement that the zoning ordinance prohibited the placement of the mobile home on the property. Regardless of the alleged futility in applying for a variance, Powell was aware of the zoning restriction but proceeded to place a mobile home on the property. Clearly, Powell created the hardship that she alleged existed, and, therefore, she may not be permitted to take advantage of it. *46 See Ex parte Chapman, supra; see also City of Russellville Zoning Board of Adjustment v. Vernon, 842 So. 2d 627 (Ala.2002)(holding trial court erred by granting variance from zoning restriction where appellee created hardship)."
S & H Mobile Homes, 872 So.2d at 858-61.
It is undisputed that the defendants here installed a new septic tank, field lines, a concrete pad, and half of the double-wide mobile home without inquiring as to the applicable zoning requirements and without first obtaining a required permit from the City. Giganti testified that the present situation could have been avoided had the defendants inquired as to the applicable zoning requirements and sought a permit before beginning the installation of the mobile home. Further, Giganti's permitting the defendants to complete installation of the mobile home was based in part on misrepresentations whether intentional or inadvertentby the defendants regarding the dimensions of Peterson's property and in part on the fact that the mobile home had already been substantially installed. It is clear that the defendants created any hardship that may exist by not inquiring into the applicable zoning laws and obtaining the required permission from the City before beginning to install the mobile home. Therefore, the defendants cannot now rely on that alleged hardship in refusing to reposition the mobile home on Peterson's property in a manner that would comply with § 91.3A2.
The defendants next argue that the trial court erred in summarily dismissing their counterclaims against the City. Rule 28(a)(10), Ala. R.App. P., requires that an appellate brief contain "[a]n argument containing the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on." A single citation to a general principle of law without specific relevance to the issue presented will not satisfy the minimum requirements of Rule 28(a)(10), Ala. R.App. P. Davis v. Sterne, Agee & Leach, Inc., 965 So. 2d 1076 (Ala.2007). The defendants' argument as to this issue consists of a half page and contains only a single citation to general authority relating to the summary-judgment standard of review. Accordingly, we conclude that the defendants' argument as to this issue fails to comply with the requirements of Rule 28(a)(10). "[I]t is well settled that a failure to comply with the requirements of Rule 28(a)(10) requiring citation of authority in support of the arguments presented provides this Court with a basis for disregarding those arguments." State Farm Mut. Auto. Ins. Co. v. Motley, 909 So. 2d 806, 822 (Ala.2005).
Conclusion
The trial court's summary judgment is affirmed.
AFFIRMED.
COBB, C.J., and SEE, LYONS, WOODALL, STUART, SMITH, PARKER, and MURDOCK, JJ., concur.
NOTES
[1] We note that an order denying a motion for a summary judgment is an interlocutory order that will not support an appeal unless certified for a permissive appeal pursuant to Rule 5, Ala. R.App. P. See Continental Cas. Co. v. SouthTrust Bank, N.A., 933 So. 2d 337 (Ala. 2006). The defendants did not seek certification under Rule 5, Ala. R.App. P.; therefore, the denial of their motion for a summary judgment is not before this Court on appeal.
[2] Peterson's son resided in a mobile home that was located at the rear of the two lots.
[3] The debris from the destroyed house was removed from the center of the property by the spring of 2003.
[4] The warranty on the mobile home has since expired. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600015/ | 1 So.3d 951 (2009)
James Roy GRIMES, Appellant,
v.
STATE of Mississippi, Appellee.
No. 2007-KA-00646-COA.
Court of Appeals of Mississippi.
January 27, 2009.
*952 Leslie S. Lee, Jackson, Erin Elizabeth Pridgen, attorneys for appellant.
Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.
Before MYERS, P.J., ISHEE and CARLTON, JJ.
MYERS, P.J., for the Court.
¶ 1. James Roy Grimes appeals his conviction in the Circuit Court of Washington County of statutory rape and sentence of twenty years in the custody of the Mississippi Department of Corrections. Grimes argues that the trial court erred in admitting hearsay testimony under the "tender years" exception and that the jury's verdict was against the overwhelming weight of the evidence. Finding no error, we affirm.
FACTS
¶ 2. On January 4, 2004, ten-year-old A.B. (alternatively, "the victim") and her friend X.Y.[1] rode to church on the church bus as was their normal routine. Once they arrived, A.B. tried to tell her Sunday school teacher, Paulette Cooper, that she needed to tell her something; however, Cooper was busy with the other children and "kept putting her off." Finally, A.B. passed Cooper a note which read, "Ms. Paulette I have to talk to you about James and what he did to us when my mama [sic] went to work and I just need to talk to someone. Please can you." A.B. and Cooper *953 went to the bathroom to discuss the note. Cooper testified as follows about that conversation:
A: ... I stopped immediately and I just kind of held my breath for a second. I said, "[A.B.], what do you have to tell me?" And she proceeded to tell me what happened to her.
Q: Okay. What exactly did she tell you?
A: She said, "Ms. Paulette" The look on her face said more than any words she could have said to me. She said, "Ms. Paulette" James had touched her where he shouldn't be touching her. I said, "Exactly what did he do, [A.B.]?" She said, "He had come out of the shower without any clothes on, Ms. Paulette. He threw me down on the bed, and he held my hands down tight." And said, "He went into the door next to the bed and pulled something out and put it on his private area and then he " she said, "My stomach hurt me this time, Ms. Paulette." She said she started rubbing across her stomach. She said, "It hurt me more than it ever hurt me before." And I said, "Ever hurt you before, [A.B.]? Are you trying to tell me this had happened to you before?" She said, "Yes, ma'am." She said, "It's happened before, and it happens when my mother goes to work at night." And she said that he had stuck his penis in her.
Cooper told A.B. that they had to tell someone and called one of the deacons in to talk with A.B. Deacon Glenn Cleveland came into the bathroom to talk to A.B., while Cooper stood in the doorway of the room. A.B. relayed the same information to Deacon Cleveland.
¶ 3. The sheriff's department and A.B.'s mother were called. A.B. spoke with Evan Smith of the Washington County Sheriff's Department. He testified about their conversation as follows:
[A.B.] stated to me that her and her mother were living with James Grimes... and that after her mother would go to work, James Grimes would play with her breasts and her private area or vagina. And [A.B.] further stated to me that James would lay her down while he would lick her in her private areas, and he would also make [A.B.] touch his penis to make it hard. And the next things that [A.B.] stated to me was that she was very scared because James stated that he would beat her up if she told anybody what was going on or what had happened.
¶ 4. A.B. was then taken to the hospital to be examined. Although the rape kit was negative for semen, Dr. Marily McLeod from Delta Regional Medical Center examined the victim and testified that the victim had a ruptured hymen and an open vaginal vault. Dr. McLeod explained that an open vaginal vault indicated multiple occurrences of sexual activity and that it was extremely unusual in a ten-year-old. Dr. McLeod also diagnosed the victim as having gardnerella, an infection normally seen in sexually active women. Dr. McLeod further testified that she did not need to use a virginal speculum while examining the victim. She was able to use a regular adult-sized speculum, and it caused the victim no pain.
¶ 5. A few days later Officer Percy Miles of the Washington County Sheriff's Department took another statement from the victim. The victim also spoke with Danette Cook from the Mississippi Department of Human Services. A.B. told her that she was abused by Grimes and specifically stated that "he used some pink stuff sometimes on her or he would use spit, and she also said that he would put his private part into her private part." She *954 further relayed to Cook that "it hurted [sic]" and that "it would happen at least once a day when her mother was at work." Cook also testified to the following:
[A.B.] mentioned on the night before she and her friend were spending the night at her home and he came in and tried to, I guess sexually abuse her again, he pulled her pants leg out of her pants, and he also tried to attack the friend but the friend fought him off.
¶ 6. At trial X.Y., the victim's friend from church, testified that she spent the night at A.B.'s house on January 3, 2004, the night before they attended church together. X.Y. stated that after A.B.'s mother went to work that night, Grimes tried to kiss her, pull down her pants, and pull up her shirt while the victim was in the bathroom. As A.B. returned, X.Y. began to push Grimes away and told him to leave her alone. A.B. helped her fight him off and then sat on the couch beside X.Y. Grimes then tried to pull down A.B.'s pants, pull up her shirt, and kiss her. A.B. resisted, and the two girls retreated to her room. Grimes did not pursue and left them alone for the rest of the night. X.Y. then told A.B. that she had to tell someone about what had been happening.
¶ 7. Grimes was tried and convicted of statutory rape. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections.
DISCUSSION
1. Whether the trial court erred in admitting hearsay testimony under the "tender years" exception.
¶ 8. Grimes argues on appeal that the trial court erred in admitting the hearsay testimony of the victim. Rule 803(25) of the Mississippi Rules of Evidence, also known as the "tender years" exception, provides the following:
A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provided substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness....
¶ 9. There is a rebuttable presumption that a child under the age of twelve is of tender years. Allred v. State, 908 So.2d 889, 892(¶ 11) (Miss.Ct.App.2005). On January 4, 2004, at the time A.B. made the statements, she was ten years old. Grimes does not contest the trial court's finding that A.B. was of tender years, and the testimony at the Rule 803(25) hearing was unanimous that A.B. was of normal maturity for a child of her age.
¶ 10. The inquiry, however, does not end there. Once the court finds that a declarant is of tender years, it must then determine whether the child's statements possess "substantial indicia of reliability." M.R.E. 803(25). The comment to Rule 803(25) recites several factors, commonly called the Wright factors, that the trial court may consider:
(1) whether there is an apparent motive on declarant's part to lie; (2) the general character of the declarant; (3) whether more than one person heard the statements; (4) whether the statements were made spontaneously; (5) the timing of the declarations; (6) the relationship between the declarant and the witness; (7) the possibility of the declarant's faulty recollection is remote; (8) certainty that the statements were made; (9) the credibility of the person testifying about the statements; (10) the age or maturity of the declarant; (11) whether suggestive techniques were used in eliciting the *955 statement; and (12) whether the declarant's age, knowledge, and experience make it unlikely that the declarant fabricated.
See also Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). However, the Wright factors are not an exhaustive list, and "no mechanical test is available." Withers v. State, 907 So.2d 342, 350(¶ 23) (Miss.2005) (quoting Eakes v. State, 665 So.2d 852, 865 (Miss. 1995)). Instead, "the unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made." Bell v. State, 797 So.2d 945, 948(¶ 13) (Miss.2001) (quoting Wright, 497 U.S. at 822, 110 S.Ct. 3139).
¶ 11. "The standard of review on appeal from evidentiary rulings is prescribed by Rule 103(a) of the Mississippi Rules of Evidence, which states that `error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected.'" Withers, 907 So.2d at 345(¶ 7) (quoting M.R.E. 103(a)). The standard of review is abuse of discretion, which may be found only where the trial court's decision is without substantial credible evidence, or "the reviewing court has a definite and firm conviction that the court below committed a clear error of judgment and [in the] conclusion it reached upon a weighing of the relevant factors." Id. (internal quotations omitted).
¶ 12. The trial court made findings of fact, on the record, regarding each of the Wright factors. Grimes now argues on appeal that the trial court abused its discretion in finding, when considering the evidence as a whole, that A.B.'s statements contained substantial indicia of reliability. In particular, Grimes argues that A.B. "had already established herself as an unworthy declarant" because she admitted to falsely accusing Grimes of sexual abuse in the past. Grimes also cites to several apparent inconsistencies in the victim's recitations of when the abuse began, its frequency, whether she was afraid of Grimes, and whether Grimes had intercourse with her and X.Y. on the night of January 3, 2004. We shall address each argument in detail.
¶ 13. First, Grimes argues that A.B. was an "unworthy declarant" because she had falsely accused Grimes of raping her approximately one year before the incidents leading to his conviction. After A.B. made the false accusation, she was taken by her father to a hospital. When the examination indicated that she had not been raped, A.B. admitted that she had fabricated the story. However, at the Rule 803(25) hearing, A.B. explained that she understood the difference between telling the truth and telling a lie. She admitted that she had lied the first time she accused Grimes, but explained that she did so because she "had a feeling something was going to happen to [her] and her sisters" and that she wanted her parents to stay together. A.B. further testified that the January 4, 2004, accusation was truthful. She also denied having a motive to lie, explaining that she no longer wanted her parents to reunite.
¶ 14. Next, Grimes cites to what he asserts are inconsistencies in A.B.'s recitations of when the abuse began and the frequency at which it occurred. While we do find some apparent inconsistencies, A.B. consistently stated that the abuse began after her sisters left on October 31, 2003, and that over time it escalated from inappropriate touching to intercourse.[2]*956 Having endured escalating abuse, it is understandable that A.B. was inconsistent when answering questions posed as variations of "When did it start?" Likewise, that she varied when pressed for specific dates of when various sexual acts occurred is of little consequence. Grimes's assertion that A.B. "testified that [Grimes] never threatened her, however, she was afraid that he might harm her" is simply without merit as A.B. described numerous instances of verbal and physical abuse.
¶ 15. Finally, Grimes asserts that A.B.'s account of what occurred on the night of January 3, 2004, has been inconsistent. On our review of the record, A.B. consistently stated that on that night Grimes only inappropriately touched her and X.Y., with a single exception. At the Rule 803(25) hearing, on direct examination by the State, A.B. stated that Grimes inappropriately touched her and X.Y., but he stopped after the pair resisted his advances. However, when asked on cross-examination whether Grimes "[had] intercourse" with her that night, A.B. answered in the affirmative. Likewise, she answered in the affirmative when asked whether "[Grimes] put his penis inside of [X.Y.]."[3]
¶ 16. The trial court weighed its concerns with A.B.'s credibility against the other circumstances, closely following the factors outlined in Wright, and found substantial indicia of reliability in the victim's hearsay statements. It is apparent from our review of the record that the trial court did have substantial, credible evidence upon which to make this finding, and we cannot state with a definite and firm conviction that it reached the wrong result. Accordingly, the trial court did not abuse its discretion in allowing the aforementioned hearsay testimony. This issue is without merit.
2. Whether the jury's verdict was against the overwhelming weight of the evidence.
¶ 17. In Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005), the supreme court discussed appellate review of the weight of the evidence supporting a jury's verdict:
When reviewing a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.... However, the evidence should be weighed in the light most favorable to the verdict. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict. Rather, as the "thirteenth juror," the court simply disagrees with the jury's resolution of the conflicting testimony. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Instead, the proper remedy is to grant a new trial.
(Citations and internal quotations omitted).
¶ 18. While Grimes raises some legitimate concerns about A.B.'s credibility, her testimony was corroborated by X.Y.'s testimony and compelling medical evidence. On our review of the record, viewing the *957 above evidence in a light most favorable to the verdict, we find that the jury's verdict was not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. This issue is without merit.
¶ 19. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY OF CONVICTION OF STATUTORY RAPE AND SENTENCE OF TWENTY YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.
LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR. KING, C.J., NOT PARTICIPATING.
NOTES
[1] To protect the anonymity of minor victims of sexual abuse, we use fictitious initials to represent their names.
[2] A.B. testified that October 31, 2003, was the date that her sisters moved out of the home her mother shared with Grimes. She testified that she could have elected to live with her father as well, but she had decided to stay with her mother.
[3] At trial, however, A.B. again testified that Grimes did not have intercourse with her or X.Y. that night. When impeached with her prior answers, she explained that she had not understood what was being asked. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/727617/ | 97 F.3d 1453
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.William WALKER, Plaintiff-Appellant,v.Pat Howell GOAD; Ralph Beach; Dale Blair; Robert Cox;George Gleitz; Joyce Sutton; Morris Lowe; Claire L.Russell; Jo Ann Coleman; Candice Walker; Lifeskills,Inc.; Warren County, Kentucky, Defendants-Appellees.
No. 95-5583.
United States Court of Appeals, Sixth Circuit.
Sept. 25, 1996.
1
Before: GUY and RYAN, Circuit Judges; JARVIS, District Judge.*
ORDER
2
William Walker, proceeding pro se, appeals a district court judgment denying his motion for relief from judgment under Fed.R.Civ.P. 60(b)(5). This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
3
Seeking monetary and equitable relief, Walker sued numerous defendants, including the clerk of the Warren Circuit Court in Bowling Green, Kentucky, two police officers, an assistant public advocate, three prosecutors, a state court judge, a psychiatrist, a physician, Lifeskills, Inc., and Warren County, Kentucky. He argued that the defendants conspired to violate his civil rights by causing him to be injected with Haldol (a tranquilizer used in the management of psychoses) for a five year period ending in April 1994. The district court dismissed the complaint as untimely. Thereafter, the district court denied Walker's motion for reconsideration. A few days later, Walker filed his Rule 60(b)(5) motion for relief from the order denying his motion for reconsideration. The district court denied the motion as without merit.
4
On appeal, Walker appears to reassert his same claim.
5
Upon review, we construe Walker's Rule 60(b)(5) motion as seeking relief from the underlying judgment and not from the order denying reconsideration. Cf. Peabody Coal Co. v. Local Union Nos. 1734, 1508 and 1548, UMW, 484 F.2d 78, 81 (6th Cir.1973) (appeal from denial of reconsideration is construed as brought from underlying judgment), cert. denied, 430 U.S. 940 (1977).
6
We conclude that the district court did not abuse its discretion when it denied Walker's motion. See Lewis v. Alexander, 987 F.2d 392, 395 (6th Cir.1993). Walker's appeal from the denial of his 60(b)(5) motion does not bring up for review the underlying judgment. See Browder v. Director, Dep't of Corrections, 434 U.S. 257, 263 n. 7 (1978); Hood v. Hood, 59 F.3d 40, 42 (6th Cir.1995) (per curiam). Furthermore, Walker did not establish that the district court relied on a judgment that has been satisfied, released, or discharged, or that a prior judgment upon which the district court's judgment is based has been revised or otherwise vacated. See Fed.R.Civ.P. 60(b)(5); Commodities Export Co. v. U.S. Customs Serv., 957 F.2d 223, 230 (6th Cir.1992). Nor has he established that it is no longer equitable that the district court's judgment "should have prospective application." Id.
7
Accordingly, we hereby affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit.
*
The Honorable James H. Jarvis, II, Chief District Judge for the Eastern District of Tennessee, sitting by designation | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/412701/ | 697 F.2d 27
217 U.S.P.Q. 201, 1983 Copr.L.Dec. P 25,476
EDEN TOYS, INC., Plaintiff-Appellant Cross-Appellee,v.FLORELEE UNDERGARMENT CO., INC., Defendant-Appellee Cross-Appellant.
Nos. 25, 68, Docket 82-7188, 82-7236.
United States Court of Appeals,Second Circuit.
Argued Sept. 13, 1982.Decided Dec. 2, 1982.
Samuel J. Stoll, New York City (Doris S. Hoffman, Robert S. Stoll, Stoll & Stoll P.C., New York City, of counsel), for plaintiff-appellant.
Jed R. Schlacter, New York City (Lauritano & Schlacter, New York City, of counsel), for defendant-appellee.
Before LUMBARD, MANSFIELD and VAN GRAAFEILAND, Circuit Judges.
MANSFIELD, Circuit Judge:
1
Eden Toys, Inc. ("Eden") appeals from an order of the Southern District of New York, 526 F.Supp. 1187, Robert L. Carter, Judge, granting summary judgment dismissing its claim against Florelee Undergarment Co., Inc. ("Florelee") for copyright infringement. Florelee cross-appeals from the district court's grant of summary judgment enforcing Eden's claim against it under the Lanham Act. We affirm in part and reverse and remand in part.
2
The subject of this case is the alleged copying of a drawing of the copyrighted fictional character Paddington Bear, the central figure in a series of children's books written by Michael Bond.1 Paddington and Company, Limited ("Paddington"), a British corporation, holds all rights to these books, and to the characters therein. In 1975 Paddington entered into an agreement with Eden, an American corporation, granting Eden exclusive North American rights to produce and sell, and to sublicense the production and sale of, a number of Paddington products.2 This agreement was amended in 1980 to grant Eden the exclusive North American rights to produce and sublicense all Paddington products except books, tapes and records, stage plays, motion pictures, and radio and television productions.
3
At some point between 1975 and 1977 Ivor Wood, the illustrator of the Paddington Bear books, drew a series of sketches ("the Ivor Wood sketches") for the use of Eden and its sublicensees. There is evidence in the record that in July 1980 Eden obtained in its own name U.S. copyright registration certificate No. TXU 50-185 for these sketches as "derivative" works. Using the Ivor Wood sketches as a point of departure, the C.R. Gibson Company ("Gibson"), pursuant to a sublicense from Eden, produced a design for gift wrap that included seven drawings of Paddington Bear ("the Eden/Gibson drawings"). This gift wrap was first published in January 1978. In March 1980, Eden registered the gift wrap design with the Copyright Office as a derivative work.
4
In November 1979, Eden discovered that Florelee was selling a nightshirt featuring a print of a bear later found by the district court to be "identical in almost all respects" to one of the Eden/Gibson drawings of Paddington Bear. The nightshirt bore the legend " CR Fred Original." After discovering a second nightshirt with the same apparent "knockoff" of the Eden/Gibson drawing Eden filed suit against Florelee in April 1980, alleging both that Florelee had violated Eden's rights under the Copyright Act and that Florelee had made a "false designation of origin" or "false description" of its product, in violation of Sec. 43(a) of the Lanham Act, 15 U.S.C. Sec. 1125(a) (1976), by printing " CR Fred Original" on its shirts. Following cross-motions for summary judgment, Judge Carter granted Florelee's motion for summary judgment dismissing the copyright claim, and Eden's motion for summary judgment enforcing the Lanham Act claim.
5
Reprinted below are (1) a drawing from page 8 of The Great Big Paddington Book, copyrighted by Paddington; (2) the Ivor Wood sketch used as a model by Gibson, and apparently copyrighted by Eden; (3) the Eden/Gibson drawing, copyrighted by Eden and infringed by Florelee, and (4) Florelee's "Fred Bear" drawing.
6
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
7
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
8
Drawing of original Paddington Bear, from pre-existing book copyrighted by Paddington. U.S. Copyright Reg. No. VA 11-588.
9
Ivor Wood sketch, apparently copyrighted by Eden. (See App. 165a-166a.) U.S. Copyright Reg. No. TXU 50-185.
10
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
11
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE
12
Eden/Gibson drawing, copyrighted by Eden. U.S. Copyright Reg. No. VA 44-638.
13
Defendant's "Fred Bear" drawing.
DISCUSSION
14
The Copyright Act authorizes only two types of claimants to sue for copyright infringement: (1) owners of copyrights, and (2) persons who have been granted exclusive licenses by owners of copyrights.3 17 U.S.C. Sec. 501(b) (Supp. IV 1980); 3 M. Nimmer, Nimmer on Copyright Sec. 12.02, at 12-25 (1982). Within the first category are both those who hold copyrights on wholly new material, and those who hold copyrights on derivative works, based substantially on pre-existing materials. 17 U.S.C. Sec. 103(a) (Supp. IV 1980).
15
In the present case, Eden claims to be the owner of the copyrights in certain derivative works--the Eden/Gibson drawing (No. 3 above) and the Ivor Wood sketch (No. 2 above), upon which No. 3 is based--and the exclusive licensee of certain rights under Paddington's original copyrights. We discuss each of these in turn. Eden's complaint is limited to claims based on its ownership of the Eden/Gibson copyrighted drawing (No. 3 above); by express or implied consent of the parties, see F.R.Civ.P. 15(b), Eden's claims as exclusive licensee of certain rights under the original copyrighted Paddington drawings (No. 1 above) were also considered by the court. Eden's later motion to add a claim based on its ownership of the Ivor Wood copyrighted drawings was denied but will be granted on remand.4
Eden's Claims as Copyright Owner
16
Assuming that, upon remand and amendment of the complaint to add its claim based upon the Ivor Wood copyrighted sketch (No. 2 above) derived from pre-existing Paddington Bear drawings (such as No. 1), Eden were found to be the owner of U.S. Copyright No. TXU 50-185, registered July 22, 1980, which covers the Ivor Wood sketch, Eden would be entitled to copyright protection for any novel additions made by this work to the existing copyrighted drawings of Paddington. G. Ricordi & Co. v. Paramount Pictures, 189 F.2d 469, 471 (2d Cir.1951). The fact that Eden apparently did not register this copyright (or the Eden/Gibson copyright) until after Florelee's alleged infringement does not preclude Eden from recovering for infringement of these copyrights occurring before the date of registration. See 17 U.S.C. Sec. 411 (Supp. IV 1980); H.Rep. No. 94-1476, 94th Cong., 2d Sess. 157 (1976); 3 M. Nimmer, supra, Sec. 12.08, at 12-59 (1982). However, Eden's delay in registering the copyrights would preclude it from claiming either attorney's fees or statutory damages. 17 U.S.C. Sec. 412 (Supp. IV 1980).5
17
Similarly, Eden's copyrighted Eden/Gibson drawing (No. 3 above) registered on March 7, 1980, as No. VA 44-638 and the balance of its gift wrap design represent derivative works based on the copyrighted Ivor Wood sketches (including No. 2 above).
18
The district court's finding that Paddington rather than Eden holds the copyrights in the Ivor Wood sketch appears to be incorrect. The record contains a copy of an apparently valid U.S. Copyright Certificate, Reg. No. TXU 50-185, dated July 22, 1980, issued to Eden for "adaptation of designs and additional artistic work" based on "the copyrighted Paddington Bear series of books by Michael Bond, including 'The Great Big Paddington Book.' " We therefore remand the issue to the district court for redetermination of ownership following amendment of the complaint to add the claim based on the copyrighted Ivor Wood sketch. In addition, the district court found or at least strongly implied that Eden's copyright in the Eden/Gibson drawing was invalid because the changes made by Gibson to the pre-existing Ivor Wood sketch were too insignificant to qualify the drawing as an "original work" under the Copyright Act, 17 U.S.C. Sec. 102 (Supp. IV 1980).6 In so finding, however, the district court applied a test that erroneously mingled the standard for sufficient originality and the test for infringement. The standard for sufficient originality is whether a work contains "some substantial, not merely trivial, originality." L. Batlin & Sons, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir.) (en banc), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976); Chamberlin v. Uris Sales Corp., 150 F.2d 512, 513 (2d Cir.1945). The standard for copyright infringement, by contrast, is whether the defendant's work is "substantially similar" to the plaintiff's work. Warner Bros., Inc. v. American Broadcasting Co., 654 F.2d 204, 208 (2d Cir.1981); see also Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960) ("same aesthetic appeal").
19
The difference between these two tests is not merely academic. A work which makes non-trivial contributions to an existing one may be copyrighted as a derivative work and yet, because it retains the "same aesthetic appeal" as the original work, render the holder liable for infringement of the original copyright if the derivative work were to be published without permission from the owner of the original copyright. An example is the second edition of a textbook, which is copyrightable even though it makes only minor revisions of or additions to the first edition. By its very nature a "derivative" work, which is copyrightable as such, borrows substantially from existing works, and is so defined. 17 U.S.C. Sec. 101 (Supp. IV 1980). Yet it is entitled to registration as a copyrighted work even though it would infringe the original copyrighted work if it were created without the permission of the owner of copyright in the underlying work. United States v. Taxe, 540 F.2d 961, 965 n. 2 (9th Cir.1976), cert. denied, 429 U.S. 1040, 97 S.Ct. 737, 50 L.Ed.2d 751 (1977).
20
In this case, the Eden/Gibson variations of the Ivor Wood sketch, although too minor to entitle the Eden/Gibson work to claim a different aesthetic appeal, are still original and substantial enough to deserve independent copyright protection. The numerous changes made by Gibson--the changed proportions of the hat, the elimination of individualized fingers and toes, the overall smoothing of lines--combine to give the Eden/Gibson drawing a different, cleaner "look" than the Ivor Wood sketch on which it is based. Such a contribution satisfies the minimal requirements of originality for registration under the Copyright Act. Durham Industries v. Tomy Corp., 630 F.2d 905, 910 (2d Cir.1980). Since the factual question here depends entirely on visual comparison of exhibits, we are in as good a position as the district court to judge the originality of the work in question. Taylor v. Lombard, 606 F.2d 371, 372 (2d Cir.1979); Jack Kahn Music Co. v. Baldwin Piano and Organ Co., 604 F.2d 755, 758 (2d Cir.1979). To the extent that the district court applied the proper test for originality, its finding of insufficient originality was erroneous. To the extent that the district court applied the Peter Pan Fabrics test for copyright infringement as the test for determining originality, the district court erred as a matter of law. The Ivor Wood variations (No. 2 above) from the original Paddington sketch (No. 1 above), while retaining the same aesthetic appeal as the original, are even more pronounced and substantial than Gibson's contributions to the Ivor Wood sketch and hence clearly meet the requirements of the Copyright Act for originality entitling the owner to registration. Durham Industries v. Tomy Corp., supra, 630 F.2d at 910.
21
Thus, assuming that the district court upon remand finds that Eden holds a valid copyright in the Ivor Wood sketch, this case involves three successive tiers of valid copyrights in designs of the Paddington Bear. The first copyrighted tier (No. 1 above), belonging to Paddington,7 consists of a body of illustrations of Paddington Bear in the books or other publications copyrighted by Paddington. The second tier (No. 2 above) consists of the new contributions made by the Ivor Wood sketch to the existing body of Paddington Bear illustrations. Rights to these contributions are apparently owned by Eden, which claims to hold the copyright to that sketch.8 Finally, the third tier (No. 3 above) consists of the new contributions made by Gibson in transforming the Ivor Wood sketch into the Eden/Gibson drawing. Rights to these contributions are held by Eden, which copyrighted the Eden/Gibson drawing.
22
Thus, whatever the outcome of the exclusive license issue discussed below, Eden appears to be entitled to recover for the cumulative contributions made by the Ivor Wood sketch and the Eden/Gibson drawing to the existing body of Paddington Bear illustrations. The remaining issue, whether Florelee infringed Eden's copyrights, requires little discussion. As the district court noted, the Florelee print is "identical in almost all respects" to one of the validly copyrighted Eden/Gibson drawings and in view of the close resemblance of the Florelee print to the copyrighted Ivor Wood sketch the same observation applies with respect to Eden's contention that Florelee infringed the Ivor Wood copyright.
23
Assuming that Florelee infringed either or both of Eden's copyrights in the derivative works, the fact that the Eden/Gibson drawing was printed on gift wrap while the Florelee design was printed on clothing is irrelevant. No one may copy another's novel additions in a derivative work, even if the copier employs a medium different from that used by the holder of the derivative copyright. Davis v. E.I. DuPont deNemours & Co., 240 F.Supp. 612 (S.D.N.Y.1965).Eden's Claim as Exclusive Licensee
24
Eden also sues for infringement as exclusive North American licensee for certain Paddington Bear products. An exclusive licensee of a right under a copyright is entitled to bring suits for infringement "of that particular right," 17 U.S.C. Sec. 501(b) (Supp. IV 1980), without being required to join his licensor. 3 M. Nimmer, supra, Sec. 12.02, at 12-24 (1981). The question, then, is whether Eden was the exclusive licensee of the right allegedly infringed by Florelee, i.e., the right to produce images of Paddington Bear on adult clothing. Florelee argues correctly that adult clothing was clearly not among the "licensed products" listed in the 1975 agreement between Eden and Paddington, see note 2, supra, and concludes from this fact that Eden was not the exclusive licensee of this right at the time the allegedly infringing garments were sold in 1979. Eden responds that at that time Eden was operating under an informal understanding with Paddington, later formalized in the 1980 amendment to the 1975 agreement, that gave Eden the exclusive North American rights to produce any Paddington Bear product except books, records, and a few other items not relevant here.
25
Under the pre-1978 copyright law, exclusive licenses could be granted orally or by conduct. Id., Sec. 10.03[B], at 10-37 (1980). Under the new Copyright Act, however, Eden's claim of an informal grant of an exclusive license seemingly must fail in light of the statute of frauds provision of the new Act, which states that an exclusive license "is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed...." 17 U.S.C. Sec. 204(a) (Supp. IV 1980). However, since the purpose of the provision is to protect copyright holders from persons mistakenly or fraudulently claiming oral licenses, the "note or memorandum of the transfer" need not be made at the time when the license is initiated; the requirement is satisfied by the copyright owner's later execution of a writing which confirms the agreement. See Dan-Dee Imports, Inc. v. Well-Made Toy Mfg. Corp., 524 F.Supp. 615, 618-19 (E.D.N.Y.1981); 3 M. Nimmer, supra, Sec. 10.03[A], at 10-34 (1982); cf. Khan v. Leo Feist, Inc., 165 F.2d 188, 191-92 (2d Cir.1947) (A. Hand, J.) (applying British law). In this case, in which the copyright holder appears to have no dispute with its licensee on this matter, it would be anomalous to permit a third party infringer to invoke this provision against the licensee.
26
Since the district court rejected as a matter of law the notion that Paddington could orally or through conduct grant an exclusive license to Eden, it made no findings on the issue of whether Paddington had in fact granted Eden such an informal license at any time during Florelee's apparent infringement, and whether that understanding was ever committed to writing. We therefore remand for findings on this issue.9
27
If Paddington granted Eden an informal exclusive license to sell Paddington Bear products in the market in which Florelee sold--adult clothing--and that informal license was later confirmed in a writing signed by Paddington, Eden may sue in its own name, without joining Paddington, for infringement of any Paddington-owned copyrights in that market. Combined with Eden's rights in the derivative work(s) discussed earlier, Eden would be entitled to sue for all damages caused by Florelee's infringement of the Eden/Gibson version of Paddington Bear.
28
If the district court finds that no such informal understanding existed, or that such an understanding was never memorialized, Paddington, which has expressed a willingness to be made a co-plaintiff in this lawsuit, App. 233a, should be joined as a plaintiff. The district court has the power to order the joinder of "any person having or claiming an interest in the copyright [at issue]." 17 U.S.C. Sec. 501(b) (Supp. IV 1980). In this case, the exercise of that power would clearly be appropriate if Paddington in fact owns some of the rights apparently infringed by Florelee. The equities in this case lie heavily in favor of Eden, and it would be unjust to deny redress to Eden because of an easily remediable procedural defect.
Lanham Act Claim
29
Judge Carter granted summary judgment in favor of Eden's claim under Sec. 43(a) of the Lanham Act, 15 U.S.C. Sec. 1125(a) (1976).10 That section grants a cause of action to "any person who believes that he is or is likely to be damaged by the use of" any "false designation of origin" or "false description or representation." Here, Florelee's shirts bore the legend, " CR Fred Original." As Judge Carter aptly noted, "[t]here is no doubt about the falsity of Florelee's copyright notice."
30
The "Fred Bear" image appears to be at best a thinly disguised copy of the Eden/Gibson drawing, possessing no originality. Moreover, there is a likelihood that Eden will be damaged by this falsehood, since, as Judge Carter observed, "[t]his deception can mislead consumers into believing that the clothing they purchased is a unique novelty instead of a common copy" and therefore to be purchased in lieu of or in addition to other Paddington Bear possessions.
31
Section 43(a) reaches false and misleading claims with respect to the defendant's own product, as distinguished from false claims about the plaintiff's product or other matters. See Fur Information & Fashion Council, Inc. v. E.F. Timme & Son, Inc., 501 F.2d 1048, 1051-52 (2d Cir.), cert. denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974); Bernard Food Industries v. Dietene Co., 415 F.2d 1279, 1283-84 (7th Cir.1969), cert. denied, 397 U.S. 912, 90 S.Ct. 911, 25 L.Ed.2d 92 (1970). Since Florelee's claim of originality clearly concerned its own product, the district court's finding of liability is affirmed.
32
Florelee has made a "false designation of origin" or "false description" within the meaning of the Lanham Act, and that falsehood will more probably than not damage Eden. Eden is therefore entitled to an injunction, see American Home Products v. Johnson & Johnson, 577 F.2d 160, 171 (2d Cir.1978), and to damages, if any, see Truck Equipment Service Co. v. Fruehauf Corp., 536 F.2d 1210, 1222-23 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976).
33
The judgment of the district court dismissing Eden's claim of copyright infringement is reversed and the copyright infringement aspects of the case are remanded for further proceedings consistent with this opinion. The judgment in favor of Eden on the Lanham Act claims is affirmed. Costs are assessed against defendant-appellee.
1
This discussion of the facts is based on the findings made by the district court on the record for summary judgment, which is wholly documentary, and on our own examination of that documentary record
2
The relevant portions of the 1975 Eden/Paddington exclusive licensing agreement are as follows:
"1. Grant of License
(a) Paddington hereby grants to Eden, for the term of this agreement and all renewals thereof, subject to the terms and conditions and for the territory hereinafter set forth [North America], the exclusive right and license to use the Michael Bond books, characters, names, copyrights and trademarks in the manufacture and sale of all Licensed Products in both Schedules B and C, and to license others to use the Michael Bond books, characters, names, copyrights and trademarks in the manufacture and sale of all Licensed Products listed in Schedule C alone, and in Eden's name, to copyright and trademark said Licensed Products and register the resultant copyrights and trademarks.
* * *
"7. Copyrights and Trademarks
(a) Legal title in and to all copyrights and trademarks derived from the creation, design and marketing of Licensed Products by Eden and its licensees, and all copyright and trademark registrations based thereon, shall be in Eden's name and owned by Eden for the duration of this agreement and all renewals and extensions thereof; equitable title shall at all times be in Paddington. Eden shall have the exclusive right and license, for the duration of this agreement and all renewals and extensions thereof, to use and license said copyrights and trademarks and registrations thereof, and Eden shall have the right in its own name or in Paddington's name or in the names of both, to sue for infringement of all such copyrights and trademarks and their respective registrations.
* * *
"9. Infringement
(a) In the event that Eden or its licensees shall be exposed to competition, direct or indirect, from infringers of the copyright or trademark rights which are licensed hereunder ... Paddington shall, at its option, take all necessary legal action to enjoin such infringement and protect Eden and its licensees.
(b) In the event of such infringement and Paddington's election to take no legal action ... Eden shall have the right, at its option:
(i) to institute appropriate legal action against the infringer....
* * *
"SCHEDULE B
Stuffed animals, also described as dolls, and puppets, all of various sizes.
"SCHEDULE C
1
Ready-to-wear sold in the children's division of department and specialty stores, including, without limitations, infants, babette, toddler, and 2-4 sizes for boys and girls; 4-7, 8-20, and 27-30 sizes for boys; and 3-6X, 7-14, pre-teen and junior sizes for girls
2
All accessories normally sold in the children's divisions of department and specialty stores
3
Infants, juvenile and youth domestics and textiles
4
Juvenile and youth furniture and accessories normally sold in the juvenile furniture department of department and specialty stores
5
Toys, games, crafts and other articles normally sold in the toy department of department stores, toy stores and specialty stores
Excluded from this Schedule are the items of Schedule B and:
a. Books
b. Tapes and Records
c. Stage Plays
d. Motion Pictures
e. Radio and Television Productions."
3
Eden apparently believed that a third basis for standing under the Copyright Act existed, namely authorization by the copyright holder of suit by a person other than an exclusive licensee. Clause 9 of the 1975 Eden/Paddington agreement, quoted supra note 2, contemplates such an arrangement. We do not believe that the Copyright Act permits holders of rights under copyrights to choose third parties to bring suits on their behalf. While F.R.Civ.P. 17(a) ordinarily permits the real party in interest to ratify a suit brought by another party, see Urrutia Aviation Enterprises v. B.B. Burson & Associates, Inc., 406 F.2d 769, 770 (5th Cir.1969); Clarkson Co. Ltd. v. Rockwell Int'l Corp., 441 F.Supp. 792 (N.D.Calif.1977), the Copyright Law is quite specific in stating that only the "owner of an exclusive right under a copyright" may bring suit. 17 U.S.C. Sec. 501(b) (Supp. IV 1980)
4
The complaint did not mention Eden's claim of copyright in the Ivor Wood sketches, although Eden's registration certificate for these drawings was produced during discovery. In a motion to re-argue, Eden requested leave to amend its complaint to add a cause of action for infringement of the Ivor Wood drawings. The district court denied this request
Although the registration of the Ivor Wood drawings does not appear to be disputed, we cannot at this stage treat it as proved since Florelee did not have an adequate opportunity below to challenge that registration. Cf. 6 J. Moore, Moore's Federal Practice Sec. 56.27, at 56-1557 to 56-1558 (1976). However, since Eden did seek to allege and prove this copyright, albeit belatedly, and since we reverse on grounds which recognize its materiality, substantial justice requires that Eden be permitted to amend its complaint to add a cause of action based on the copyrighted Ivor Wood drawings. Rule 15, F.R.Civ.P.
5
Title 17 U.S.C. Sec. 412 (Supp. IV 1980) provides:
"In any action under this title, other than an action instituted under section 411(b), no award of statutory damages or of attorney's fees, as provided by sections 504 and 505, shall be made for--
(1) any infringement of copyright in an unpublished work commenced before the effective date of its registration; or
(2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work."
6
The district court also suggested that Eden's grant of a sublicense to Gibson to produce gift wrap was in violation of the 1975 Eden/Paddington agreement, quoted supra at note 2, thus "tarnish[ing]" Eden's copyright in the derivative work and placing Eden "in the position of an infringer." It is true that if Eden did not have Paddington's consent to produce a derivative work based on Paddington's copyrighted illustrations, its derivative copyrights would be invalid, since the pre-existing illustrations used without permission would "tend[] to pervade the entire derivative work." 1 M. Nimmer, supra, Sec. 3.06, at 3-21 (1978), citing H.Rep. No. 94-1476, supra, at 57-58. However, the district court's conclusion that Eden's use of the pre-existing material copyrighted by Paddington was without permission appears mistaken. First, Paddington, the supposedly aggrieved party, has made no complaint about this alleged transgression. Indeed, Eden claims that Paddington supplied the Ivor Wood sketches to Eden for the very purpose of allowing Eden to prepare derivative works based on those sketches. Second, it appears that Paddington may have retroactively ratified Eden's licensing of gift wrap by its conduct and by the 1980 amendment to the Eden/Paddington agreement. Such a ratification is sufficient to insulate a holder of copyright in a derivative work from charges by an infringer of that copyright that the derivative work was created without the permission of the holder of the original copyright. See Ilyin v. Avon Publications, 144 F.Supp. 368, 373 (S.D.N.Y.1956); see also Gilliam v. American Broadcasting Co., 538 F.2d 14, 21-22 & n. 5 (2d Cir.1976) (noting possibility of ratification)
Finally, the 1975 agreement on its face authorized Eden to produce Paddington Bear gift wrap. That agreement gave Eden the exclusive right to produce, inter alia, "[a]ll accessories normally sold in the children's divisions of department and specialty stores." Although some Paddington gift wrap may be sold to customers in adult stores and departments, there can be little doubt that Paddington Bear gift wrap paper, clearly aimed at a juvenile audience, would "normally [be] sold in the children's divisions of department and specialty stores."
On this last ground alone, we reject as erroneous the district court's suggestion that Eden infringed Paddington's copyrights by producing the Eden/Gibson drawing. Since the district court made this finding entirely on the basis of documentary materials that we are equally competent to evaluate, we may reject it. Taylor v. Lombard, 606 F.2d 371, 372 (2d Cir.1979).
7
Of course, if Eden had an exclusive license at the relevant time to exploit Paddington's copyrights in the market in which Florelee was selling, Eden would be entitled by its exclusive license to sue Florelee for infringement of those copyrights. See the discussion infra of Eden's exclusive license claim
8
Should the district court find, contrary to our impression from the record, that Paddington and not Eden holds the copyright to the Ivor Wood sketches, Eden's claims as copyright owner would be restricted to the novel additions made by Gibson to the Ivor Wood sketches
9
On the present record, the evidence is mixed. Eden's president stated in a deposition that the 1980 agreement, which clearly opened up the adult clothing market to Eden, "formalized an understanding that [Eden] had been operating [under], for several years past, with regard to the breadth of the licensed product[s] covered by our agreement." App. 302a. Indeed, a telex from Paddington, submitted to the court after the summary judgment hearing and not yet made the subject of cross-examination by Florelee, constitutes the very sort of memorialization required here. However, in an affidavit Eden's president states that "[n]owhere in the complaint does plaintiff claim a license from Paddington and Company Limited to manufacture or to sublicense Paddington Bear garments for adults." App. 86a. If this statement raises a question of pleading, and the problem is only a formal one, it may be corrected by an amended pleading
10
Eden's complaint also sought relief under 17 U.S.C. Sec. 506, subsection (c) of which concerns fraudulent notices of copyright. Eden did not press this claim below; in any event, Sec. 506 is a criminal provision that does not appear to provide a private right of action | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/727635/ | 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.Edwin CRUZ, Defendant-Appellant.
No. 96-1893.
United States Court of Appeals, Seventh Circuit.
Submitted Sept. 16, 1996.*Decided Sept. 18, 1996.
Before WOOD, Jr., EASTERBROOK and KANNE, Circuit Judges.
Order
1
Sentencing is the only issue in this criminal appeal. Cruz pleaded guilty to conspiring to distribute cocaine and was sentenced to 80 months' imprisonment. One of his contentions--that the district judge erred in finding him ineligible for the "safety valve" provisions of 18 U.S.C. § 3553(f) and U.S.S.G. 5C1.2--is beside the point. The safety value rules permit a district judge to impose on qualifying offenders sentences below the statutory minimum, in order to come within the Guideline range for the offense in question. The statutory minimum for Cruz was 60 months' imprisonment; the Guideline range was above the statutory minimum, and by imposing a term of 80 months' imprisonment, the district court demonstrated that the statutory minimum did not affect the penalty. The only question actually before us on appeal, then, is whether the district judge accurately computed the Guideline range.
2
Cruz contends that he was entitled to a two or three level reduction for acceptance of responsibility. Our review is deferential. See United States v. Gomez, 24 F.3d 924 (7th Cir.1994). The district judge pointed out that pleading guilty does not automatically entitle a defendant to the reduction; there must be genuine acceptance of responsibility. U.S.S.G. § 3E1.1 Application Notes 1(a), 3. The district judge found genuine acceptance lacking here, because Cruz took payments from one co-defendant while in prison and thereafter falsely attempted to exculpate another of the co-defendants. The district judge was entitled to find that the statement provided to co-defendant Bonilla-Comacho was false. It was certainly inconsistent with much testimony at Bonilla-Comacho's trial (at which the district judge presided), and was indeed inconsistent with Cruz's own statements and plea of guilty. Other reasons also supported the judge's decision not to reduce Cruz's offense level for acceptance of responsibility; given the standard of review, see Koon v. United States, 116 S.Ct. 2035, 2046-48 (1996), the judgment must be
3
AFFIRMED.
*
After an examination of the briefs and the record, we have concluded that oral argument is unnecessary, and the appeal is submitted on the briefs and the record. See Fed.R.App.P. 34(a); Cir.R. 34(f). The oral argument scheduled for September 25, 1996, is cancelled | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2740679/ | An unpub|is
Sur=nsme Counr
oF
NEvAoA
cLERK's ORoER
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fO)~|947
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Pd order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
IN THE SUPREME COURT OF THE STATE OF NEVADA*
DARRYL L. JoNEs, NO. 65320
Appellant,
VS.
MBI, INC. D/B/A MBI X_RAY & § § L § §
MEDICAL SUPPLY; scoTT GRAHAM; _
NIPRo coRP.; sAUL ALVERS; BoARD ncr o 7 2014
OF PRISON COMMISSIONERS; MED.
DIR. NDOC DR. BRUCE R.
BANNISTER; DIR. NURSES SDCC
CHERYL DRESSLER; AND BRIAN
WILLIAMS, SR.,
Respondents.
ramos K. LzNoeMAN
B:LERK£F SUPREME COURT
oEPurv cLER
ORDER DISMISSING APPEAL
On August 11, 2014, this court entered an order denying
without prejudice, appellant’s motion to proceed in forma pauperis
Further, the order cautioned.appellant that his failure to properly seek
leave to proceed in forma pauperis in the district court or to pay the filing
fee would result in the dismissal of this appeal. To date, appellant has not
paid the filings fee or otherwise communicated with this court.
Accordingly, cause appearing, this appeal is dismissed.
lt is so O.RDERED.
CLERK oF THE SUPREME CoURi‘
TRACIE K. LINDEMAN
\
BY: QQ`,L LALL;{;§,§[§L§
Hon. Elissa F. Cadish, District Judge
Darryl L. Jones
Brown, Bonn & Friedman, LLP
Eighth District Court Clerk
CCI
___._.t_
l'-l'Z~BZ¢-)w | 01-03-2023 | 10-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1599471/ | 3 So. 3d 492 (2009)
Amy BROSSETT, et al.
v.
Melody HOWARD, et al.
No. 2009-C-0077.
Supreme Court of Louisiana.
March 6, 2009.
Denied. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599480/ | 3 So. 3d 351 (2008)
Carlos FLEITAS, Appellant,
v.
The STATE of Florida, Appellee.
No. 3D05-687.
District Court of Appeal of Florida, Third District.
December 31, 2008.
Rehearing Denied March 31, 2009.
*352 Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
Bill McCollum, Attorney General, and Claudine M. La France, Assistant Attorney General, for appellee.
Before RAMIREZ, WELLS, and LAGOA, JJ.
LAGOA, J.
After this Court reversed and remanded for a new trial in Fleitas v. State, 867 So. 2d 512 (Fla. 3d DCA 2004), the defendant, Carlos Fleitas ("Fleitas"), was tried and convicted for a second time on multiple counts of false imprisonment, lewd and lascivious molestation on a child, lewd and lascivious assault on a child, lewd and lascivious acts involving a child, and battery on a child with bodily fluids. Fleitas appeals from the judgment of conviction and sentence for these counts.[1] For the reasons set forth below, we affirm.
From 1997 to 2001, Fleitas lived with his girlfriend, Maria V., and her children, including the victim, A.V. Soon after Fleitas moved into their house in Homestead, Florida, A.V. and her siblings began to view Fleitas as a father figure. Their biological father, Luis V., had left their home but continued to live in Homestead. A.V. testified that, initially, she and her siblings liked Fleitas and approved of his relationship with their mother.
The first improper incident occurred when A.V. was ten years old. One afternoon, while A.V.'s mother was at work, Fleitas took A.V. and her sisters to a nearby lake. During a game of "tag," Fleitas carried A.V. toward a deep part of the lake. According to A.V., Fleitas then asked her "if I had ever seen a man's penis" and "started explaining to me things that a man's penis does and different things that happen to a man's penis and explaining to me the same way how milk would come out of women's breast it would come out of a man's penis and stuff." A.V. testified that at the time she did not know much regarding the topic, having never discussed the matter with her parents or at school. She informed Fleitas that she felt uncomfortable and wanted to go home. Upon returning home, Fleitas called her into his room, locked the door, and moved the television in front of the door. He then removed his towel and exposed himself to her. Next, he went to his closet and retrieved a box containing pornographic magazines. Fleitas told her to sit on his bed and flip *353 though one of the magazines while he masturbated. Fleitas then grabbed her hand and forced her to hold his penis. A.V. testified that after ejaculating on her legs, he tried to make her taste the ejaculate. She resisted by closing her mouth tightly. Fleitas then threatened to cut off her mother's hands, kill the rest of her family, and burn down the house if A.V. mentioned the incident to anyone.
The following day, while her mother was at work, Fleitas again summoned A.V. into his room, locked the door, and barricaded the door with the television. He then removed his pants, inserted the movie "White Men Can't Jump" into the VCR, and ordered A.V. to fast forward the movie to a sex scene. He told A.V. to rewind and replay the scene several times while he masturbated. A.V. testified that, again, Fleitas ejaculated onto her legs. According to A.V., Fleitas said that he wanted to "go inside of me" and "teach me how it is to be a woman." Fleitas also told her that he wanted to photograph her topless, having sex with his son. A.V. testified that after those initial incidents, no more similar episodes occurred until after the family moved to Hialeah, Florida.
A.V. testified that the first night in the new house, after everyone had retired for the night, Fleitas went into the bedroom that she shared with her younger sister. He began to massage her legs and feet and placed his hand over her underwear while he masturbated and ejaculated. A.V. testified that during the following two years, Fleitas made frequent visits to her bedroom in the early mornings. At one point, Fleitas removed a bar from the edge of the bed to gain better access to her legs and feet. A.V. testified that her sister never awoke during any of the incidents.
A.V. testified that Fleitas also exposed himself to her at other times, such as when she passed through his room to take out the garbage. In 2000, she began stacking boxes in front of her bedroom door and sleeping in multiple layers of jeans, sweaters, and bras, hoping to avoid contact with Fleitas. A.V.'s mother testified to being concerned about A.V.'s strange behavior, but she did not pursue the matter. A.V. testified that the incidents with Fleitas occurred routinely through January 2001.
During that time, A.V. and other members of her family witnessed several violent fights between Fleitas and A.V.'s mother. One such incident occurred when A.V.'s mother was pregnant with Fleitas's son. A.V. testified that she was unable to sleep many nights and her grades suffered. During cross-examination, she admitted that at the time she had a boyfriend. Fleitas did not approve of the boyfriend and restricted his access to the house. A.V. testified that one night she resisted Fleitas's advances and threatened to tell her mother what had happened during the previous three years. When Fleitas reiterated his threats to kill the family, A.V. responded that she did not care if she died and that Fleitas convinced her to remain silent.
In 2001, A.V.'s mother expelled Fleitas from their house. During a relative's birthday party, Fleitas and A.V.'s mother began to argue when Fleitas tried to discipline one of A.V.'s sisters. The argument escalated, and one of A.V.'s sisters unsuccessfully tried to call 911. Fleitas destroyed the phone before the police were contacted. A.V.'s mother then left the party with her children and drove to their house to secure the rent money before Fleitas returned. Fleitas moved out of their house that night. During the following three months, Fleitas made almost daily visits to the home. A.V. testified that in March, 2001, when she felt confident that her mother would not allow Fleitas to return, *354 she finally told her mother about the alleged abuse.
A.V.'s mother immediately confronted Fleitas and accused him of raping A.V. A.V.'s mother testified that Fleitas denied the rape accusations, stating that he merely touched A.V., and begged A.V.'s mother not to call the police. A.V. testified that she also asked her mother not to involve the police. A few days later, however, A.V.'s mother contacted the police. A.V. went to the Hialeah Police Department and gave a sworn statement to Detective Diaz. She also met with an Assistant State Attorney and provided another sworn statement. Fleitas was arrested on charges of and relating to child sexual molestation.
A.V. testified that in the days that followed she received daily calls from Fleitas's relatives asking her to recant her accusations. A.V. was also aware that her mother suffered financial difficulties and was unable to pay the utility bills on time. A.V. testified that she finally succumbed to the pressure and signed an affidavit recanting her story: "I thought that would have been great for everything just to be able to go away and for us just to be safe at home. I was willing to sign anything that was like that."
Protocol at Florida's Department of Children and Families ("DCF") requires DCF investigators to question children in recantation cases. A.V. reaffirmed her recantation to two DCF workers, Donald Machacon and Carolyn Cornelius. A.V. also denied the charges to her father, who subsequently told A.V.'s mother that if A.V. did not withdraw the recantation the State would place their children in foster care. A.V.'s mother then signed a statement stating that the State Attorney's Office threatened to take away her children if she did not cooperate with the prosecutor. At trial, A.V.'s mother admitted that the State Attorney's Office never made such threats and that she signed the false statement "because Luis [A.V.'s father] told me and I never knew it could be not true."
In May 2001, the trial court appointed attorney Richard Hersh as A.V.'s guardian ad litem. Hersh encouraged A.V. and A.V.'s mother to enter counseling at Kristi House, a nonprofit child sexual abuse support center endorsed by DCF. A.V. testified that the therapy sessions at Kristi House helped her gain the strength to confront the situation. She later told her father that the denials of the charges were false. Shortly thereafter, she formally withdrew her recantation and the case proceeded to trial.
On appeal, Fleitas contends that a new trial is warranted based on the trial testimony of Detective Diaz, which Fleitas argues impermissibly bolstered A.V.'s testimony.[2] The State argues that the testimony *355 Fleitas claims constitutes improper bolstering was either unobjected to or solely challenged by a general objection, and therefore was not properly preserved for appellate review. We agree.
It is well settled in Florida that to be preserved for appeal, "the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal." Rodriguez v. State, 609 So. 2d 493, 499 (Fla.1992). See also Chamberlain v. State, 881 So. 2d 1087, 1100 (Fla.2004); Spann v. State, 857 So. 2d 845, 852 (Fla.2003). Indeed, proper preservation requires the following three steps from a party: (1) a timely, contemporaneous objection; (2) a legal ground for the objection and; (3) "[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below." Harrell v. State, 894 So. 2d 935, 940 (Fla. 2005) (quoting Steinhorst v. State, 412 So. 2d 332, 338 (Fla.1982)). The purpose of this rule is to place the trial court on notice that an error may have been committed and therefore provide the trial court with an opportunity to rectify the error prior to any potential appellate review.[3]
*356 At trial, Fleitas failed to make a timely, contemporaneous objection when the State questioned Detective Diaz regarding A.V.'s prior statements to the police. Additionally, although Fleitas did object to the Detective's testimony regarding A.V.'s prior consistent statements to the State Attorney's Office, Fleitas failed to state the specific legal ground for the objection that he now raises on appeal, i.e., improper bolstering. We, therefore, find that Fleitas did not properly preserve this issue for appellate review. See Chamberlain, 881 So. 2d 1087 (finding that issue was not preserved even though defendant objected on general ground of hearsay, because defendant did not specifically object at trial that the tape was inadmissible as a prior consistent statement). We further note that Detective Diaz never testified as to the content or substance of the prior consistent statement, and we, therefore, question whether the testimony even implicates the doctrine of improper bolstering.
However, even if the issue had been preserved, we find Fleitas's argument without merit.[4] While prior consistent statements are generally inadmissible when used to bolster a witness's credibility, see, e.g., Taylor v. State, 855 So. 2d 1, 22 (Fla.2003); Bradley v. State, 787 So. 2d 732, 743 (Fla.2001); Van Gallon v. State, 50 So. 2d 882 (Fla.1951), such statements are admissible if they fall within a hearsay exception or are introduced to rehabilitate a witness or "to rebut an express or implied charge against the witness of improper influence, motive or recent fabrication." Gardner v. State, 480 So. 2d 91, 93 (Fla. 1985). See e.g., Griffith v. State, 762 So. 2d 1022, 1023 (Fla. 3d DCA 2000) ("The prior consistent statement was necessary to rehabilitate [the witness] after his impeachment by the defense and was a recognized exception to the hearsay rule."); Monday v. State, 792 So. 2d 1278, 1281 (Fla. 1st DCA 2001) (a prior consistent statement used to rehabilitate a witness who has been impeached may be admissible even in situations where the witness does not claim an exception to the hearsay rule). Because the record establishes that A.V.'s prior statements were introduced to rehabilitate A.V. from Fleitas's implied argument of "improper influence, motive or recent fabrication," we find that they were admissible.
Pursuant to section 90.801(2)(b), Florida Statutes (2007), a prior consistent statement is not hearsay if (1) "the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement" and (2) "the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication." (emphasis added).[5] Here, the State *357 met the first element of section 90.801(2)(b) because A.V., the declarant, testified at trial and was subject to cross-examination. See Harris v. State, 843 So. 2d 856, 862 (Fla.2003) (although the witness's prior consistent statement was introduced via testimony of a friend, the witness testified at trial and was subject to cross-examination).[6]
As to the second element, the prior consistent statements must have been made "before the existence of a fact said to indicate bias, interest, corruption, or other motive to falsify the prior consistent statement." Taylor, 855 So.2d at 23 (emphasis added). Fleitas argues that this second element has not been met. Specifically, in his reply brief, Fleitas argues for the first time that his defense was not one of recent fabrication or improper influence, but rather that A.V. lied from the onset when she made the allegation against Fleitas. The record, however, refutes this argument.
Indeed, Fleitas's main theory at trial focused on A.V.'s recantations and, in essence, that her multiple inconsistent stories made her testimony not credible. After her initial report, A.V. signed an affidavit explicitly recanting that initial report.[7] Subsequent to signing the affidavit, *358 A.V. withdrew the affidavit as a lie and testified at trial as to the veracity of the initial report. During cross-examination, Fleitas's counsel specifically questioned A.V. regarding the three, separate recantations she made during the course of the investigation.[8] A review of the record *359 establishes that throughout the trial, the defense attempted to persuade the jury that A.V.'s reaffirmation of the initial report was a result of improper influence and/or a recent fabrication.[9] The record establishes that defense counsel at trial both directly and indirectly implied that A.V. changed her recantation as a result of improper influence from the State, her mother, her father, and DCF.[10] We, *360 therefore, find that A.V.'s prior statement to Detective Diaz predated the alleged improper influence and/or recent fabrication, and were introduced to rebut Fleitas's contention that A.V.'s testimony was not worthy of belief.
These attempts to impeach A.V. show that Fleitas was suggesting, either expressly or impliedly, that A.V. had recently changed or fabricated her testimony. See Griffith, 762 So.2d at 1023 (trial court did not abuse its discretion when it admitted a prior consistent statement that served to rehabilitate the witness after defense impeached him with prior inconsistent statements from a pretrial deposition, thereby suggesting that that he had changed or fabricated his testimony). Moreover, by repeatedly suggesting to the jury that A.V. withdrew her recantations due to pressure from the State Attorney's Office to pursue the charges, Fleitas implied that A.V. had a recent motive to lie. See Smith v. State, 538 So. 2d 66, 68 (Fla. 1st DCA 1989) ("We find on the record an implied charge by Smith that the victim was improperly influenced by her mother and the state to bring charges against her father, and that this influence created in her a motive to lie."). We, therefore, conclude that the prior consistent statements were offered to rebut the charges of recent fabrication, improper influence and/or improper motive and, accordingly, were admissible.
We decline to address the remaining issues raised on appeal as we conclude that *361 they are without merit and/or are harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla.1986).
Accordingly, we affirm the final judgment of convictions and sentences.
Affirmed.
NOTES
[1] A judgment of acquittal was granted on counts 4, 7, 12 and 14, which involved battery with bodily fluids.
[2] Specifically, Fleitas objects to the following testimony elicited during Detective Diaz's direct examination:
Q: And in your opinion and experience would you say that she gave you a detailed description of what occurred?
A: A very detailed description.
Q: A very detailed description and again you interviewed over a thousand witnesses, correct?
A: Yes, unfortunately.
Q: Let me ask you this: What's the significance of a victim in this type of case giving you a detailed account as opposed to a general account?
A: Well, basically unfortunately something in the case, that's something she experienced, actually witnessed. You are talking about twelve, thirteen year old telling you such a graphic details. It's hard to believe that she just made up her mind to put these things
DEFENSE COUNSEL: Objection, Your Honor.
THE COURT: Sustained.
Q: Detective, there is [sic] two types of cases you deal with. There is [sic] sexual batteries and there is [sic] lewd and lascivious.
A: Correct.
Q: Could you say in your opinion that details are more important in this type of case that we are dealing with than a sexual battery case, for example?
A: Absolutely sex battery cases you got penetration, you got evidence that the Rape Treatment can testify. They can testify for assisting the victim. Molestation cases you got the rubbing and touching and which is not a lasting evidence. You need to rely more on the details that this young victim gives you.
Q: Now, the statement that she gave you during the preinterview compared to the statement that she gave you during the formal interview would you say that these statements were consistent?
DEFENSE COUNSEL: Objection.
THE COURT: Sustained.
Q: Were the statements she gave you consistent?
DEFENSE COUNSEL: Objection.
A: Yes.
THE COURT: Sustain the objection. Next question.
Q: Was "A" able to identify the person who sexually abused her?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
A: Yes.
Q: Who did she identify that person to be?
A: She identified as gentleman named Charlie, which is the boyfriend of her mom.
....
Q: Prior to meeting "A" do you have any personal knowledge of her meeting with another officer?
A: Night before uniform officers were dispatched to her home, yes.
Q: And in comparing what she told that officer and what she told you, were her statements consistent?
A: Yes, they were.
Q: Okay. After speaking to "A," did you have an opportunity to speak to her mom, [M.V.]?
A: Yes.
Q: And soon after meeting with them and obtaining all the information that you needed, was there eventually an arrest of the defendant in this case?
A: Yes.
Q: After the defendant was arrested did you learn that "A" met with the State Attorney's Office and provided a sworn statement also and a pre-file conference?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
A: Yes.
Q: You have any personnel [sic] knowledge of that meeting being consistent with conversations you had had with her?
DEFENSE COUNSEL: Objection.
THE COURT: Overruled.
A: Yes, the file. The charges were filed.
[3] The sole exception to the contemporaneous objection rule is fundamental error. Unpreserved issues may constitute grounds for reversal under the fundamental error doctrine. See § 924.051(3), Fla. Stat. (2007). The fundamental error doctrine, however, is applied only rarely. Harrell, 894 So.2d at 941. An error need not be preserved if it "reaches to the foundation of the case and is equal to a denial of due process." Williams v. State, 892 So. 2d 1185, 1187 (Fla. 5th DCA 2005). See also F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003); State v. Johnson, 616 So. 2d 1, 3 (Fla. 1993). Indeed, "[t]o be fundamental, an error must `reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.'" Harrell, 894 So.2d at 941 (quoting Brown v. State, 124 So. 2d 481, 484 (Fla.1960)). Based on our review of the record, we cannot find that the testimony of Detective Diaz demands application of the fundamental error doctrine.
[4] The admissibility of evidence by a trial court will not be disturbed on appeal absent an abuse of discretion. Johnston v. State, 863 So. 2d 271, 278 (Fla.2003).
[5] We note that the State under section 90.801(2)(b) is not required to show both improper influence and recent fabrication. Section 90.801(2)(b) provides for the admissibility of a prior consistent statement upon a showing of either circumstance.
[6] In his reply brief, Fleitas contends that "neither the contents of [A.V.'s] prior statements nor their consistency were the subject of direct examination." We find this contention without merit. A review of the record shows that A.V.'s prior statements as well as the facts that led her to make those statements were the subject of lengthy examination. Moreover, during A.V.'s direct examination the following exchange occurred regarding her prior statements to Detective Diaz:
Q: Did the City of Hialeah Police Department respond to the house?
A: Yes.
Q: Did you end up speaking with a woman police officer in the back of the house initially?
A: Yes.
Q: The following day did you go down to the Hialeah Police Department and speak with a detective who had been assigned to the case?
A: Yes.
Q: Was that Detective Ray Diaz?
A: Yes.
Q: And did you spend time recounting for him what we had just been talking about the last couple of hours to him?
A: Yes.
Q: Once you reviewed everything with him one time though [sic], did there come a time when he had you raise your right hand and take a sworn statement from you?
A: Yes.
Q: In the sworn statement you told him again everything that had been going on?
A: Yes.
Q: After that did your mom bring you down to the State Attorney's Office to meet with an assistant state attorney to get the case filed?
A: Yes.
Q: During that meetingduring that meeting did you raise your right hand and give sworn testimony to that prosecutor to get the case filed?
A: Yes.
Q: Did you recount for her as you did for Detective Diaz what had been going on for the last three years?
A: Yes.
[7] On direct examination, A.V. testified as to the contents of the affidavit and whether anyone pressured her to withdraw the affidavit. Specifically, A.V. testified as follows:
Q: [G]o ahead and read it aloud.
A: It says I am alleged victim. I have not been pressured or coerced to sign this statement. I have not had sexual contact of any kind with Carlos Fleitas, the defendant at any time. I was upset with Carlos and made false accusation against him. I am telling the truth in this statement. I do not wish to speak to the police or state attorney regarding this case because they have the right to arrest if I say I did not have sex with Carlos. Sworn and subscribed before me this day of
Q: Did the police or State Attorney's Office threaten you that they were going to arrest you if you did not cooperate?
A: No.
Q: Did the State Attorney's Office ever threaten they were going to arrest your mother or father, anybody if there was no cooperation in this case?
A: No.
Q: Is what's contained in that affidavit the truth or a lie?
A: A lie.
Q: Was that lie said because you just wanted this nightmare to be over with?
A: Yes.
[8] Specifically, the following exchange occurred during A.V.'s cross-examination:
Q. Now, on one occasion yesterday you testified about an affidavit that you signed onto; is that correct?
A. Yes.
Q: And at that time you signed an affidavit that stated that nothing had happened with Mr. Fleitas and that you had made it up; is that correct?
A: Yes.
....
Q: There aren't any fancy words in this document, right?
A: No.
Q: You knew all the words in this document? You know the vocabulary; is that correct?
A: Well, now I do. I guess at the time there was couple but
Q: Hard words in here?
A: Well, I didn't know what affidavit meant and stuff.
Q: But you knew you were signing a paper?
A: Yes.
Q: And you knew that you were signing a paper because you stated in this paper that what you were saying about him were lies?
A: I was signing a paper that was going to make everything go away.
....
Q: Now, subsequent to this affidavit did you have an opportunity to meet with HRS or DCF Investigators?
A: Yes.
Q: Do you know what a DCF Investigator is?
A: Yes.
Q: What is it?
A: The people who investigate the cases for HRS.
....
Q: And did those HRS Investigators talking first about Miss Cornelius, do you remember Miss Cornelius?
A: Yes
....
Q: She works with kids all day long?
A: Right.
Q: And she let you know that?
A: Yes.
Q: After she let you know, I work with kids all day long, what did you say?
A: I told her that wasn't true....
Q: What was not true?
A: What I had said that had happened.
Q: With Carlos?
A: Right.
Q: When did you meet Richard Hersh?
A: Later on in that time period.
Q: Did you meet Mr. Machacon, Donald Machacon before you met Mr. Hersh?
A: I don't remember what order it came.
....
Q: And he went to your school?
A: Yes.
Q: And at that school did you tell him anything about the allegations that you made about Mr. Fleitas?
A: Yes.
Q: What did you tell Donald Machacon at the school?
A: That they weren't true.
Q: Did you tell him why you had said it?
A: Yes.
Q: Why did you say the lie in the first place?
A: I don't remember why it was. I think I said because he didn't treat my mom right.
Q: Okay. And you didn't want him coming home anymore, right?
A: I don't remember.
Q: You were afraid he would come home?
A: I don't remember, but I think it was that he didn't treat my mom right.
Q: Now, when you said this to Donald Machacon were you in fear of being hurt?
A: No.
Q: There was no reason to be in fear; is that right?
A: Right. But everything else that was going on is what lead [sic] to my decision to saying what I did.
Q: And everything that was going on began after you spoke with Mr. Hersh; is that correct?
A: No.
Q: Mr. Hersh came to your house?
A: Yes.
Q: And Mr. Hersh warned your mother in front of you that if you retracted she could loose [sic] the children, didn't he say that?
A: No. Everything that was going on in my house had nothing to do with any of the lawyers or anything to do with anything like that. Electricity and emotions and feelings and everything that was going on had nothing to do with the legalness of the case or anything.
Q: When you were talking to Donald Machacon was anybody else present?
A: I don't remember.
Q: Was there a school counselor?
A: I don't remember.
Q: Was it in the school counselor's office?
A: Yes.
Q: Your mom was not there?
A: I don't remember. I don't think so.
Q: Your father was not there?
A: No.
Q: Anyone from Mr. Fleitas' family was there?
A: No.
Q: It was just you, Mr. Machacon, and probably a counselor, you don't remember that part?
A: Right.
Q: Now, when you denied it one time with Miss Cornelius, the first time that you denied it you were in your house; isn't that correct?
A: Yes.
[9] In opening, defense counsel stated as follows:
The evidence will show that once [A.V.'s mother] has met with the various counselors, the prosecutor's office, and Mr. Hersh she comes to the realization that if she doesn't continue this prosecution, even if it is a charade she will loose [sic] all her children. Now, little "A" is now faced with a problem that her mother will lose all of her children if she maintains that what she has alleged against Mr. Fleitas is a lie. She maintained that it was a lie when she provided an affidavit at an attorney's office. She maintained that it was a lie at least twice to HRS workers. One is Mrs. Cornelius and the other one is Mr. Machacon. Mr. Machacon interviewed her at the school away from the mother, away from the father, and in the presence of the guidance counselor only and at that point the child stated what I said was a lie. I only wanted to make sure he wouldn't come back home because I didn't want him there.
In closing argument, defense counsel again implied that A.V. was influenced by the State and her mother to withdraw her recantations:
During Maria [V.'s] testimony we began to sense the pressure that is being placed. The allegations by the Fleitas family and submit to you it's by the State Attorney's Office. Let's compare the kind of pressure we are dealing with here. Visits by an elderly lady, visits by family providing rides. Helping get a lawyer. Those are the assistance being offered by the Fleitas family. What is Maria [V.] seeing on the other end. Threats of her children being taken away. Threats that are made surreptitiously through her former husband. A guardian ad litem is appointed on the case and he shows up at her house and as he states I make sure and with no uncertain terms I wanted to make sure that she knew she had to take this child to counseling. Where was the counseling. At the Kristi Office. Where is the Kristi Office according to [A.V.], it's the same place where their office is. Is this independent counseling? Is this private counseling?
[10] Specifically, during closing, the defense argued the following to the jury:
Carlos is not coming back home. She doesn't want him coming back and she admitted that. She admitted that not to someone that the Fleitas family went out and hired, not to Mr. Marcus, not to anybody else. She went out and she admitted that to DCF workers. State of Florida employees whose only interest is to protect children. They go out and interview. She gives them consistent statements recanting that she has made up these allegations against Carlos. That inconsistency in the testimony is enough for you to come back with a not guilty verdict as to all three charges. You say well the prosecution has rehabilitated her. The prosecution has made her come back and be a witness here in the case. Let's analyze how it was that the prosecution got her to come back and be a witness in the case. She came back and became a witness in the case when her father contacted her at school and took her outside and hugged her and kissed her for the first time like in five years according to him. At that point Miss A.V. changes her testimony. Right or wrong. Wrong. That is what the prosecution offered happened through Mr. Luis [V.]. That never happened. Mr. [V.] testifies and during cross examination read the dates. Oh, yeah, maybe eleven is on the affidavit that "A" signed.... He says, oh yeah, May 11th is crossed out and it says May 17th. May 17th is the day before he speaks to a state attorney. Now, let's see how this gentleman spoke with the state attorney and how we learned that he spoke with a state attorney. He got a call he said.... He doesn't want to admit that it's the prosecutor that's calling him. I had to go back and bait him through a series of questions, including giving him a multiple choice question who called you "A" the state attorney, "B" Department of Children and Families or "C" the police. After thinking it over for a while and not wanting to give and [sic] answer .... [h]e goes over and he looks at their bench and he said the state attorney and he put his head down.
....
In this case this child has given inconsistent statements with the testimony provided in court. Each inconsistent statement is grounds for you to find reasonable doubt and to come back with a verdict of not guilty is your duty.
....
The testimony that she gave which was inconsistent is that now she alleges that this gentleman did certain things with her, which were inappropriate and previous to that she gave inconsistent statements to one, the person that provided the affidavit, to the persons that work for DCF.
....
When you have a recantation, when you have that type of inconsistent testimony and inconsistent statement that is an obligation upon you as jurors to determine whether that is a reasonable doubt and if that does create a reasonable doubt, you must come back with a not guilty verdict. You must come back with a not guilty verdict on each count. She recanted on each and every allegation read to her. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599497/ | 3 So. 3d 330 (2009)
SERMON
v.
STATE.
No. 2D07-5693.
District Court of Appeal of Florida, Second District.
February 6, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599406/ | 729 So.2d 264 (1998)
Fob JAMES et al.
v.
Dorothy Alice McKINNEY and the Alabama State Employees Association.
Walter Stevenson
v.
Fob James et al.
Nos. 1961410 and 1961639.
Supreme Court of Alabama.
November 20, 1998.
Rehearing Denied January 15, 1999.
*265 William P. Gray, Jr., legal advisor to the Governor; Robin G. Laurie, deputy atty. gen.; and Martin E. Burke of Balch & Bingham, L.L.P., Montgomery, for appellants/cross appellees Fob James et al.
James Allen Main of Beasley, Wilson, Allen, Main & Crow, P.C., Montgomery; and Mark J. Williams and Linda Baker Allen, Alabama State Employees Association, Montgomery, for appellees Dorothy Alice McKinney and the Alabama State Employees Association.
KENNEDY, Justice.
These appeals concern the employment status of the "division chief" position within the Alabama Department of Economic and Community Affairs (hereinafter "ADECA") and the preclusive effect of a settlement among then Governor Jim Folsom, his personnel director, and the Alabama State Employees Association (hereinafter "ASEA").
In 1991, during Governor Guy Hunt's administration, Dorothy Alice McKinney, an employee at ADECA, was removed from her position as administrative division chief of ADECA and was assigned to another position. McKinney and the ASEA sued ADCA; the ADECA director; and Governor Hunt, requesting a judgment declaring that the position of division chief is a merit system position and an injunction requiring ADECA to staff the division chief positions with merit system employees and to reinstate McKinney to her position.
The litigation continued until 1993, when Governor Jim Folsom, the state personnel director,[1] the ADECA director, Ms. McKinney, and the ASEA entered into a settlement agreement. The settlement provided that as of October 1, 1996, the ADECA division chief positions would be merit system positions. On June 8, 1993, Judge Joseph Phelps dismissed the case with prejudice.
In September 1996, shortly before the merit system classification was to take effect, Governor Fob James and the current ADCA division chiefs sued, arguing that the settlement was not valid. McKinney and the ASEA moved to dismiss the lawsuit, arguing that the current division chiefs, who are not merit system employees, have no property interest in their positions and, therefore, no standing to bring this action. They also argued that the settlement entered into three years earlier was binding and not subject to collateral attack.
The trial court granted the motion to dismiss. In its dismissal order it wrote:
"The Court having considered all the pleadings herein, having considered the briefs in support thereof, having heard oral arguments on three different occasions, and having considered the time elapsing from the date of the settlement agreement of June 8, 1993 until the filing of the complaint of September 17, 1996, is of the opinion that the complaint filed approximately 39 months subsequent to the execution of the settlement agreement and entry of order of dismissal with prejudice of both the State and Federal lawsuits, is due to be dismissed on the grounds set out in the motion to dismiss as well as in the interest of finality. The Court in dismissing this action does so consistent with its previous reasoning in a factually similar case wherein Rule 60(b), Ala.R.Civ.P., was evoked rather than a new complaint filed, Dressler v. Bressler, 676 So.2d 1357 (Ala.1995) (table). In Dressler the Court found that `the settlement agreement and the resulting dismissal with prejudice of this cause was achieved by the parties now before the Court with counsel attendant at that time, and that the Court must balance a desire to achieve justice against the interest of the litigants in the finality of the judgment.' The finality principle is equally applicable in this case. It is, therefore for all the reasons recited herein;
"ORDERED, ADJUDGED, AND DECREED by the Court that the motion to *266 dismiss the complaint should be and [it] is hereby granted and this action dismissed."
The civil service system of the state is divided by statute into the classified service, the unclassified service, and the exempt service. "Classified" civil servants attain their employment through a merit system based primarily on competitive examination. The purpose of making certain state employees subject to the merit system is to prevent discrimination in the employment, promotion, and discharge of public employees. Heck v. Hall, 238 Ala. 274, 190 So. 280 (1939). "Unclassified" and "exempt" civil servants are not subject to such examinations, and they serve at the pleasure of their appointing or electing authority. Generally those in the exempt service or the unclassified service are elected officials, officials chosen based on political patronage, and confidential employees.
The Governor and the current division chiefs argue that the language of the ADCA statute and the Merit System Act is ambiguous as to whether the position of division chief is a classified, an exempt, or an unclassified position. However, they conclude that the legislature intended for the division chiefs to be unclassified and not subject to the merit system. They argue that since the creation of ADECA, the division chiefs have been considered by ADECA officials to be in the unclassified service or the exempt service. They further argue that the settlement agreement purporting to place ADECA division chiefs in the classified service was illegal and, therefore, not binding.
We agree that the ADECA statute does not specifically place the division chiefs in either the exempt service or the "unclassified" service category, and we cannot say that the legislature intended for the division chiefs not to be subject to the merit system.
The legislature created ADECA in 1983, combining the following existing agencies and programs: the Office of State Planning and Federal Programs; the Alabama Department of Energy, the Alabama Law Enforcement Planning Agency; the Office of Highway and Traffic Safety; and the Office of Employment and Training. See § 41-23-2, Ala.Code 1975. Nowhere in the statute did the legislature specifically place division chiefs in either the exempt or the unclassified service. It is apparent that employees necessary to implement the duties of ADECA are subject to the merit system. § 41-23-2.
Section 36-26-10(b), a part of the Merit System Act, defines those officers in the exempt service. Section 36-26-10(c) defines those positions in the unclassified service. Section 36-26-10(d) states: "The classified service shall include all other officers and positions in the state service." In the definitional section of the Act, § 36-26-2, the "classified service" is defined as: "All offices or positions of trust or employment in the state service now or hereafter created except those placed in the unclassified service or exempt service by this article." Because the division chiefs were not placed in the exempt service or the unclassified service, the provisions of the Merit System Act compel us to conclude that the division chiefs are classified employees. Wyatt v. Bronner, 500 F.Supp. 817 (M.D.Ala.1980).
In Wyatt, the plaintiffs, one of whom was the deputy director, were employed by the Alabama Building Commission. From the outset of their employment, the plaintiffs were regarded as "unclassified" employees of the Commission. In fact, since 1945, the plaintiffs and the predecessors in their positions had been appointed and had worked outside the requirements of the merit system's hiring and firing procedures. Following their termination, the plaintiffs sued, alleging that they were "classified" employees under the Merit System Act and were entitled to the procedural protection afforded by the Fourteenth Amendment to the United States Constitution. The federal court held that nothing in the Merit System Act or in the act creating the Commission placed the plaintiffs in the unclassified or the exempt service. Therefore, the court held, based on § 36-26-10(d), the plaintiffs were classified employees and were therefore entitled to the type of hearing required by the Fourteenth Amendment. We agree with the federal district court's interpretation of Alabama law.
In Vaughn v. Shannon, 758 F.2d 1535 (11th Cir.1985), the United States Court of Appeals for the Eleventh Circuit held that *267 the plaintiff's job was exempt from the Merit System Act. The plaintiff, an employee of the Department of Mental Health, had relied on Wyatt in arguing that his position was "classified" and thus subject to the merit system. The plaintiff lost. The legislature, in creating the Department of Mental Health, had, by § 22-50-41, specifically left to the director of the Department the authority to determine which employee positions would be included in the merit system. Vaughn is easily distinguishable from this present case, because the legislature did not authorize the ADECA director to determine which employee positions at ADECA were subject to the merit system. Instead, the legislature made the employees of ADECA subject to the merit system.
The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature. Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985). When interpreting a statute, we must consider it as a whole and must construe it reasonably so as to harmonize all of its provisions. McRae v. Security Pacific Housing Services, Inc., 628 So.2d 429 (Ala.1993). In determining legislative intent, a court should examine related statutes. Dunn v. Alabama State University Bd. of Trustees, 628 So.2d 519 (Ala. 1993).
The nature of the responsibilities of an ADECA division chief also leads us to conclude that the legislature intended for the position to be in the classified service. The legislature created a merit system to protect certain civil servants from being dismissed as a result of their political affiliation every time a new administration was elected. Certain other positions, as to which confidentiality or political loyalty is necessary to the continued efficiency of the office, are not subject to the merit system. However, a division chief is not a policy-maker, nor is a division chiefs political affiliation necessary for continued efficiency in the job. Cf. Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S.Ct. 2729, 111 L.Ed.2d 52 (1990); Branti v. Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980); Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).
An ADECA division chief is under the supervision of, and reports directly to, the director of ADECA. The division chief is not a policy-maker but, rather, implements goals and policies set by the director. Moreover, the promulgation of rules and regulations for ADECA is left solely to the director, not a division chief. § 41-23-6.
Accordingly, we conclude that the legislature intended that the ADECA division chiefs be subject to the merit system and that the settlement agreement to that effect is binding on the parties.
AFFIRMED.
ALMON and SHORES, JJ., concur.
HOUSTON and COOK, JJ., concur in the result.
HOOPER, C.J., and MADDOX and SEE, JJ., concur in part as to the rationale and dissent from the judgment.
LYONS, J., recuses himself.
HOOPER, Chief Justice (concurring in part as to the rationale and dissenting from the judgment).
I concur with Justice See. I add to his comments the observation that this judicial body is the highest judicial body of this State and that all its members have taken an oath to uphold the laws of our state. It is fundamental to a democratic society that the people's duly elected representatives enact the laws. The pivotal issue for this Court to determine is whether we will permit any Governor to undermine the laws, either by consenting to a judgment or by using any other means of changing the law that is outside the democratic processes of this State. I cannot, and will not, agree to such an undermining of the law. Clearly, the ADECA division chiefs are "unclassified" merit-system employees. To reach any other holding would appear to be contrary to the oath taken by the members of this judicial body. Such a result by-passes the lawful democratic processes of this State. Therefore, I concur with Justice See, and I reemphasize the duty of this Court to uphold the laws of this State and to maintain the integrity *268 upon which this judicial system is grounded.
SEE, Justice (concurring in part as to the rationale and dissenting from the judgment).
Although I concur with the portion of the main opinion's rationale that concludes that division chiefs of the Alabama Department of Economic and Community Affairs ("ADCA") are not "exempt" employees, I must respectfully dissent from the main opinion's conclusion that the division chiefs are "classified" merit-system employees. The Legislature has plainly provided that they are "unclassified" merit-system employees. Further, I conclude that no private settlement agreement can change a classification provided by statute.
I. The Statutory Framework
The Legislature has divided state employment positions into three categories: (1) exempt positions; (2) unclassified merit-system positions; and (3) classified merit-system positions. "Exempt" employees or officers are generally not subject to the pay-scale, promotion, and other rules applicable to meritsystem employees. Exempt employees include:
"(1) Officers elected by the vote of the people.
"(2) Officers and employees of the legislature.
"(3) All employees of a district attorney's office.
"(4) Members of boards and commissions, whether appointed or self-perpetuating, and heads of departments required by law to be appointed by the governor or by boards or commissions with the approval of the governor."
Ala.Code 1975, § 36-26-10(b) (emphasis added.) ADECA division chiefs are not exempt employees, because they are heads of "divisions," not "departments," and they are appointed by the "director of [the] department, with the approval of the governor," not by the Governor or by a board or commission. See Ala.Code 1975, § 41-23-5(a) ("All chiefs of divisions shall be appointed by the director of [ADECA], with the approval of the governor."). In addition, § 41-23-2 provides that ADECA employees shall be "subject to the provisions of the state merit system laws." Thus, ADECA division chiefs are not exempt from the merit system, but are either "classified" or "unclassified" merit-system employees.
Unclassified merit-system employees are subject to all merit-system rules except for the protections concerning "appointment and dismissal." Ala.Code 1975, § 36-26-10(f). "Unclassified" employees include "[a]ll employees of the governor's office not exempted." Ala.Code 1975, § 36-26-10(c)(2). "Classified" employees are subject to all of the pay-scale, promotion, appointment, and termination rules of the State. "Classified" employees include "all other officers and positions in the state service." Ala.Code 1975, § 36-26-10(d) (emphasis added).
Section 41-23-1 states that ADECA is "within the office of the governor and directly under his supervision and control." Accordingly, ADECA's division chiefs are "employees of the governor's office" and are "not exempted." Thus, under § 36-26-10(c)(2), ADECA's division chiefs are clearly "unclassified" merit-system employees.
The main opinion cites Wyatt v. Bronner, 500 F.Supp. 817 (M.D.Ala.1980), for the proposition that the plaintiff employees of the Alabama Building Commission were classified merit-system employees because "nothing in the Merit System Act or in the act creating the Alabama Building Commission placed the plaintiffs in the unclassified or the exempt service." 729 So.2d at 266. Despite the Alabama Building Commission's private listing of the employees on its payroll register as "exempt," the United States District Court for the Middle District of Alabama followed the statutory definitions in the Merit System Act and held that the plaintiffs were "classified" employees. Wyatt, 500 F.Supp. at 819-20. I agree.
Unlike the act creating the Alabama Building Commission, the act creating ADECA expressly provides that ADECA employees, who are not exempt, are "within the office of the governor and directly under his supervision and control." Ala.Code 1975, § 41-23-1. Further, the Merit System Act expressly provides that "employees of the governor's *269 office not exempted" are "unclassified" employees. Ala.Code 1975, § 36-26-10(c)(2). We must, of course, assume that the Legislature was aware of the Merit System Act's definitions of "exempt," "classified," and "unclassified" employees when it created ADCA and provided that ADECA's employees would be covered by the merit system. See Bedingfield v. Jefferson County, 527 So.2d 1270, 1272 (Ala.1988) ("It is a fundamental principle that the legislature, in enacting a statute, is presumed to have full knowledge and information on prior and existing law on the subject of the statute."); Ala.Code 1975, § 41-23-2 (providing that "employees necessary to implement the duties and functions of [ADECA] may be employed subject to the provisions of the state merit system laws and shall be entitled to the same rights and benefits thereunder"). Therefore, this Court should apply the Merit System Act and conclude that the ADECA division chiefs are unclassified merit-system employees.
Had the Legislature intended to specify that ADECA employees would be "classified" employees, it could have done so. It did not. See Ala.Code 1975, § 41-23-2. Had the Legislature intended to amend the definition of "unclassified" and "classified" employees to treat employees such as ADECA division chiefs as "classified" employees, it could have done so. It did not. See Ala.Code 1975, § 36-26-10. Nor should this Court, whose function is to interpret law, amend the Merit System Act by creating a judicial exception to it.[2]
II. The Settlement Agreement
The main opinion states that "the settlement agreement [between the former Governor and the plaintiffs] ... is binding on the parties" to the extent it is consistent with the Merit System Act. 729 So.2d 267. As I have demonstrated above, however, the settlement agreement is not consistent with the Merit System Act and, thus, cannot bind the State. Settlement agreements by state officers obligate state assets and state employees that are generally governed by Alabama law. To the extent such a private settlement agreement obligates state assets and employees in a manner inconsistent with state law, that agreement should be held invalid. See, e.g., Opinion of the Justices, 251 Ala. 91, 36 So.2d 475 (1948) (stating that a lease agreement obligating the State to pay moneys for more than one year was void because the agreement would conflict with § 213 of the Constitution of Alabama of 1901, which prohibits state debts); Stokes v. Moore, 262 Ala. 59, 64, 77 So.2d 331, 335 (1955) (holding that a contract calling for the issuance of an injunction if certain future events occur was invalid because it required the issuance of the injunction even if to issue an injunction would have been contrary to the opinion of the court).
As the main opinion points out, the United States Court of Appeals for the Eleventh Circuit held, in Vaughn v. Shannon, 758 F.2d 1535 (11th Cir.1985), that the director of the Alabama Department of Mental Health could determine whether employees of that Department were merit-system employees. Section 22-50-41 expressly provides that "[p]ersonnel policies may be established so as to include under the state merit system certain positions in the Department of Mental Health." The Eleventh Circuit determined that the Department of Mental Health had acted pursuant to the statute by internally providing that the plaintiffs were exempt employees. Vaughn, 758 F.2d at 1537.
Unlike the act that created the Department of Mental Health, the act that created ADECA does not delegate to the director of ADECA the power to determine the meritsystem classification of employees. Instead, it commands that employees hired by ADCA be employed "subject to the provisions of the state merit system laws." Ala.Code 1975, § 41-23-2.[3] The "state merit system *270 laws" clearly provide that ADECA division chiefs, who are in the Governor's office and who are not exempt department heads, are "unclassified" employees. See Ala.Code 1975, § 36-26-10(c)(2) (stating that "employees of the governor's office not exempted" are "unclassified" employees); Ala.Code 1975, § 41-23-1 (stating that ADECA is "within the office of the governor"); Ala. Code 1975, § 36-26-10(b) (stating that "exempt" employees include "heads of departments," not heads of "divisions"); Ala.Code 1975, § 41-23-5(a) (stating that ADECA division chiefs head "divisions," not "departments"). The Legislature, had it chosen to delegate the power to determine merit-system classification by private settlement agreement or otherwise, could have done so. See Ala.Code 1975, § 22-50-41 (delegating to the Department of Mental Health the power to determine the merit-system status of employees of that Department).[4] It did not.
Although the result for which the plaintiffs argue is not unreasonable, the method by which this result would be accomplished would endanger the constitutionally mandated process for making law. A private settlement agreement cannot displace statutes duly enacted by the Legislature. The concept of government by private agreement is wholly incompatible with our Constitution, which provides that the Legislature, to make law, must duly enact a bill and submit it to the Governor. Ala. Const.1901, § 61 ("No law shall be passed except by bill ...."); id. at § 125 ("Every bill which shall have passed both houses of the legislature ... shall be presented to the governor...."). To hold otherwise would invite the danger that men could enter into collusive settlement agreements for the purpose of draining the State's treasury, restricting the Governor's appointment power, or changing the composition of this Court. The Framers of our Constitution wisely preempted this possibility by dividing the legislative, executive, and judicial powers so that we may have "a government of laws and not of men." Ala. Const.1901, § 43.
HOOPER, C.J., and MADDOX, J., concur.
NOTES
[1] The state personnel director had intervened as a plaintiff.
[2] As Alexander Hamilton cautioned:
"The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would be the substitution of their pleasure to that of the legislative body."
The Federalist No. 78, at 469 (Alexander Hamilton) (Clinton Rossiter ed., 1961).
[3] Ala.Code 1975, § 41-23-6, provides that "[t]he director of [ADECA] may prescribe ... reasonable rules and regulations for the conduct of its business." This provision does not purport to delegate to the director of ADECA the power to classify employees under the merit system.
[4] I note that Ala.Code 1975, § 36-26-10(e), provides:
"Except as to services denominated as exempt or unclassified services in subsections (b) and (c) of this section, the governor shall have the power by executive order to extend the provisions of this article to include additional positions or classes of positions."
Because § 36-26-10(c)(2) plainly provides that ADECA division chiefs are "unclassified" employees, they are not subject to an extension of the Merit System Act by executive order. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922293/ | 756 A.2d 639 (2000)
333 N.J. Super. 592
Bryan GRUBB, Plaintiff,
v.
BOROUGH OF HIGHTSTOWN, Defendant.
Superior Court of New Jersey, Law Division, Mercer County.
Decided April 28, 2000.
*640 Deirdre K. Hartman, Moorestown, for Plaintiff (Attorneys Hartman, Chartered, attorneys).
Steven P. Goodell, Princeton, for Hightstown Borough Police Chief Kevin Hopkins (Herbert, Van Ness, Cayci & Goodell, attorneys).
FEINBERG, A.J.S.C.
I.
The issue presented in this case deals with the interpretation of a portion of N.J.S.A. 40A:14-147, "Suspension and removal of members and officers; complaint; limitation on filing; notice of hearing." The statute, amended in 1996, in pertinent part provides "the law enforcement officer may waive the right to a hearing and may appeal the charges directly to any available authority specified by law or regulation, or follow any other procedure recognized by a contract, as permitted by law." Amended by L.1996, c. 115 Section 2, eff. Jan. 9, 1997. In the case at bar, the law enforcement officer contends that he may waive the right to a hearing at the municipal level and appeal the charges directly to the Superior Court. Based on the following analysis, the court finds that N.J.S.A. 40A:14-147 does not provide for such a mechanism.
The facts and procedural history are undisputed. Plaintiff Bryan Grubb was suspended as a police officer in the Borough of Hightstown for allegedly violating police departmental regulations. These disciplinary charges stem from the same facts and circumstances that gave rise to a criminal investigation in 1995. In 1995, while a Hightstown Borough police officer, Grubb was arrested and charged with conspiracy to possess a CDS, possession of a CDS and official misconduct. On May 8, 1997, following a jury trial, Grubb was convicted of those offenses. On March 19, 1999, the Appellate Division reversed Grubb's conviction and vacated the conviction. State v. Grubb, 319 N.J.Super. 407, 725 A.2d 707 (App.Div.1999). On July 8, 1999, the Supreme Court denied the State's petition for certification. State v. Grubb, 161 N.J. 333, 736 A.2d 526 (1999).
On or about August 19, 1999, Hightstown Borough Police Chief Kevin Hopkins filed the present disciplinary charges against Grubb. The departmental disciplinary proceedings commenced before the Mayor and Borough Council on September 21, 1999. At the outset, counsel for Grubb filed a motion to dismiss the disciplinary charges based on the Borough's failure to comply with the notice requirements set forth in N.J.S.A. 40A:14-147. On September 22, 1999, the Mayor and Council denied the motion.[1] Thereafter, the parties consented to a stay of the proceedings to enable Grubb to file an appeal with the Superior Court. A complaint in lieu of prerogative writs seeking review of the decision by the Borough was filed on October 22, 1999. On March 2, 2000 the court granted the Borough's application for summary judgment and remanded the matter to the Borough for the continuation of disciplinary hearings. The court did not retain jurisdiction.
On or about March 10, 2000, Hightstown Borough appointed a hearing officer to conduct a departmental disciplinary hearing and to make recommendations to the appropriate authority for a final determination. On April 12, 2000, the day the proceedings commenced, Officer Grubb made three pre-trial motions seeking the dismissal of the charges and, relying on N.J.S.A. 40A:14-147, made application to waive his right to a departmental hearing and proceed directly to the Superior Court. That application was denied. Thereafter both sides offered opening statements and Chief Hopkins offered the testimony of Investigator Steve Weitz.
On April 14, 2000, Officer Grubb filed a complaint in lieu of prerogative writs and *641 order to show cause seeking temporary restraints against the Borough. The order to show cause sought an order (1) enjoining the continuation of hearings at the municipal level and (2) seeking a determination on the issue of waiver under N.J.S.A. 40A:14-147. According to Officer Grubb, the language in N.J.S.A. 40A:14-147 confers upon him the right to waive a hearing at the municipal level, and instead, choose to have said disciplinary charges adjudicated before the Superior Court. Not surprisingly, Chief Hopkins asserts that Officer Grubb has misread N.J.S.A. 40A: 14-147, and that there is no authority for the proposition that the statute vests original jurisdiction in the Superior Court to hear a disciplinary proceeding involving a non-civil service municipality. To support this position, Chief Hopkins relies on N.J.S.A. 40A:14-150. In essence, Chief Hopkins asserts that while N.J.S.A. 40A: 14-150 permits municipal disciplinary matters to be heard in the Superior Court, that authority is limited to the Superior Court's de novo review of these matters.
Finally, Chief Hopkins contends that, assuming arguendo, Officer Grubb enjoyed the right to a hearing before the Superior Court, once an administrative departmental hearing has commenced and the hearing officer has made procedural and substantive rulings, the parties are estopped from seeking a waiver to secure a more "favorable" forum. In support of this position, Chief Hopkins submits that great time and expense has already been expended by the Borough Council, the Chief of Police and representatives from the police department, the municipal attorney and counsel for the Chief of Police related to the preparation for and participation and attendance at the departmental hearings.
On April 14, 2000, this court denied the order to show cause but provided counsel the opportunity to submit supplemental certifications and briefs related to the jurisdiction of the Superior Court on or before April 20, 2000.
II.
N.J.S.A. 40A:14-147, entitled "Suspension and removal of members and officers," sets forth the procedures for the removal of a law enforcement officer. The statute mandates that charges be identified in a written complaint setting forth the charge or charges against such member or officer and sets forth the specific time periods to serve the officer charged. Additionally, a "failure to comply with said provisions as to service of the complaint and the time within which the complaint is to be filed shall require a dismissal of the complaint." The last paragraph of N.J.S.A. 40A:14-147 provides that:
The law enforcement officer may waive the right to a hearing and may appeal the charges directly to any available authority specified by law or regulation, or follow any other procedure recognized by a contract, as permitted by law.
In interpreting this statute, it is the court's obligation to give effect to the Legislature's intent, and "[t]he clearest indication of an Act's meaning is its plain language." County of Camden v. South Jersey Port Corp., 312 N.J.Super. 387, 396, 711 A.2d 978 (App.Div.), certif. denied, 157 N.J. 542, 724 A.2d 801 (1998) (citing National Waste Recycling, Inc. v. Middlesex County Improvement Auth., 150 N.J. 209, 223, 695 A.2d 1381 (1997)). It is wellsettled that principles of statutory construction direct the courts to look first to the plain meaning of a statute to derive the statute's meaning, absent a specific indication that legislative intent mandates an alternative reading. Town of Morristown v. Woman's Club of Morristown, 124 N.J. 605, 610, 592 A.2d 216 (1991). Unless otherwise specified or indicated, words are to be given their "ordinary and well-understood meaning." Service Armament Co. v. Hyland, 70 N.J. 550, 556, 362 A.2d 13 (1976) (citations omitted).
Based on the plain language of N.J.S.A. 40A:14-147, it is clear that a law *642 enforcement officer has the right to waive a hearing at the municipal level and appeal the disciplinary charges directly to "any available authority specified by law or regulation, or follow any other procedure recognized by a contract, as permitted by law." The question in the case at bar is whether "any available authority specified by law or regulation," includes the Superior Court.
It is undisputed that Chapter 14 of Title 40A provides the procedures regarding disciplinary charges against law enforcement officers. Chapter 14 is void of any section that vests the Superior Court with original jurisdiction to entertain a disciplinary hearing concerning a law enforcement officer, as Grubb suggests. It is hornbook law that the court cannot not read N.J.S.A. 40A:14-147 in a vacuum. See Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 129, 527 A.2d 1368 (1987) (explaining that when interpretinga statute, "[i]n discerning [Legislative] intent we consider not only the particular statute in question, but also the entire legislative scheme of which it is a part.") (citations omitted). Interestingly, N.J.S.A. 40A:14-150, "Review of disciplinary conviction in non-civil service municipalities," provides the Superior Court with jurisdiction to review a law enforcement officer's conviction on disciplinary charges in a noncivil service municipality, such as Hightstown Borough. N.J.S.A. 40A:14-150 provides, in relevant part, that:
Any member or officer of a police department or force in a municipality wherein Title 11 (Civil Service) of the Revised Statutes is not in operation, who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court.... The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction.
[(Emphasis added) (footnote omitted).]
This statute is clear on its face. Importantly, N.J.S.A. 40A:14-150 supports the position that the Superior Court's jurisdiction is de novo in nature and that the drafters anticipated a departmental hearing at the local level as a condition precedent to the Superior Court exercising jurisdiction. To conclude otherwise would be inapposite to the plain and unambiguous language of the statute. Furthermore, the creation of a record below and the subsequent de novo review by the Superior Court has been addressed by the Appellate Division. In Grasso v. Borough Council of Glassboro, 205 N.J.Super. 18, 500 A.2d 10 (App.Div.1985), certif. denied, 103 N.J. 453, 511 A.2d 639 (1986) the court held:
We hold that N.J.S.A. 40A:14-150 was enacted for the benefit of public employees not subject to civil service to provide them with protection from arbitrary, unreasonable, biased or prejudicial action of the municipal officials by providing a right to a de novo hearing on the conviction of the charges of breach of discipline and sentence imposed. The amendment to the statute does not limit de novo hearings to the record before the disciplinary board but specifically permits a party to supplement the record with "additional testimony" at the de novo hearing.
[Id. at 27, 500 A.2d 10 (emphasis in original).]
Based on the above, the complaint in lieu of prerogative writs is dismissed and the matter is remanded to the Borough.[2] For purposes of completeness the court rejects the estoppel issue raised by Chief *643 Hopkins. This court does not retain jurisdiction.
NOTES
[1] The court notes that two days of testimony were offered and limited to whether or not the Borough complied with the notice requirements set forth in N.J.S.A. 40A:14-147.
[2] Officer Grubb retains his right to seek a de novo review. Again, N.J.S.A. 40A:14-150, in pertinent part, provides that "[a]ny member or officer of a police department or force in a municipality wherein Title 11 (Civil Service) of the Revised Statutes is not in operation, who has been tried and convicted upon any charge of charges, may obtain a review thereof by the Superior Court.... The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction." (Footnote omitted.) | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922211/ | 756 A.2d 186 (2000)
Lincoln C. ALMOND, in his capacity as Governor of the State of Rhode Island et al.
v.
The RHODE ISLAND LOTTERY COMMISSION, Newport Grand Jai Alai, LLC, and Burrillville Racing Association, d.b.a. Lincoln Greyhound Park et al.
No. 99-525-Appeal.
Supreme Court of Rhode Island.
July 27, 2000.
*187 Present: WEISBERGER, C.J., and LEDERBERG, BOURCIER, and FLANDERS, JJ.
Sheldon Whitehouse, Attorney General, Elizabeth A. Wallace, James R. Lee, Lauren Sandler Zurier, for Attorney General's Office.
Joseph S. Larisa, Jr., Erika Leigh Kruse, for Lincoln C. Almond.
Karen A. Pelczarski, Providence, for Common Cause of RI.
Deming E. Sherman, Providence, Loretta Smith, for New England Legal Foundation.
Lauren E. Jones, Robert Smith Thurston, Providence, for RI House of Representatives.
Thomas Dickinson, Providence, Jeremiah C. Lynch, III, for Newport Grand Alai.
Laurent L Rousseau, Newport, Daniel V. McKinnon, Pawtucket, for Lincoln Greyhound Park.
Edward M. Fogarty, for RI Senate.
Robert M. Silva, Middletown, David P. Martland, David C. Potts, Middletown, for Lottery Com'n.
OPINION
WEISBERGER, Chief Justice.
This case comes before us on appeals and cross-appeals from all parties to this litigation, save for the plaintiff intervenor, the Attorney General, from a declaratory judgment entered in the Superior Court along with a denial of a request by the Governor for injunctive relief. We reverse the declaratory judgment and affirm the denial of injunctive relief for reasons which will be set forth below. The facts of the case as found by the trial justice and the *188 context in which the case began are as follows.
From 1744 until the adoption of a Constitution by the people of Rhode Island in 1843, the General Assembly authorized and supervised a number of lotteries for the purpose of funding a number of public improvements. The lottery was supervised by the General Assembly, certain of whose members were appointed to serve as managers for some of the lotteries, but by the 1820s the General Assembly began to delegate the supervision of lotteries to professional managers. Following theratification of the Rhode Island Constitution in 1843, new lotteries were prohibited and the use of this method of funding public improvements ended. During the pre-constitutional era, the Legislature regulated every facet and every detail of every lottery that it created.
In 1973, the Constitution of Rhode Island was amended to lift the ban on state-run lotteries. The Constitution, as amended, set forth the following language in article 6, section 15:
"All lotteries shall be prohibited in the state except lotteries operated by the state and except those previously permitted by the general assembly prior to the adoption of this section, and all shall be subject to the prescription and regulation of the general assembly." (Emphasis added.)
In 1974, soon after the 1973 amendment was ratified, the General Assembly enacted a statute that was codified as G.L. 1956 § 42-61-1. This statute created a commission that was authorized to manage the lottery. The statute creating the Lottery Commission contained the following language.
"[The commission] shall consist of nine (9) members * * * three (3) of whom shall be members of the senate, not more than two (2) from the same political party to be appointed by the majority leader; three (3) of whom shall be members of the house of representatives, not more than two (2) from the same political party to be appointed by the speaker of the house; and three (3) of whom shall be representatives of the general public to be appointed by the governor." Section 42-61-1(a).
The trial justice in his factual findings set forth in detail the powers that were delegated by the statute to the Lottery Commission:
"a. Lotteries:
1. The type of lotteries to be conducted;
2. The price of tickets with respect to lotteries;
3. The number and size of prizes on winning tickets;
4. The manner of selecting winning tickets;
5. The manner of payment of prizes to the holders of winning tickets;
6. The frequency of the drawings or selections of winning tickets;
7. The number and types of locations at which tickets may be sold;
8. The method to be used in selling tickets;
9. The licensing of agents to sell tickets;
10. The license fee to be charged to agents;
11. The manner in which the proceeds of the sale of tickets are maintained, reported and/or otherwise accounted for;
12. The manner and amount of compensation to be paid to sales agents necessary to provide for the adequate availability of tickets to prospective buyers and for the convenience of the general public;
13. The apportionment of the total annual revenue accrued from the sale of tickets and from all other sources for the payment of prizes to the holders of winning tickets;
14. For payment of costs incurred in the operation and administration of the *189 Lottery, including the expense of the Commission and the cost resulting from any contract or contracts entered into for promotional advertising, consulting, or operational services;
15. Or for the purchase or lease of facilities, lottery equipment, and materials; and for the repayment of monies appropriated to the lottery fund;
16. The manner, standards and specification for a process of competitive bidding for Commission purchase and contracts, and;
17. The sale of commercial advertising space on the reverse side or in other available areas upon lottery tickets provided that all net revenue derived from the sale of the advertising space shall be deposited immediately into the state's general fund.
"b. VLTs: [video lottery terminals]
1. The licensing of technology providers capable of interfacing with a central communications systems controlled by the Commission (the award of a license to technology providers must satisfy the requirements of the State Purchasing Laws);
2. Accounting procedures for determining net terminal income from lottery terminals and unclaimed prizes and credits;
3. The type of video lottery game to be conducted;
4. The price to play each game and the prizes or credits to be awarded;
5. Financial reporting procedures for license[d] video lottery retailers and control procedures in the event that any of these retailers should become insolvent;
6. Insurance and binding by (i) licensed video lottery retailers and (ii) technology providers;
7. The licensing of licensed video lottery retailers;
8. Contracting with technology providers;
9. A provision requiring that all VLTs be linked under a central communications system to provide auditing program information as approved by the Lottery, and;
10. Any other matter necessary for VLTs or for the convenience of the public.[1]
"[The commission] * * * has exercised, and does exercise such power.
"The legislation creating the lottery provides for the position of director. The director of lotteries under the applicable statute is appointed by the Governor, subject, however, to confirmation by the Commission, and further, the director of lotteries is removable only bythe Commission. By statute, the director of lotteries is vested with certain responsibilities and authority. A review of those statutes specifically § 42-61-4 and § 42-61.2-4 clearly confirm the testimony of Director Aubin to the effect that he works for the nine members of the Commission (see testimony of Director Aubin, page 58, line 3, et seq. August 19, 1999).
"The lottery generated gross revenue in its most recent full fiscal year in the amount of $740,720,000 with net revenues of approximately $639,000,000. Of the gross revenue $548,100,000 represented VLT sales and $192,620,000 represented lottery sales. After deducting all expenses and the payouts to `successful' lottery and VLT players, and taking into account earnings on investment of lottery funds (handled by the General Treasurer) in the amount of $510,000, the revenue to the state general funds was approximately $135,000,000.
"The lottery is a major business enterprise."
*190 It is undisputed that the statute that created the Lottery Commission and delegated to it the foregoing specific powers was enacted by both Houses of the General Assembly and signed by the Governor in office at that time. The Lottery Commission operated continuously from 1974 until the present under the management of directors appointed by the Governor and approved by the commissioners. A previous director was John P. Hawkins, who also served for a time as the first chairman of the commission. Mr. Hawkins was succeeded by Gerald S. Aubin. Both Mr. Hawkins and Mr. Aubin testified in the Superior Court concerning their duties and the nature of the commission's operation. Another witness was Professor Patrick T. Conley, a noted historian who has written extensively on the constitutional and political history of the State of Rhode Island from its Colonial beginnings to modern times. The trial justice based his findings of fact upon this testimony, as well as extensive documentary evidence presented by the parties.
The present litigation arose as a result of a dispute between the Governor and the commission in respect to the authorization of an increase in the number of video lottery terminals (VLTs) to be allowedat Newport Grand Jai Alai and Lincoln Greyhound Park, which was owned by Burrillville Racing Association, Inc. On April 26, 1999, the Lottery Commission voted five to four to authorize this increase despite the opposition of the Governor, who appeared at a meeting of the commission to oppose the proposal to increase the number of VLTs. Those commissioners who voted in favor of the expansion were members of the Legislature who had been appointed either by the Speaker of the House of Representatives or by the Majority Leader of the Senate. Those voting against the additional VLTs were the three persons appointed by the Governor, who were joined by one member of the Legislature.
Shortly after the vote was recorded, but before the additional authorized machines were installed, the Governor brought this action for declaratory judgment and sought injunctive relief against the implementation of the commission's vote. In the course of the litigation, the owners and operators of the Newport Grand Jai Alai and of Lincoln Greyhound Park were added as defendants in this action. The Senate and the House of Representatives intervened as parties defendant. The Governor was joined as a party plaintiff intervenor by the Attorney General. The parties agreed that pending a hearing on the preliminary injunction, the commission would refrain from implementing its vote to increase the number of VLTs. A preliminary injunction was issued by a justice of the Superior Court. This preliminary injunction was vacated following the issuance of an opinion by this Court in In re Advisory Opinion to the Governor (Rhode Island Ethics Commission Separation of Powers), 732 A.2d 55 (R.I.1999).
Thereafter, the Superior Court conducted evidentiary hearings during the month of August 1999 and received memoranda of law from each of the parties plaintiff and defendant in this litigation. Duringthe course of the litigation, the Lottery Commission implemented its April 26, 1999 vote, and the Superior Court denied the Governor's further request for a preliminary injunction.
At the conclusion of the litigation, the trial justice found as a fact and held as a matter of law that plaintiffs' argument based upon separation of powers must fail. He based this holding upon our opinion in Narragansett Indian Tribe of Rhode Island v. State, 667 A.2d 280, 281 (R.I.1995), wherein we held that exclusive authority over lotteries is and always has been vested in the General Assembly either by Royal Charter or by Constitution. We went on to hold, as recognized by the trial justice, that the Executive Department had no claim to any constitutional power with respect to lotteries and further that the Governor lacked any implied powers with respect to lotteries. The trial justice went *191 on to state: "Accordingly, this Court is constrained to and does find that the plaintiffs' traditional separation of powers argument must fail."
The trial justice then proceeded to craft a somewhat ingenious doctrine that held in substance that an administrative agency composed of a majority of legislators could not manage and regulate the lottery without submitting each rule or regulation for approval to both Houses of the Legislature (bicameralism) and presenting each such rule or regulation to the Governor for his assent or veto (presentment). The trial justice observed with complete accuracy: "There is no question * * * that in connection with actions and votes at the Lottery Commission, none of the foregoing occurs." This theory was derived by analogy from the United State Supreme Court's opinion in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). We shall analyze this case in detail later in this opinion. We believe that it has no persuasive effect upon our determination of the issues raised in this litigation.
He then determined that the Lottery Commission, in exercising legislative power without the constraints of bicameralism and presentment, unconstitutionally had delegated its power to this commission by virtue of the fact that it was composed of a majority of members appointed by the House Speaker and the Senate Majority Leader. Having found that this delegation of power to this commission as so composed was unconstitutional, he entered declaratory judgment to that effect, but denied the Governor's request for injunctive relief and stayed his judgment until July 1, 2000, in the expectation that this Court would have reviewed his decision before that time. We later extended the stay until further order of this Court.
We must respectfully disagree with the decision of the trial justice insofar as he held that the delegation of power to this commission was unconstitutional. We do agree with the trial justice that, based on our holding in Narragansett Indian Tribe, the regulation of the lottery by the General Assembly did not violate the principle of separation of powers under the Rhode Island Constitution. The trial justice was completely correct in finding as a fact and holding as a matter of law that the Constitution placed the regulation of state-run lotteries entirely in the hands of the General Assembly without giving any role to the Governor. Such participation as was accorded to the Governor was given by reason of legislative delegation of such power so that the Governor was authorized to appoint three members of the commission and also to nominate the director subject to the approval of the members of the commission. This role was conferred by the Legislature and not by the Constitution.
Delegation of Power to the Commission
This Court has held on numerous occasions that "limited portions of the legislative power, if confined in expressly defined channels, may be vested by the general assembly in other bodies which it authorized to act as its agents or auxiliaries in carrying out its constitutional duties." Milardo v. Coastal Resources Management Council of Rhode Island, 434 A.2d 266, 270 (R.I.1981) (quoting Opinion to the Governor, 88 R.I. 202, 205, 145 A.2d 87, 89 (1958)). In Milardo, we synthesized our case law on the subject of delegation of authority by the General Assembly to administrative agencies in the following terms:
"Although we have interpreted our State Constitution to forbid unconditional delegation of legislative power, see City of Warwick v. Warwick Regular Firemen's Association, 106 R.I. 109, 113, 256 A.2d 206, 209 (1969), we have also recognized the need for administrative expertise in the discharge of certain legislative functions. Davis v. Wood, R.I., 427 A.2d 332, 335-36 (1981); J.M. Mills, Inc. v. Murphy, 116 R.I. 54, 61, 352 A.2d 661, *192 665 (1976); see State v. Peloquin, R.I., 427 A.2d 1327, 1330 (1981). Indeed, we have long been mindful of the notion expressed by the North Carolina Supreme Court that
`the problems which a modern legislature must confront are of such complexity that strict adherence to ideal notions of the non-delegation doctrine would unduly hamper the General Assembly in the exercise of its constitutionally vested powers.' Adams v. North Carolina Department of Natural & Economic Resources, 295 N.C. 683, 696-97, 249 S.E.2d 402, 410 (1978).
Cf. South Terminal Corp. v. Environmental Protection Agency, 504 F.2d 646, 677 (1st Cir.1974) (agency must have flexibility; Congress cannot acquire sufficient information to manage detailed process of enforcement).
"Thus, this court has acknowledged that `limited portions of the legislative power, if confined in expressly defined channels, may be vested by the general assembly in other bodies which it authorized to act as its agents or auxiliaries in carrying out its constitutional duties.' Opinion to the Governor, 88 R.I. 202, 205, 145 A.2d 87, 89 (1958).
"In sum, the delegation of legislative functions is not a per se unconstitutional action. Instead, it is the conditions of the delegation the specificity of the functions delegated, the standards accompanying the delegation, and the safeguards against administrative abuse that we examine in determining the constitutionality of a delegation of power. See Davis v. Wood, R.I., 427 A.2d 332, 335-36 (1981); De Petrillo v. Coffey, 118 R.I. 519, 524, 376 A.2d 317, 319 (1977); J.M. Mills, Inc. v. Murphy, 116 R.I. 54, 61, 352 A.2d 661, 665 (1976); Jennings v. Exeter-West Greenwich Regional School District Committee, 116 R.I. 90, 98, 352 A.2d 634, 638-39 (1976); City of Warwick v. Warwick Regular Firemen's Association, 106 R.I. 109, 118, 256 A.2d 206, 211 (1969). See generally A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551, 55 S.Ct. 837, 852, 79 L. Ed. 1570, 1591 (1935) (Cardozo, J., concurring) (delegation permissible when `canalized within banks that keep it from overflowing'); Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 249, 79 L.Ed. 446, 459 (1935) (despite need for wide range of administrative flexibility, constitutional system requires limitation).
"In Davis v. Wood and J.M. Mills, Inc. v. Murphy, both supra, we upheld delegations that provided general directions to the administrative agencies. By enunciating sufficiently intelligible standards, the Legislature had adequately guided the actions of the administrative agencies." Milardo, 434 A.2d at 270-71.
Applying the foregoing principles to the delegation by the General Assembly to the Lottery Commission of power to control and manage the state-run lottery in all its manifold aspects, we are constrained to conclude that this delegation provided specific and detailed guidelines within which the Lottery Commission should perform its functions. Certainly in the words of Justice Cardozo, the authority of the Lottery Commission has been "canalized within banks that keep it from overflowing." It would be hard to conceive of a delegation of authority to an administrative agency that was more specific in its terms and conditions than those provided by the General Assembly in respect to the Lottery Commission.
Moreover, the nature and scope of the duties of the Lottery Commission are such as to demand that the Legislature be permitted to delegate authority to operate such a massive enterprise. To suggest that such an administrative agency could carry out its functions if it were required to submit each rule,regulation, and vote back to the General Assembly for approval by each House and assent by the Governor would be to foredoom the agency to impotence *193 and futility. No administrative agency could exist under such constraints.
We recognize that the trial justice placed this disability upon the commission only because its membership consisted of a majority of legislators appointed by the Speaker of the House and Majority Leader of the Senate. Consequently, having rejected the separation of powers argument presented by the Governor and the Attorney General, the trial justice in effect took the position that no workable commission consisting of a majority of legislators could be delegated an essentially legislative power for the purpose of managing an enterprise that the Constitution specifically entrusted to the General Assembly, as opposed to the Executive Department. If we were to confirm this holding, we would in effect render the ability of the Legislature to delegate its power to a commission nugatory unless the Legislature appointed members of the committee in accordance with the dictates of the Judiciary. We believe that such judicial intervention would frustrate the expressed will of the framers of the constitutional amendment of 1973 as ratified by the people of this state.
Without indulging in a reprise of our analysis of the separation of powers doctrine, which the trial justice has properly held to be inapplicable to this case, we shall observe only that the power to regulate lotteries specifically has been bestowed by the Constitution upon the General Assembly. It is not our function to supervise the General Assembly in its exercise of this power. It is not our function to direct the General Assembly in respect to the wisdom of its method of appointment of members of a commission to which it has delegated the specific management of this enterprise. Neither the Governor nor this Court has been given the power to supervise the General Assembly's implementation of its authority to regulate lotteries in this state. Certainly it is not the function of this Court to pass upon thewisdom of the operation of the Lottery Commission nor to substitute its judgment in respect to the administration of this enterprise.
We stated in our recent advisory opinion, In re Advisory Opinion to the Governor (Rhode Island Ethics Commission Separation of Powers), 732 A.2d 55, 72-73 (R.I.1999), that it would be necessary for us to determine whether legislators might be appointed to serve on boards and commissions on a case-by-case basis. It was for this reason that we declined to answer questions two and three propounded to us by the Governor.
Applying such an analysis to the case at bar, we must determine from the text of the Constitution that this is a legislative, not an executive, power to implement. The Governor and the Attorney General seem to concede this in their briefs. Consequently, we perceive no basis for holding that the Legislature may not provide by statute for the creation of a commission consisting of a majority of members appointed from both Houses of the General Assembly with or without including representation from gubernatorial appointees. We conclude that there is no inhibition against the delegation of a portion of the General Assembly's power to such a commission, subject to appropriate guidelines set forth in the enabling legislation.
Our dissenting colleague has written a lengthy and interesting essay on political science. This essay views the structure of the Rhode Island government through the lens of a framer of the Constitution of the United States or as perceived by a member of the convention of 1787 that produced this splendid document. We might find the essay to be persuasive if we were members of a convention assembled to revise the Constitution of the State of Rhode Island. However, this Court is not the equivalent of a constitutional convention. We are not privileged to second-guess those delegates to a constitutional convention who drafted the provision relating to *194 the supervision of lotteries in the State of Rhode Island and who reposed the power of supervision and regulation of lotteries in the General Assembly. We are not privileged to second-guess the delegates to the constitutional convention that produced the revised Constitution of 1986. We must accept their work product as it was ratified by the people of this state.
It is not helpful to follow selective quotations from the landmark case of G. & D. Taylor & Co. v. Place, 4 R.I. 324 (1856). However, if our colleague wishes to rely upon the great words of Chief Justice Samuel Ames, he should not depend wholly on what the Chief Justice had to say about the limitations of the Constitution of 1843 upon exercise of the judicial power by the Legislature. It would be much more pertinent if he would consider the observations of Chief Justice Ames concerning the executive power as he determined it to be affected by the then recently adopted Constitution of 1843. Although Chief Justice Ames quoted the Federalist Papers and Alexander Hamilton in relation to the judicial power, he made the following statement in relation to the executive power: "the executive power had been nominal, merely, under the charter; and the constitution extends it very little. No jealousy of it, or of its assumption by the enterprising and all absorbing legislative department of the government, did, or could, exist." 4 R.I. at 349-51. (Emphasis added.)
The great bulk of the opinion was dedicated to Chief Justice Ames's establishment of the proposition that the new (1843) Constitution had vested the judicial power in the Supreme Court and such inferior courts as might be from time to time established by the Legislature. Our dissenting colleague will find very little in Taylor v. Place to support his argument relating to the tripartite separation of powers.
We know that our dissenting colleague regards the Rhode Island Constitution, however erroneously, as a mirror image of the Federal Constitution. Obviously, for reasons that we expoundedin detail quite recently in In re Advisory Opinion to the Governor (Rhode Island Ethics Commission Separation of Powers), 732 A.2d 55 (R.I.1999), we strongly disagree.
Nevertheless, following his mirror image theory, our colleague cites liberally from the majority opinion in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 103 S. Ct. 2764, 77 L. Ed.2d 317 (1983). We acknowledge the holding in Chadha, but strongly believe that it has little persuasive effect upon the instant controversy. Rather than quoting excerpts from the majority opinion, it might be helpful to consider the issue raised by the facts in Chadha.
Chadha was an East Indian who was a native of Kenya and held a British passport. He was lawfully admitted to the United States on a nonimmigrant student visa. The visa expired on June 30, 1972. On October 11, 1973, the district director of the Immigration and Naturalization Service (INS) ordered Chadha to show cause why he should not be deported for having remained in the United States longer than his visa permitted. When he appeared before an immigration judge, he admitted that he had overstayed his visa, and he was given an opportunity to file an application for suspension of deportation pursuant to § 244(a)(1) of the Immigration and Nationality Act (Act), formerly codified as 8 U.S.C. § 1254(a)(1).
This Act provided in pertinent part that the Attorney General might in his discretion suspend deportation of an alien who had been lawfully admitted and who had been in the United States for a continuous period of not less than seven years and was able to show that he was of good moral character and whose deportation would, in the opinion of the Attorney General, result in extreme hardship to the alien.
After hearing, an immigration judge on June 25, 1974, ordered that Chadha's deportation be suspended. The immigration *195 judge found that he had met the requirements of § 244(a)(1). He,therefore, suspended the deportation proceedings and, in accordance with § 244(c)(1) of the Act, formerly codified as 8 U.S.C. § 1254(c)(1), he forwarded a complete and detailed statement of the facts and pertinent provisions of law to both Houses of Congress. Under § 244(c)(2) of the Act, formerly codified as 8 U.S.C. § 1254(c)(2), either House had the right to veto the Attorney General's determination that the alien not be deported. If within the time limited by the statute neither the Senate nor the House of Representatives should pass a veto resolution, the Attorney General would then cancel deportation proceedings. After approximately one and one-half years (but within the time limited by the statute) the House of Representatives, pursuant to a resolution recommended for passage by the House Judiciary Committee and after review of 340 cases considered by the committee, determined that Chadha and five others did not meet the statutory requirements. The House then passed without debate or recorded vote, a resolution vetoing the Attorney General's suspension of deportation.
After seeking an administrative review without success, Chadha filed a petition for review of the deportation order in the United States Court of Appeals for the Ninth Circuit. The Court of Appeals held that the House of Representatives was without constitutional authority to order Chadha's deportation and, therefore, directed the Attorney General to cease and desist from taking any steps to deport this alien based upon the House resolution. INS sought review in the Supreme Court by appeal and petition for certiorari from the judgment of the Court of Appeals. Interestingly enough, INS agreed with the decision of the Ninth Circuit even though it sought review by the Supreme Court.
On this set of facts, a majority of the Court, in a decision written by Chief Justice Burger, held that a single House of the Congress could not enact a resolution vetoing an act by the Attorney General based upon power delegated to him by the Congress. The majority held that this was a legislative actthat would be valid only if passed by both Houses of the Congress (bicameralism) and presented to the president for his approval (or if vetoed by the necessary supermajority to override the veto).
It should be carefully noted that this action by the House of Representatives was in the form of a resolution enacted by the full House. It was not an action taken by an administrative agency to which power had been delegated. It should also be noted that by this opinion the Supreme Court invalidated nearly 200 other statutory provisions in which Congress had reserved a legislative veto.
Justice Powell concurred in the judgment. He took the position that Congress had not violated the principle of bicameralism and presentment, but by acting upon the case of an individual, effectively had usurped the judicial power. Therefore, he did not adopt the reasoning of the majority. See Chadha, 462 U.S. at 959-67, 103 S. Ct. at 2788-92, 77 L. Ed.2d at 350-55 (Powell, J., concurring in the judgment).
Justice White in dissent defended the legislative veto but more significantly pointed out the enormous importance of the numerous administrative agencies that carry out and implement the myriad of powers delegated to them by statute. See id. at 967-1003, 103 S.Ct. at 2792-2811, 77 L.Ed.2d at 355-77 (White, J., dissenting). He observed that the Court's holding in Chadha ignored the accepted doctrine that legislative authority is routinely delegated to the executive branch, to independent regulatory agencies, and to private individuals and groups. He quoted Justice Jackson for the proposition that "[t]he rise of administrative bodies probably has been the most significant legal trend of the last [19th] century." Id. at 983, 103 S.Ct. at 2801, 77 L.Ed.2d at 365-66 (White, J., dissenting) (quoting Federal Trade Commission v. Ruberoid Co., 343 U.S. 470, 487, *196 72 S.Ct. 800, 810, 96 L. Ed. 1081, 1094 (1952) (Jackson, J., dissenting)). He pointed out the obvious fact that legislative power can be exercised by independent agencies and executive departments without the passage ofnew legislation. Such rule-making power, when properly exercised, creates a body of law that has all the same force and effect as duly adopted legislation without the necessity of an enactment by Congress and approval by the President.
In the case at bar, the General Assembly enacted a statute by concurrence of both Houses and approval of the Governor that created the Lottery Commission. Our dissenting colleague undoubtedly will raise the cry that this agency is not independent because it has a majority of members who are legislators. For that same reason although it contains some individuals appointed by the Governor, it is not an executive agency. The short answer to this argument is that nothing in the Rhode Island Constitution prohibits the appointment of legislators or their designees to an administrative agency to which the Legislature has delegated a portion of its power to administer and regulate lotteries in this state. We must also be reminded that the Rhode Island Legislature (unlike the Federal Congress) need not look to the state Constitution as a source of authority by virtue of its historical plenary power (preserved in both the 1843 and 1986 Constitutions). It may exercise any power unless prohibited in this Constitution. See Kass v. Retirement Board of the Employees' Retirement System of Rhode Island, 567 A.2d 358, 361 (R.I.1989). The Rhode Island Constitution does not prohibit the appointment of legislators to administrative boards and commissions. These boards and commissions, once appointed pursuant to valid legislative enactments in which the principles of bicameralism and presentment have been fulfilled, then may exercise all the powers that administrative agencies have traditionally exercised in both the federal and state systems of government.
It must be emphasized that the trial justice and the parties concede that the Constitution of this state specifically has placed the regulation and supervision of lotteries in the General Assembly and not in the executive. All parties agree that there is no separation of powers issue in this case and the claimof violation of the principle of separation of powers must fail. Consequently, there is no inhibition against the delegation of the General Assembly's constitutional power to an administrative agency. This issue was not even considered by the majority of the Court in Chadha. Justice White was the only member of the Court who considered the effect of the decision upon administrative agencies. He pointed out unequivocally that the Congress had the power by appropriate legislation to delegate portions of its authority to administrative agencies. The Lottery Commission is an administrative agency created by legislation passed by both Houses of the General Assembly and signed by Governor Philip Noel. Our dissenting colleague expresses some criticism of Governor Noel for having signed such legislation. We do not believe that Governor Noel could be characterized by anyone, including our colleague, as a "shrinking violet." To suggest that an administrative agency could not exercise its functions without in each case having from the General Assembly specific approval through bicameralism and presentment would be to doom all administrative agencies to impotence. We are not persuaded by Chadha or by text writers that our Constitution mandates such a draconian result.
Just as we stated in the advisory opinion to the Governor on separation of powers, we are not interpreting the Constitution of the United States. We are interpreting a specific provision of the Rhode Island Constitution that squarely placed the power to regulate the state lottery in the hands of the General Assembly. *197 The appointment of certain members of the General Assembly to a commission or administrative agency created by the General Assembly in full compliance with the principle of bicameralism and presentment to manage and oversee the complex operation of the state lottery violates no mandate of our Constitution.
Conclusion
For the reasons stated, the defendants' appeal is sustained and the Superior Court declaratory judgment is hereby reversed. The portion of the judgment that denied injunctive relief to the plaintiffs is affirmed. The papers in the case are remanded to the Superior Court with directions to enter judgment in favor of the defendants.
Justice GOLDBERG did not participate.
FLANDERS, Justice, dissenting.
I respectfully dissent. My colleagues in the majority contend that "[i]t is not our function to supervise the General Assembly in its exercise of this power [to regulate lotteries]" because "[n]either the Governor nor this Court has been given the power to supervise the General Assembly's implementation of its authority to regulate lotteries in this state." But we are the State Constitution's whistleblowers. "[O]ur proper office," as Chief Justice Ames put it in the seminal case of G. & D. Taylor & Co. v. Place, 4 R.I. 324, 341 (1856), is "resisting and restraining unconstitutional assumptions of power," id., especially those assumed by the General Assembly "because it so much needs constitutional control." Id. at 355. Indeed,
"it is only because it so much needs constitutional control, that the doubt arises whether the constitution does control it. Strong as it is, however, it is, alike with the other departments of the government, powerless before the constitution, and the will of the people which that instrument expresses. The constitution was set up by the people to bound the enterprise of its ambition; to limit the sphere of its activity; to rescue, through the aid of the judicial department, the powers of that and the [executive] department of the government from the eddying current of its `impetuous vortex.' This [C]ourt construes the same form of language in the constitution, when applied to the judicial department, to give exclusive judicial power, as when applied, in the same instrument, to the legislative department, to give exclusive legislative power; and sees, in the natural enterprise and force of this latter department, nothingbut a necessity for the control, with the administration of which, the [C]ourt is, by the constitution, entrusted." Id. (First and second emphases in original.)
Thus, if the General Assembly, the Governor, or anyone else has violated our constitution in a case properly before us, "[i]t is emphatically the province and duty of the judicial department to say what the law is," Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60, 73 (1803) (Marshall, C.J.), and thereby "to control the tendency to excess of action in every other department." Taylor, 4 R.I. at 347. And so, instead of wringing our hands and professing how powerless we are to oversee the General Assembly's implementation of its lottery-regulation powers, we should "start with the premise that legislatures are the creatures of the constitution. They owe their existence to it and derive their powers from it. It is their commission. Therefore all their acts must be conformable to it or else they will be void." City of Providence v. Moulton, 52 R.I. 236, 241, 160 A. 75, 77 (1932). (Emphasis added.) For this very reason, our own constitution expressly provides that "[t]his Constitution shall be the supreme law of the state, and any law inconsistent therewith shall be void." R.I. Const. art. 6, sec. 1. (Emphasis added.) Obviously, this constitutional injunction applies to laws passed by the Legislature, as well as to the actions of any agency, commission, or other government entity. Cf. Metropolitan *198 Washington Airports Authority v. Citizens for the Abatement of Airport Noise, Inc., 501 U.S. 252, 269, 111 S.Ct. 2298, 2308, 115 L.Ed.2d 236, 254-55 (1991) (holding that a board of federal legislators appointed by local government authorities necessarily exercised sufficient governmental power as an agent of Congress to violate the federal separation-of-powers doctrine). Accordingly, even though the constitution has specifically bestowed the power to regulate lotteries upon the General Assembly, it is our function, as this state's highest court, to determine whether it has implemented that power in a manner that is consistent with our constitution. If it has not, then the General Assembly'sattempt to regulate lotteries in this case "shall be void," R.I. Const. art. 6, sec. 1, and we not only have the power but the duty to exercise the "necessity for the control" over "the natural enterprise and force of this [legislative] department * * * with the administration of which, the court is, by the constitution, entrusted." Taylor, 4 R.I. at 355.
Under a tripartite system of distributed government powers like the one we have here in Rhode Island, it is hornbook constitutional law that the Legislature "may not delegate power to parts of itself whether or not an exercise of that delegated power is deemed a `legislative act.'" Laurence H. Tribe, 1 American Constitutional Law, § 2-5 at 145 (3d ed.2000) (hereinafter Constitutional Law). Moreover, "a quasi-parlimentary form of government in which [the Legislature] delegates any power to itself or its parts even legislative power is inconsistent with the most fundamental architecture of the Constitution." Id. at 140. Thus, the General Assembly cannot delegate its article 6, section 15, power to regulate and proscribe[2] lotteries to the Senate or to the House of Representatives alone, to some legislative committee thereof, or to an agency like the Lottery Commission that is controlled by legislators or their surrogates. Such a delegation is impermissible under our constitution because it allows a part of the whole to accomplish what the constitution allows only the whole Legislature to do.Indeed, what is even worse, it allows a small subgroup of the General Assembly to regulate lotteries without satisfying our State Constitution's "single, finely wrought and exhaustively considered" safeguards of bicameralism, presentment, and keeping a public journal of all legislative proceedings that is, without complying with the very constitutional hurdles that the General Assembly must clear before it can pass laws, votes, or resolutions pertaining to lotteries. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 951-52, 103 S.Ct. 2764, 2784, 77 L.Ed.2d 317, 344-45 (1983) (holding that any action taken by a subpart of the Legislature that is legislative in "character," must be taken in accord with the "single, finely wrought and exhaustively considered, procedure[,]" set forth in the explicit and unambiguous bicameralism and presentment provisions in Article I of the Federal Constitution that are also present in our State Constitution).[3]
*199 These constitutional restrictions on the General Assembly's ability to delegate its lottery-regulation powers to an administrative agency or commission comprised of a majority of sitting legislators are not "the dictates of the judiciary," as the majority would have it, but rather, they are the dictates of the people of Rhode Island as they have embodied them in our State Constitution.[4] Thus,our affirmance of the Superior Court's judgment in this case would not render nugatory the General Assembly's ability to delegate its lottery-regulation powers to a typical governmental commission or agency comprised of a majority of nonlegislators. Rather, the General Assembly would be barred only from self-delegating its power to legislator-dominated entities like the present Lottery Commission because they are not "other bodies" to whom legislative powers can be delegated, see Milardo v. Coastal Resources Management Council of Rhode Island, 434 A.2d 266, 270 (R.I.1981) (emphasis added), but subparts and constituent elements of the General Assembly itself.
Furthermore, however broad the General Assembly's legislative powers may be with respect to the regulation of lotteries, it has no power under our State Constitution to execute the laws. Because the power to execute the laws has been distributed to the executive department of our state government, the constitution thereby prohibits the Legislature from exercising this power. "The constitutional distribution of the powers of [Rhode Island's state] government is at once a grant of specific power to each department and a prohibition to the other two with reference to that same power." Creditors Service Corp. v. Cummings, 57 R.I. 291, 300, 190 A. 2, 8 (1937). By vesting a controlling subpart of the Legislature namely, the six legislator members of the nine-member Lottery Commission with the power to execute the same votes, resolutions, and regulations that they pass with respect to lotteries, the General Assembly has violated this fundamental structural limitation embedded in our State Constitution because "[a] primary separation-of-powers concern * * * is that power both to enact and to execute laws not be lodged in the *200 same hands." Constitutional Law, § 2-5 at 140 n.25.
And the mere fact that the present Governor appeared before the Lottery Commission to urge it not to increase the number of video-lottery terminals (VLTs)[5] and that a previous Governor may have endorsed the idea of a Lottery Commission or was once foolish, pliant, or weak enough not to veto the General Assembly's attempt to create such a legislator-dominated agency[6] cannot possibly be invoked to ward off any later constitutional objection to such an arrangement. Otherwise, once the General Assembly succeeds in enacting a law that will allow it in the future to make an end run around the presentment, public journal, and bicameralism requirements of the constitution even if it does soby overriding the veto of the Governor it is then home free constitutionally to legislate away forever after through whatever legislator-dominated entity or subgroup it has empowered for this purpose without satisfying the otherwise applicable requirements of the constitution for enacting such legislation. But, as the United States Supreme Court held in Chadha and Metropolitan, this game cannot be played consistent with a constitution containing bicameralism and presentment limitations on the attempted exercise of legislative powers by any subgroup of the Legislature.
Here, the General Assembly has empowered the Lottery Commission not only to enact laws and pass votes and resolutions relating to lotteries without satisfying the bicameralism (article 6, section 2), public journal (article 6, section 8), and presentment requirements (article 9, section 14) of our State Constitution, but also to execute these same laws, votes, and resolutions.[7] In Chadha, the United States Supreme Court explained that the Federal Constitution's presentment (Article I, section 7, clause 2) and bicameralism requirements (Article I, sections 1 and 7) constitute crucial structural restraints on the "hydraulic pressure inherent within [the Legislature] to exceed the outer limits of its power." Chadha, 462 U.S. at 951, 103 S.Ct. at 2784, 77 L.Ed.2d at 345. Thus, it reasoned, if the separation of powers provided for in the Federal Constitution was to function as more than "`an abstract generalization,'" id. at 946, 103 S.Ct. at 2781, 77 L.Ed.2d at 341, the courts must enforce the bicameralism and presentment requirements not only when the Legislature purports to act legislatively but whenever it takes action that must be deemed "legislative." Id. at 952, 103 S.Ct. at 2784, 77 *201 L.Ed.2d at 345. The Court deemed the one-house legislative veto of Chadha's status as a permanentresident alien to be a legislative act because it "had the purpose and effect of altering the legal rights, duties, and relations of persons * * * outside the Legislative Branch." Id. And because both houses of Congress failed to approve the legislative veto in Chadha and failed to present the veto to the President for his approval or rejection, it followed inexorably that it was unconstitutional. Id. at 959, 103 S.Ct. at 2788, 77 L.Ed.2d at 350. Indeed, the lack of any presentment requirement alone would itself have been enough to doom the action in question. See United States Senate v. Federal Trade Commission, 463 U.S. 1216, 103 S.Ct. 3556, 77 L.Ed.2d 1413 (1983) (FTC). In FTC, the Court summarily affirmed the lower court's judgment invalidating a two-house legislative-veto provision, a device that obviously satisfied the bicameralism requirement but not the presentment obligation that applies to all legislative actions not expressly exempted therefrom by the Federal Constitution. Id. at 1216, 103 S.Ct. at 3557, 77 L.Ed.2d at 1413.
In this case, the commission's vote to increase the number of VLTs in Lincoln and in Newport suffers from the same fatal defects as invalidated the one-house veto in Chadha. Instead of a one-house legislative veto, the votes of just five legislators in this case "had the purpose and effect of altering the legal rights, duties, and relations of persons * * * outside the Legislative Branch." Chadha, 462 U.S. at 952, 103 S.Ct. at 2784, 77 L.Ed.2d at 345. Significantly, the Chadha Court held that the House of Representatives' veto of the decision to suspend Chadha's deportation had to be deemed legislative because, without its exercise, Chadha would have remained in America, and any change in his legal status as a resident alien could have been wrought only by legislation requiring his deportation. Id. at 953-54, 103 S.Ct. at 2785, 77 L.Ed.2d at 346. Here, too, but for the votes of the five legislators who authorized the VLT increase, any change in their legal status could have been wrought only by legislation. See also Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986),(invalidating a provision in the federal Balanced Budget and Emergency Deficit Control Act of 1985, 2 U.S.C. §§ 901 to 922, popularly known as the "Gramm-Rudman-Hollings Act," that delegated power to the Comptroller General to forecast the budget deficit and to order the budget cuts necessary to bring federal spending within the act's ceiling, 478 U.S. at 734, 106 S.Ct. at 3192, 92 L.Ed.2d at 601, and holding that this delegation was an invalid attempt to vest a legislative official with power that was "executive" in nature).
I am of the opinion that legislative attempts to self-delegate governmental powers to legislator-dominated entities like the one in this case are particularly corrosive to our constitution's steel structural undergirding: the distribution and vesting of the state government's powers in separate departments that are in turn restricted constitutionally in how they can exercise their powers. This is especially so because such delegations partake of a certain "stealth" factor that serves to obscure the true encroaching effect of these provisions on the state government's other branches. As James Madison once observed, the Legislature "can with greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments." See Metropolitan Washington Airports Authority, 501 U.S. at 277, 111 S.Ct. at 2312, 115 L.Ed.2d at 259 (quoting The Federalist No. 48, at 334 (James Madison) (Jacob Cooke ed., 1961)).[8] For this reason, *202 "[t]here is more to fear when [the Legislature] which is the source of all statutorily delegated authority delegates not to the other branches, but to itself." Constitutional Law, § 2-6 at 146.
This is precisely why the conventional delegation-of-power cases upon which the majority relies are all inapposite to this situation. None of those cases involved an attempted delegation of the General Assembly's legislative powers to a legislator-dominated entity endowed with rulemaking authority, thereby enabling it to evade the strict bicameralism, public journal, and presentment limitations that apply whenever the General Assembly itself purports to act on such matters. Thus, if the General Assembly had delegated its lottery-regulation powers to some other body like a conventional administrative agency instead of a commission whose membership is dominated and controlled by a majority of sitting legislators the agency would not need to comply with the bicameralism and presentment requirements that apply to legislative actions because it would not be an entity controlled by the Legislature or its members.[9]
Accordingly, the United States Supreme Court, like our Court, long has upheld delegations of limited portions of the legislative power to executive or independent administrative agencies, provided the delegation is confined by some legislative standard(s) that can serve as a safeguard against executive or administrative abuse of that delegation. But until today, neither the United States Supreme Court nor our Court ever has upheld an attempted delegation of legislative and executive power to an entity controlled by a majority of sitting legislators.[10] Indeed, in every instance when the United States Supreme Court has confronted such a legislative attempt to circumvent the Federal Constitution's separation-of-powers, bicameralism, and presentment requirements, it has declared such legislation to be unconstitutional because "[the Legislature's] authority to delegate portions of its power to administrative agencies provides no support for the argument that [the Legislature] can constitutionally control administration *203 of the laws by way of a [legislative] veto," Chadha, 462 U.S. at 954 n.16, 103 S.Ct. at 2785 n.16, 77 L.Ed.2d at 346 n.16, or by some other such attempted delegation of power to a subpart of the Legislature such as individual sitting legislators, whether they nominally sit as a board, commission, or agency, or under some other alias chosen by the Legislature to characterize its legislator-dominated creation. See Metropolitan Washington Airports Authority, 501 U.S. at 277, 111 S.Ct. at 2312, 115 L.Ed.2d at 259.
Thus, after deciding the Chadha, FTC, and Bowsher cases, the United States Supreme Court in Metropolitan struck down legislation transferring control of two airports near Washington, D.C. from so through means short of bicameralism and presentment)." Manning, 97 Colum. L. Rev. at 711.the federal government to local authorities. The legislation conditioned the transfer of control on the local authorities' creation of a "Board of Review" composed of nine sitting legislators. As part of its enabling legislation, Congress invested this board with a broad veto power over decisions made by the new local airport agency. Metropolitan Washington Airports Authority, 501 U.S. at 277, 111 S.Ct. at 2312, 115 L.Ed. 2d at 259. The Metropolitan Court noted that the Federal Constitution imposes two basic restraints on the Legislature: (1) "[i]t may not `invest itself or its Members with either executive power or judicial power,'" id. at 274, 111 S.Ct. at 2311, 115 L.Ed.2d at 257 (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624, 629 (1928)); and (2) "when it exercises its legislative power, it must follow the `single, finely wrought and exhaustively considered, procedure' specified in Article I [presentment and bicameralism]," id. (quoting Chadha, 462 U.S. at 951, 103 S.Ct. at 2784, 77 L.Ed.2d at 344), and "may not delegate the power to legislate to its own agents or to its own Members." 501 U.S. at 275, 111 S.Ct. at 2311, 115 L.Ed.2d at 258. See also Bowsher, 478 U.S. at 755, 106 S.Ct. at 3202, 92 L.Ed.2d at 614. (Stevens, J., concurring). As a result, the Metropolitan Court did not need to decide just what sort of power the congressional board of review would be exercising when it acted, because it was unconstitutional either way: "[i]f the power is executive, the Constitution does not permit an agent of [the Legislature] to exercise it. If the power is legislative, [the Legislature] must exercise it in conformity with the bicameralism and presentment requirements of [the Constitution]." 501 U.S. at 276, 106 S.Ct. at 2312, 115 L.Ed.2d at 259. Indeed, "[a]ny other conclusion would permit [the Legislature] to evade the `carefully crafted' constraints of the Constitution * * * simply by delegating primary responsibility for execution of [policy to nonlegislative actors], subject to the veto power of Members of [the Legislature, supposedly] acting `in their individual capacities.'" Id. at 269-70, 111 S.Ct. at 2308, 115 L.Ed.2d at 255.
Here, as in Metropolitan, we have "an entity created at the initiative of [the Legislature], the powers of which [the Legislature] has delineated, the purpose of which is to protect an acknowledged [state] interest, and [the controlling] membership in which is restricted to [legislative] officials." Id. at 269, 111 S.Ct. at 2308, 115 L.Ed.2d at 254. Thus, for the same reasons that the United States Supreme Court has repeatedly invalidated such egregious legislative attempts to bypass the bicameralism and presentment requirements of the Federal Constitution and to invest legislative officials with executive or legislative power, we should strike down this law as violating our State Constitution, containing in all aspects substantially the same provisions that caused the United States Supreme Court in the Metropolitan, Chadha, Bowsher, and the FTC cases to do likewise. Indeed, far from crafting what the majority calls "a somewhat ingenious doctrine," the trial justice applied settled principles of constitutional law to the Legislature's attempt to evade the State Constitution's restrictions upon the exercise of its powers when he declared the Lottery Commission's VLT vote *204 to be unconstitutional. The only "somewhat ingenious doctrine" at work here is the separation of powers and checks and balances provided for in our State Constitution. Moreover, the majority's suggestion that "[a]ll parties agree that there is no separation of powers issue in this case and [therefore] the claim of violation of the principle of separation of powers must fail" is belied by the fact that both the Governor and the Attorney General have filed legal briefs in this case that fairly bristle with myriad separation-of-powers arguments concerning why the General Assembly's creation of a Lottery Commission dominated by sitting legislators violates the separation-of-powers provisions in our State Constitution.
Notwithstanding these indistinguishable federal precedents applying the analogous constitutional provisions that concern us here and the trial justice's correct application of them to this case, a majority of this Court is apparently unwilling to rein in the General Assembly when it transgresses theconstitutional limits that prevent it from executing the laws that it enacts and from delegating its powers to some legislative "mini-me" like the Lottery Commission.[11] By their advisory opinion last term and by their decision in this case, my colleagues virtually have handed over to the General Assembly on a platter the chief executive's constitutional rights and responsibilities, thereby letting the Legislature have its way to execute the very same laws that it passes. It has even been suggested by the House of Representatives in one of its briefs to this Court that, "under our constitution, the judicial and legislative departments are independent coequal branches of government" subject to the federal doctrine of separation of powers, but not so with respect to the "diminutive" executive branch. But just as a teacher should not sit by and idly watch while a big schoolyard bully beats up the smallest kid in the class, so too this Court should not twiddle its thumbs while the Legislature oversteps the constitutional limits of its powers and tramples upon the "diminutive" executive department. And lest any dispassionate observer be tempted to conclude otherwise, we are not parties to some faustian bargain with the General Assembly whereby, in return for the Legislature's largesse in allowing the Judiciary to function as an independent, coequal branch of government, the Court is obliged to wash its hands of any constitutional responsibility to check the Legislature's periodic propensity to overstep the constitutional limits on its powers and to exercise the executive power that our constitution has distributed away from that department and vested instead in the executive branch of government. On this defining legal subject, a judicial policy and practice of legislative appeasement will not bring constitutional peace in our time. And however "diminutive" the executive branch may appear when it has been shunted aside into the looming shadows cast by the legislative department, the State Constitution still vests it and not the General Assembly with all the state government's executive power. Thus, in my opinion, the Court hasnot only taken a wrong turn in deciding this case the way it has, but also, by failing to heed our state charter's fundamental directional signposts that specify how the Legislature must execute its powers, it both has lost its constitutional way and condoned a particularly insidious form of legislative lawlessness that will haunt our state for years to come.
All too often, as here, parliamentary supremacists and other extreme proponents of plenary powers for the Legislature have resorted to the General Assembly's preconstitutional history as a reason for us to stand aside and let the Legislature have its way, notwithstanding that the framers of our constitution have included in its text both explicit and implicit limitations upon the exercise of legislative power that are contrary to that history. As in Taylor, 4 R.I. at 360-64, this Court has heard and *205 spurned this siren song before when declaring legislative acts unconstitutional, and we should do so again today. Indeed, "the unarticulated assumption" of such historical pleas for legislative or, for that matter, executive "power to deal with a crisis or an emergency according to the necessities of the case" is that "necessity knows no law." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 646, 72 S.Ct. 863, 875-76, 96 L.Ed. 1153, 1205 (1952) (Jackson, J., concurring). Yet even history and necessity must bow to the law when the constitution's fundamental structural principles are at stake because "the Framers ranked other values higher than efficiency." Chadha, 462 U.S. at 959, 103 S.Ct. at 2788, 77 L.Ed.2d at 349. Perhaps the most malevolent danger of such appeals to history or expediency is that they easily lead to the incremental tyranny of heaping, one upon the other, what may seem at the time and in isolation to be relatively small constitutional transgressions. But as Bertrand Russell once warned, this way of thinking "is like a warm bath that heats up so imperceptibly that you don't know when to scream."[12] We should make clear that the judicial decision to "scream" toinvoke our State Constitution whenever the Legislature, the Executive, the Judiciary, or any other governmental entity or official attempts to circumvent the restrictions and limitations set forth therein on their powers will be made with particular regard to preserving the integrity of our constitution's most fundamental architectural principles. See Constitutional Law, § 2-6 at 152.
In my judgment, for a delegation of legislative power to an entity controlled by a majority of legislators to possess any chance of passing constitutional muster, it would have to, at a minimum, include the same limitations and restrictions that bind the Legislature's power when it purports to act pursuant to the Constitution. Otherwise, the Legislature will possess every incentive to make an end run around the potentially cumbersome and sometimes problematical constitutional obstacles of bicameralism, public-journal entries, and presentment whenever it wishes to enact laws that might not otherwise clear these legal hurdles or that might prove too controversial or time-consuming to subject to the normal and constitutionally mandated legislative process. But hereafter, who and/or what is going to stop the General Assembly from simply forming some type of a commission composed, for example, solely of the Speaker of the House and the Majority Leader of the Senate and empowering it (and, thus, these individual legislators) to enact whatever laws they deem expedient say on education, the environment, or taxation? In the future, moreover, why should the General Assembly or any controlling subgroup thereof subject its will to the risk of a gubernatorial veto or to passage by both houses of the Legislature? And why should legislators have to submit controversial legislation to the inevitable public vetting that occurs when proposed bills are exposed to the usual legislative process? Indeed, why not allow the General Assembly simply to create a so-called "Legislative Leadership Commission" (LLC), appoint the legislative leadership as its sole members, and let them decide by themselves what laws to enact via administrative votes, resolutions, or rulemaking? In other words, why fool around with the rest of the Legislature, the Governor, or the Supreme Court let alone with bicameralism and presentment limitations established by the citizens of Rhode Island when an LLC, a Lottery Commission, or some other such legislative proxy or facsimile will suffice to finesse this whole constitutional kit and caboodle?
Surely, one of the most unwelcome yet momentous tasks for the highest court in any jurisdiction is to require itself and the other branches of government to toe the *206 constitutional line whenever they purport to exercise their powers. Otherwise, an enormous risk exists that one or more of them simply will ignore these restrictions and proceed methodically at times, haphazardly at others, but always inexorably and implacably to aggrandize their powers at the expense of those vested by the people of this state in the other branches of state government. Such a process, I fear, is now apace in Rhode Island. Yet this Court steadfastly maintains that from a constitutional perspective it sees no evil, speaks no evil, and hears no evil in such legislative power plays. Rather, the majority blithely stamps its imprimatur on such acts, professing that we are powerless to do anything about how the General Assembly exercises its lottery regulation powers or whether it encroaches on executive powers in doing so. But by not enforcing the State Constitution's bicameralism and presentment requirements in this case the Court risks reducing these provisions to little more than "bare ruined choirs where late the sweet birds sang."[13] Furthermore,
"[i]n a case so clear from doubt as this is, we should be equally unworthy of the post of duty in which we are placed by the constitution, if we swerved from the duty which that post devolves upon us, eitherfrom want of a just attention to, or a just sense of, the rights of litigants before us, oppressed by an unlawful exercise of power by the assembly, or from a false delicacy growing out of the conflict of power involved in the case between the legislative department of the government [and another such department]." Taylor, 4 R.I. at 364.
I also believe that today's decision serves to undermine an even more fundamental cornerstone of our State Constitution, one that the Federal Constitution in Article IV, section 4, guarantees to each state in the union: namely, a republican form of government. Indeed, with respect to the regulation of lotteries, it would seem that Rhode Island no longer has a republican form of government. Instead of a popularly elected legislature enacting lottery-related laws passed by both houses, recording those votes in a public journal of its proceedings, and then presenting the legislation to the Governor for his or her approval or veto, a commission controlled by a small subset of legislators appointed by the Legislature's leadership is running a mega-gambling operation that is raking in hundreds of millions of dollars without popular government approval of its regulations and in defiance of the constitution's bicameralism, public journal, and presentment requirements. Even dyed-in-the-wool parliamentary supremacists should blanch at a scheme that so blatantly bypasses our State Constitution's requirements for valid legislative action. Instead of wiping our brow and proclaiming how powerless we are to intervene in such matters, we, like the United States Supreme Court, should "not hesitate[] to strike down provisions of law that either accrete to a single Branch powers more appropriately diffused among separate Branches or that undermine the authority and independence of one or another coordinate Branch." Mistretta v. United States, 488 U.S. 361, 382, 109 S.Ct. 647, 660, 102 L.Ed.2d 714, 737 (1989).
Yet we are told that, because this Court is "not interpreting the Constitution of the United States, * * * [but] a specific provision of the Rhode Island Constitution which squarely placed the power to regulate the state lottery in the hands of the General Assembly," it "violates no mandate of ourconstitution" to allow the General Assembly to delegate its power to regulate lotteries to a commission dominated by legislators. And never mind that the General Assembly has endowed this commission with the power both to enact laws pertaining to lotteries without satisfying the constitution's bicameralism, public journal, and presentment requirements and to execute those same laws, in derogation *207 of our constitution's separate vesting of the executive power. But the constitution of our state is no different from the United States Constitution with respect to the key provisions that control the outcome in this case. Does our State Constitution provide for a tripartite division of the powers of government like the Federal Constitution? It does. Does it include bicameralism and presentment limitations on the valid exercise of legislative powers as does the Federal Constitution? Most certainly. And does it, like its federal counterpart, vest the executive power in a separate branch of government, endow the chief executive officer with that executive power, enjoin the chief executive officer to take care that the laws are faithfully executed, and thereby prohibit the other two branches from exercising such executive powers? Yes, indeed. See In Re Dorr, 3 R.I. 299, 301 (1854) (affirming that "power exclusively conferred upon the one department is, by necessary implication, denied to the other"). Thus, in all material respects pertinent to answering the legal questions that this case raises, the United States and Rhode Island Constitutions are formally and functionally the same.[14] As a result, the United States Supreme Court precedents cited herein are especially relevant and persuasive concerning how we ought to resolve the controversy before us, especially because we have repeatedly professed our relianceupon one or more of these precedents when deciding other separation-of-powers cases. See, e.g., City of Pawtucket v. Sundlun, 662 A.2d 40, 58 (R.I.1995) (citing Chadha with respect to this Court's proper analysis of a separation-of-powers challenge); State v. Jacques, 554 A.2d 193, 196 (R.I.1989) (relying upon federal jurisprudence to define what constitutes a separation-of-powers violation); Holmes v. Farmer, 475 A.2d 976, 982-85 (R.I.1984) (relying upon The Federalist No. 47, at 343 (James Madison) (Dawson ed., 1864), and United States Supreme Court precedents on separation of powers to determine the scope of legislative privilege).
Moreover, the mere fact that the State Constitution specifically vests the General Assembly with the power to "regulate" and to "proscribe" lotteries does not mean that the General Assembly is therefore entitled to ignore all the other constitutional restrictions that limit its ability to exercise its legislative powers. First, its article 6, section 15 power to regulate lotteries is contained in the part of the constitution that addresses "the legislative power." Thus, it contains no authorization whatsoever for the General Assembly to execute any laws that it may pass pertaining to the regulation and/or to the proscription of lotteries. And contrary to the majority's assertion, the State Constitution vests no power in the General Assembly concerning "the supervision of lotteries in the State of Rhode Island," nor have all the parties and the trial justice conceded that the State Constitution has specifically placed the "supervision of lotteries in the General Assembly and not in the executive." The power to regulate is not the power to supervise.[15] Nor does it empower the *208 General Assembly to act judicially with respect tointerpreting the laws it enacts to regulate lotteries. Surely, it would be ludicrous to suggest that merely because the Federal Constitution grants Congress the power "[t]o regulate commerce" in Article I, section 8, it thereby endowed Congress with the ability to execute the commercial laws it passes or to circumvent the bicameralism and presentment requirements of the Federal Constitution by investing a subgroup of legislators with the power to pass commercial rules and regulations and then administer these same laws. Second, nothing in our constitution's language vesting the General Assembly with the legislative power to regulate and to proscribe lotteries entitles the General Assembly to avoid the separate article 6, section 2, requirement that it obtain "[t]he concurrence of the two houses" before "the enactment of laws" pertaining to lottery regulation. And under R.I. Const. art. 9, sec. 14, "[e]very bill, resolution, or vote * * * which shall have passed both houses of the general assembly shall be presented to the governor" for his or her approval or veto.
If the framers of the 1973 lottery amendment to our State Constitution had intended so radical a proposition that the other constitutional prerequisites to the valid exercise of legislative powers would not apply to the General Assembly's regulation and proscription of lotteries, they would have said so in a constitution that long ago removed the Legislature's preconstitutional executive and judicial powers and bestowed them, respectively, upon the other two departments of state government. But they did not so provide. And because the text of our constitution gives no indication that these bicameralism and presentment provisions have been superseded, modified, or suspended in the case of lotteries, we should read article 6, section 15, of our State Constitution as requiring the Legislature to comply with the normal and usual requirements for passing legislation whenever it attempts to regulate lotteries. Indeed, the existence of constitutional exceptions to the bicameralism and presentment requirements for example, the advice and consent provisions of R.I. Const. art. 10, sec. 4, for the confirmation of the Governor's nominees to state court judgeships proves that when the framers wished to create exceptions to the generally applicable rules that they laid down for valid legislative actions, they knew how to do so. With respect to lottery regulations, however, they carved out no such exception.
The majority also summons the case of Narragansett Indian Tribe of Rhode Island v. State, 667 A.2d 280 (R.I.1995) to its side, but it proves no boon companion in this context. That case held only that the Governor had no authority to bind the state to a lottery compact with the Narragansett Indians absent an express delegation of power to do so from the General Assembly. Id. at 282. But it said nothing whatsoever about the constitutionality of the General Assembly's creation of a Lottery Commission stacked with sitting legislators. In fact, the Court's opinion failed even to mention the Lottery Commission, much less did it pass upon its legality. And unlike the Narragansett Indian case, the issue here is not whether the constitution has vested the General Assembly with the power to regulate lotteries. It clearly has. Rather, the question is whether the General Assembly has exercised its power to regulate lotteries consistent with the constitution's restrictions upon how the Legislature is to exercise this power. On this point, the Narragansett Indian case offers no aid or comfort to the majority because it fails to address this question.
Somehow and in some way as yet to be explained, the critical constitutional distinction between the grant of a plenary legislative power to act with respect to a given subject (here, lotteries) and the *209 structural and procedural limits on how, when, where, who, in what manner, and under what conditions that plenary legislative power can be exercised has been completely lost on the majority of this Court. It is as if, blinded by the bright light thrown off by the constitution's specific vesting of the lottery-regulation power upon the General Assembly, the majority is now unable to discern the constitution's express and implied limitations upon how that power must be exercised. But unless the Court soon recovers its constitutional bearings and finds the courage "to bound the enterprise of [the General Assembly's] ambition * * * [and thereby] to limit the sphere of its activity" to all that the constitution provides, but no more, Taylor, 4 R.I. at 355, its loss of legal vision risks plunging the people of this state into a long, dark age of subjugation to unchecked, unbalanced and unlimited governmental powers exercised by controlling members and subparts of the Legislature notwithstanding a State Constitution that was enacted to prevent such a catastrophe from ever occurring.
In sum, the Legislature's creation of a Lottery Commission dominated by a majority of legislators that then votes to increase the number of VLTs in certain communities without satisfying these constitutional preconditions violates the above-referenced sections of our State Constitution. Therefore, we should affirm the Superior Court's judgment, void the General Assembly's attempt to circumvent these constitutional safeguards, and enjoin the commission's vote to increase the number of VLTs.
Conclusion
The part cannot possibly be greater than the whole. If the whole Legislature cannot regulate and proscribe lotteries without acting bicamerally, without recording its proceedings in a public journal, and without first presenting its legislative acts to the Governor for a possible approval or veto, then how can a part of the Legislature a mere five legislators do so under the guise of acting as "the Lottery Commission?"
For these reasons, and for those set forth in my answers to questions II and III in In re Advisory Opinion to the Governor (Rhode Island Ethics Commission Separation of Powers), 732 A.2d 55, 96-111 (R.I.1999), I would affirm the trial justice's declaratory judgment and remand this case to theSuperior Court for the issuance of a permanent injunction enjoining the Lottery Commission from implementing its vote to increase the number of VLTs.
NOTES
[1] The findings of the trial justice relating to specific delegation of power to the Lottery Commission constituted an accurate summary of the powers and duties of the commission as set forth in § 42-61-2 in respect to lotteries and in § 42-61.2-3 in respect to video lottery terminals.
[2] The General Laws version of the State Constitution indicates that lotteries are subject to the "prescription" and regulation of the General Assembly, but the text of the actual constitutional amendment that the voters approved in 1973 provided for the "proscription" and regulation of lotteries by the General Assembly. Compare R.I. Const. art. 6, sec. 15, provided in G.L. 1956 with Constitutional Convention of Rhode Island 1973, Final Approval (located at C# 00521 of Constitutional Convention Records, 1973 R.I. State Archives Office). But the precise wording of the lottery amendment is immaterial to the outcome in this case. Under either version, the General Assembly is free to proscribe or prescribe state-run lotteries as long as it follows the constitution's restrictions on how it must do so, including passage of lottery laws pursuant to the bicameralism, presentment, and public journal prerequisites to valid legislative action and/or assigning a portion of its responsibility to regulate lotteries to nonlegislative entities and officials but not to some subpart of itself or to an entity controlled by legislators.
[3] See R.I. Const. art. 6, sec. 2 ("[t]he concurrence of the two houses shall be necessary to the enactment of laws") (emphasis added); and art. 9, sec. 14 ("[e]very bill, resolution, or vote * * * which shall have passed both houses of the general assembly shall be presented to the governor [for his or her approval or veto]").
[4] Because our State Constitution contains bicameralism and presentment restrictions similar to those that were first included in the Federal Constitution,
"it is helpful to recall the context that gave rise to the inclusion of bicameralism and presentment in the [Federal] Constitution. Adopted in an era when many had lost confidence in the capacity of (unchecked) legislatures to safeguard liberty and respect law, the constitutional checks of bicameralism and presentment, codified in Article I, Section 7, comprised a key element of the Constitution's scheme to preserve individual liberty. Those requirements serve evident and well-understood purposes, which require only brief mention here. First, by dividing the legislative power between two chambers, bicameralism and presentment make it more difficult for factions to usurp legislative authority, ensuring a diffusion of governmental power and preserving the liberty and security of the governed. In this regard, the division of legislative power into distinct parts effectively operates `to balance interest against interest, ambition against ambition, the combinations and spirit of dominion of one body against the like combinations and spirit of another.' Second, the requirements of [bicameralism and presentment] promote caution and deliberation; by mandating that each piece of legislation clear an intricate process involving distinct constitutional actors, bicameralism and presentment reduce the incidence of hasty and ill-considered legislation. Third, by relying on multiple, potentially antagonistic constitutional decisionmakers, the legislative process prescribed by [bicameralism and presentment] often produces conflict and friction, enhancing the prospects for a full and open discussion of matters of public import." John F. Manning, Textualism As A Nondelegation Doctrine, 97 Colum. L.Rev. 673, 708-09 (1997) (footnotes and citations omitted).
[5] In doing so, the Governor did not seek to acquire nor did he acquire rights before an administrative agency that would preclude a collateral attack on the constitutionality of the Lottery Commission's enabling legislation. Cf. Wellington Hotel Associates v. Miner, 543 A.2d 656, 659 (R.I. 1988) (also citing Easton's Point Association v. Coastal Resources Management Council, 522 A.2d 199 (R.I.1987), in denying a litigant's right to challenge the agency's enabling legislation because it had acquired rights in a proceeding before the agency). On the contrary, the Governor merely lobbied the commission in his capacity as the state's chief executive officer to avoid taking the very acts that he believed were unconstitutional. Thus, in doing so he has not waived any right to challenge either the commission's actions or its enabling legislation because both actions were perfectly consistent with one another.
[6] Although the majority may be correct in stating that former Governor Noel "could [not] be characterized by anyone * * * as a `shrinking violet,'" nevertheless this former chief executive officer of our state soon rued the day when he failed to veto the legislation creating the Lottery Commission. See M. Charles Bakst, "Noel Moves to Take Direct Control of Lottery," The Providence Journal, July 25, 1974, at A1 (quoting Governor Noel as having "declared he made a `mistake' in signing the law establishing the lottery commission").
[7] The commission exercises legislative power insofar as it passes votes, resolutions, and rules that regulate and/or proscribe lotteries. It exercises executive power insofar as it carries out and administers such legislative acts. Thus, the commission's vote expanding the number of video lottery terminals (VLTs) in Newport and Lincoln and its implementation thereof partakes of both powers.
[8] In enacting a constitution that was intended to "bound the enterprise of [the General Assembly's] ambition" and "limit the sphere of its activity," Taylor, 4 R.I. at 355, the framers of Rhode Island's Constitution, like the framers of the Federal Constitution, intended to rescue both the executive and judicial departments "from the eddying current of [the Legislature's] impetuous vortex." Id.
"In monarchical regimes the chief danger arose from the excesses of the crown, but in a republic that distinction necessarily fell to the legislature. Not only did it enjoy the political advantages that flowed from direct popular election, it could also exploit its formal rule-making authority to circumscribe the discretion of the other branches, override particular decisions to which it objected, or use its power of the purse to make the other departments bend to its will. Nor was this concern merely speculative. Experience demonstrated that `[t]he legislative department is everywhere extending the sphere of activity, and drawing all power into its impetuous vortex.'" Jack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 53 (1996) (quoting The Federalist Nos. 37 and 48 (James Madison), and citing Merrill Jensen, et al. eds., The Documentary History of the Ratification of the Constitution, XV, 346, XVI, 4 (Madison, Wis., 1976)).
[9] As one commentator has noted,
"[d]elegation to agencies or courts unlike self-delegation to [legislative] committees or sponsors leaves intact an important structural check on [the Legislature's] power. When [the Legislature] delegates lawmaking authority to an agency or court, it cedes some of its own control over statutory meaning to a distinct branch that, by constitutional design, is independent of [the Legislature]. This feature of the constitutional structure imposes substantial agency costs whenever [the Legislature] delegates a question to a court or an agency, rather than clearly resolving the matter itself. For that reason, it comports with the plan of the Constitution to deny [the Legislature] direct control over the interpretation of its own laws (at least when [the Legislature] does
[10] Apparently, in addition to the Lottery Commission, the only other state government entity whose membership currently consists of a majority of sitting legislators, is Rhode Island's Unclassified Pay Plan Board. G.L. 1956 § 36-4-16 (providing for a seven-member board that includes two state senators and two state representatives).
[11] Austin Powers: The Spy Who Shagged Me (New Line Cinema 1999).
[12] Constitutional Law, § 2-6 at 151 (3d ed. 2000) (quoting Leon Kass, "Implications of Prenatal Diagnosis for the Human Right to Life," in Biomedical Ethics and the Law 327 (James M. Humber & Robert F. Almeder eds., 1976)).
[13] William Shakespeare, Sonnet LXXIII.
[14] Contrary to the majority's assertion, I do not regard the State Constitution "as a mirror image of the Federal Constitution." Rather, our State Constitution is like the Federal Constitution in several respects and unlike it in others. But for the purpose of deciding this case, the likenesses in particular, the bicameralism, the presentment, and the separation-of-powers limitations on the exercise of legislative powers are controlling. Thus, the majority's attribution of a "mirror image theory" to this dissent reflects only a straw-man argument held up to its looking glass.
[15] The word "regulate" is defined as "[t]o fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws." Black's Law Dictionary 1286 (6th ed. 1990). Thus, the lottery amendment gives the General Assembly only the power to enact governing laws and rules pertaining to lotteries, but not to execute these laws or to supervise their administration. See also North American Co. v. Securities & Exchange Commission, 327 U.S. 686, 704, 66 S.Ct. 785, 796, 90 L.Ed. 945, 958 (1946) (defining "regulate" in the context of the Commerce Clause of the Federal Constitution as the power "to prescribe the rule by which commerce is to be governed"), but not to execute or supervise how these laws are administered. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599523/ | 729 So.2d 371 (1999)
Timothy "Pete" SMITH, etc., et al., Appellants,
v.
Donald D. WELTON, et ux., Appellees.
Ernie Mastroianni, etc., et al., Appellants,
v.
Doris L. Boone, Appellee.
Nos. 92,930, 92,973.
Supreme Court of Florida.
January 14, 1999.
Rehearing Denied March 22, 1999.
Robert A. Butterworth, Attorney General and Joseph C. Mellichamp, III, Senior Assistant Attorney General, Tallahassee; and John C. Dent, Jr. and Sherri L. Johnson of Dent & Cook, Sarasota, Florida, on behalf of Timothy "Pete" Smith and Department of Revenue; and Richard A. Mullaney, General Counsel and Lee S. Carlin, Assistant General Counsel, City of Jacksonville, Jacksonville, on behalf of Ernie Mastroianni, Lynwood Roberts and L.H. Fuchs, for Appellants.
Mark Welton of Welton & Williamson, P.A., Crestview, on behalf of Donald D. Welton; and Brent M. Turbow, of Law Offices of Brent M. Turbow, Jacksonville; and Joseph A. Franco, Jr., of Farah, Farah & Gazaleh, P.A., Jacksonville, on behalf of Doris L. Boone, for Appellees.
PER CURIAM.
We have on appeal Smith v. Welton, 710 So.2d 135 (Fla. 1st DCA 1998) (declaring invalid section 193.155(8)(a), Florida Statutes (1995)), and Boone v. Mastroianni, 709 So.2d 192 (Fla. 1st DCA 1998) (citing Smith as controlling authority). We have jurisdiction. Art. V, § 3(b)(1), Fla. Const.
In Smith, the property appraiser in Okaloosa County, "Pete" Smith, determined that he had mistakenly under-assessed for tax *372 purposes 15,000 square feet of improvements to a 19,000 square-foot former school building that served as the homestead for Donald Welton. Smith increased the assessed value of the Welton property from $58,488 in 1994 to $130,645 in 1995. Welton filed a complaint in circuit court protesting the increase, and the court determined that the statute on which the property appraiser relied, i.e. section 193.155(8)(a), Florida Statutes (1995), was unconstitutional. On appeal, the district court affirmed, holding that section 193.155(8)(a) violates article VII, section 4, Florida Constitution, which sets forth guidelines for the taxing of homesteads. See Smith v. Welton, 710 So.2d 135 (Fla.App. 1998). Smith appealed to this Court.
In Mastroianni, the property appraiser in Duval County, Ernie Mastroianni, determined that he had mistakenly undervalued 1034 square feet of improvements to the homestead of a taxpayer, Doris Boone. Mastroianni increased the value of the Boone property from a just value of $62,000 in 1994 to an assessed value of $91,518 in 1995. Boone protested, and the circuit court ruled in favor of Mastroianni, holding that section 193.155(8)(a) is constitutional. Boone appealed, and the district court reversed, citing its Smith decision. See Boone v. Mastroianni, 709 So.2d 192 (Fla. 1st DCA 1998). Mastroianni appealed to this Court, and we consolidated the Smith and Mastroianni cases.
Florida citizens in 1992 amended the Florida Constitution by adopting proposed Amendment 10, which limited ad valorem taxation on homesteads. The amendment, which became effective January 5, 1993, called for the levying of a base year "just value" assessment for each homestead as of January 1, 1994, and the restricting of subsequent increases in assessments to the lower of either (a) three percent of the prior year's assessment, or (b) a percent change in the Consumer Price Index:
SECTION 4. Taxation; assessments. By general law regulations shall be prescribed which shall secure a just valuation of all property for ad valorem taxation, provided:
. . . .
(c) All persons entitled to a homestead exemption under Section 6 of this Article shall have their homestead assessed at just value as of January 1[, 1994]. This assessment shall change only as provided herein.
1. Assessments subject to this provision shall be changed annually on January 1st of each year, but those changes in assessments shall not exceed the lower of the following:
(A) three percent (3%) of the assessment for the prior year.
(B) the percent change in the Consumer Price Index for all urban consumers, U.S. City Average, all items 1967=100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics.
2. No assessment shall exceed just value.
3. After any change of ownership, as provided by general law, homestead property shall be assessed at just value as of January 1 of the following year. Thereafter, the homestead shall be assessed as provided therein.
4. New homestead property shall be assessed at just value as of January 1st of the year following the establishment of the homestead. That assessment shall only change as provided herein.
5. Changes, additions, reductions or improvements to homestead property shall be assessed as provided for by general law; provided, however, after the adjustment for any change, addition, reduction or improvement, the property shall be assessed as provided herein.
6. In the event of a termination of homestead status, the property shall be assessed as provided by general law.
Art. VII, § 4, Fla. Const. (emphasis added). The purpose of the amendment was explained by the district court below:
The purpose of the amendment is to encourage the preservation of homestead property in the face of ever increasing opportunities for real estate development, and rising property values and assessments. *373 The amendment supports the public policy of this state favoring preservation of homesteads. Similar policy considerations are the basis for the constitutional provisions relating to homestead tax exemption (Article VII, Section 6, Florida Constitution), exemption from forced sale (Article X, Section 4(a), Florida Constitution), and the inheritance and alienation of homestead (Article X, Section 4(c), Florida Constitution).
Smith, 710 So.2d at 137 (footnote omitted). In brief, the amendment was designed to ensure that citizens on fixed incomes will not lose their homes on the tax block due to the rising value of Florida property.
In 1994, the legislature enacted legislation implementing Amendment 10. See Ch. 94-353, § 62, at 2567, Laws of Fla. This legislation, which is codified in section 193.155, Florida Statutes (1995), gives the property appraiser authority to rectify an annual assessment that was based on "a material mistake of fact":
193.155 Homestead assessments. Homestead property shall be assessed at just value as of January 1, 1994. Property receiving the homestead exemption after January 1, 1994, shall be assessed at just value as of January 1 of the year in which the property receives the exemption. Thereafter, determination of the assessed value of the property is subject to the following provisions:
. . . .
(8) Erroneous assessments of homestead property assessed under this section may be corrected in the following manner:
(a) If errors are made in arriving at any annual assessment under this section due to a material mistake of fact concerning an essential characteristic of the property, the assessment must be recalculated for every such year.
§ 193.155, Fla. Stat. (1995). In the present cases, the property appraisers assert that section 193.155(8)(a) bestows upon them the authority to reach back and correct an erroneous calculation of the base year "just value" assessment and then apply that corrected value to subsequent years. We disagree.
Section 193.155(8)(a) on its face is inapplicable to the base year assessment set forth in article VII, section 4, Florida Constitution. The statute by its plain language refers to errors in the "annual assessment" (i.e., the value that is ascribed to a homestead each year after the "just value" has been determined in the base year), not errors in the base year "just value" assessment. Nowhere in section 193.155(8)(a) is the base year "just value" assessment even mentioned. By its plain wording, section 193.155(8)(a) thus bestows no authority on a property appraiser to make a retroactive change in the base year assessment.
Accordingly, we hold that Smith and Mastroianni lack authority under section 193.155(8)(a) to retroactively change the base year "just value" assessment of the Smith and Boone properties. We affirm the results in Smith and Boone, but for the reasons stated herein and not those stated in the district court's opinion in Smith.
It is so ordered.
HARDING, C.J., SHAW, WELLS and PARIENTE, JJ., and OVERTON and KOGAN, Senior Justices, concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599528/ | 788 F.Supp. 152 (1992)
PAN TECH MANAGEMENT CORP. and David M. Graham, Plaintiffs,
v.
The UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT and Mark Klein, Defendants.
No. 91-CV-2464 (DRH).
United States District Court, E.D. New York.
April 7, 1992.
James O. Roberson, Jr., New York City, for plaintiffs.
Andrew J. Maloney, U.S. Atty., E.D. N.Y. by Richard K. Hayes, Asst. U.S. Atty., Brooklyn, N.Y., for defendants.
MEMORANDUM AND ORDER
HURLEY, District Judge.
The above-referenced action is before this Court to decide defendants' motion to dismiss the complaint.
*153 I. Background
The complaint in this action arose out of an audit report (the "Report") conducted by the Office of the Inspector General ("OIG") of the United States Department of Housing and Urban Development ("HUD"). The Report reflected a limited review of costs billed by plaintiff Pan Tech to the Town of Babylon ("Babylon"). Babylon had contracted the planning and administrative services for its Community Development Block Grant ("CDBG") Program to plaintiff Pan Tech.
The review revealed that plaintiff Pan Tech overbilled Babylon for overhead expenses and also billed Babylon for ineligible expenses. It further found that Babylon failed to comply with federal regulations by, among other things, improperly procuring Pan Tech's services by failing to provide for full and open competition; including a cost-plus-a-percentage-of-cost feature in the contract; and failing to review Pan Tech's billings to ensure they were reasonable.
As a result, the Report recommended that Babylon be directed to, among other things, establish a competitive bidding process for awarding contracts and periodically review the contractor's accounts. It further recommended that the HUD Commissioner review and make an eligibility determination as to Pan Tech's overhead and salary charges, both of which were apparently in excess of regulatory limits. The Report concluded that Babylon should then reimburse the CDBG grant for any amounts determined to be excessive. In response to these findings, Babylon ceased doing business with Pan Tech.
Plaintiffs' complaint alleges that HUD was negligent in failing to follow the accounting procedures set forth in the Code of Federal Regulations and that defendants intentionally inflicted emotional distress upon plaintiff David Graham, the president of Pan Tech.[1] Defendants assert that the complaint should be dismissed in its entirety for lack of subject matter jurisdiction, failure to name the proper party, and failure to state a claim for relief.
According to defendants, this Court lacks subject matter jurisdiction because plaintiffs have improperly failed to exhaust their administrative remedies pursuant to the Federal Tort Claims Act (the "FTCA"). Plaintiffs do not contest that they are subject to the FTCA and thus must first exhaust administrative remedies, but they claim that they have done so.
For the reasons stated below, the Court finds that plaintiffs have failed to exhaust their administrative remedies. Thus, defendants' motion to dismiss is granted on the ground of lack of subject matter jurisdiction. The Court does not address defendants' other grounds for dismissal, nor does the Court have the jurisdiction to do so.[2]
II. Discussion
Absent a waiver of immunity, the United States cannot be sued in tort. Partial waiver, as found in the Federal Tort Claims Act (the "FTCA"), exists wholly by virtue of congressional consent. The partial waiver specifically fixes the conditions pursuant to which a suit may be instituted. The controlling provision is 28 U.S.C. § 2675(a), which reads in pertinent part as follows:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim *154 shall have been finally denied by the agency in writing.
28 U.S.C. § 2675(a). Thus, a claimant must seek administrative review prior to filing an action in federal court under the FTCA.
The impetus behind the exhaustion requirement is to "avoid unnecessary litigation by enabling the Government to promptly evaluate and investigate claims for early settlement at the administrative level." Hartford Accident & Indemnity v. United States, 720 F.Supp. 258, 260 (E.D.N.Y.1989) (citing Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir.), cert. denied, 464 U.S. 864, 104 S.Ct. 195, 78 L.Ed.2d 171 (1983)). For this reason, and because the FTCA is a waiver of sovereign immunity, the notice of claim that must be filed to begin the administrative review process must be strictly construed. See Keene Corp., 700 F.2d at 841 (citations omitted); Hartford Accident, 720 F.Supp. at 260 (citations omitted).
In order to satisfy the notice requirement, a claim which is presented to the relevant government agency, in this case HUD, must provide the agency with "sufficient information both to permit an investigation and to estimate the claim's worth." Keene Corp., 700 F.2d at 842. The requirement that the agency have notification of the damages sought is embodied in 28 C.F.R. § 14.2(a), which states that "a claim shall be deemed to have been presented when a Federal agency receives from a claimant ... [written notification of an incident], accompanied by a claim for money damages in a sum certain ... [for injury] alleged to have occurred by reason of the incident."
In support of their position that they properly notified HUD of their claims and thus exhausted their administrative remedies, plaintiffs cite to a series of interactions and communications involving HUD and Babylon. Specifically, plaintiffs submit that they presented their claims at a January 14, 1991 exit conference with HUD; that they submitted a forty-seven page letter outlining errors in the HUD report; that they requested that HUD not release a final version of the report until they could respond; and that HUD notified them on March 29, 1991 of the "resolution of this administrative matter."
Viewing plaintiffs' representations regarding these communications in a light most favorable to them, the Court nonetheless finds that they did not provide HUD with a sufficient basis for investigating the nature and extent of the claims presently before this Court. Not only do these communications fail to reflect plaintiffs' claims of emotional distress or negligence, but none of them contains a claim to HUD for a sum certain. This latter ground alone is enough to establish that notice to the agency was insufficient. See Adams v. United States Dep't of Housing & Urban Dev., 807 F.2d 318, 321 (2d Cir.1986). The Court thus finds that plaintiffs have failed to exhaust administrative remedies and that the Court lacks subject matter jurisdiction over this action.
Plaintiffs have asked that, at a minimum, the Court stay this proceeding until plaintiffs take the necessary steps to exhaust their administrative remedies. Because the exhaustion requirement is a jurisdictional requisite to the filing of an action under the FTCA, the Court has no authority to stay this proceeding and denies plaintiffs' request.
CONCLUSION
For the foregoing reasons, the above action is dismissed for lack of subject matter jurisdiction.
SO ORDERED.
NOTES
[1] Plaintiffs have agreed that their second, third and fourth claims for relief, based on defamation, are barred by the Federal Tort Claims Act. Accordingly, these claims are not at issue in the instant motion.
[2] Defendants ask that the Court dismiss this action with prejudice on the ground that plaintiffs fail to state a claim as a matter of law. However, in light of the Court's finding that it lacks subject matter jurisdiction to hear this action, it cannot address the merits of plaintiff's claims. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599503/ | 788 F. Supp. 627 (1992)
Margaret BOYLE, Plaintiff,
v.
BOSTON FOUNDATION, INC. and Anna Faith Jones, Defendants.
Civ. A. No. 90-12648-N.
United States District Court, D. Massachusetts.
April 13, 1992.
*628 Kevin G. Powers, Boston, Mass., for plaintiff.
Arthur W. Young, III, Gary J. Oberstein, Hutchins & Wheeler, Boston, Mass., for defendants.
ORDER
DAVID S. NELSON, District Judge.
Plaintiff has filed suit alleging age discrimination in violation of federal (Count I) and state (Count II) law. She also brought state law claims of intentional interference with contractual relationships (Count III) and intentional infliction of emotional distress (Count IV). The matter was referred to Magistrate Judge Collings for a recommendation on the defendants' motion for partial summary judgment on Count II and motion to dismiss Counts III and IV.
On January 27, 1992, in a Report and Recommendation (the "Report"), Magistrate Judge Collings issued his findings on each motion. As to Count II, the magistrate judge found that the defendant Boston Foundation, as a charitable organization, had limited liability. He recommended that partial summary judgment be granted to the defendant Boston Foundation to the extent that the possible recovery be limited to $20,000 exclusive of interests and costs. As to Count III, Magistrate Judge Collings found that the grounds presented by the defendant Anna Faith Jones ("Jones") were insufficient to warrant dismissal pursuant to Fed.R.Civ.P. *629 12(b)(6). He recommended denial of the motion to dismiss Count III. As to Count IV, although presented as a motion to dismiss, the magistrate judge treated the matter as a motion for summary judgment. He found no factual dispute that the acts which formed the basis of the complaint were conducted in the course of the employment. Therefore, recovery was limited to the remedies provided by the Workmen's Compensation Act. Magistrate Judge Collings recommended that summary judgment be granted to defendant Jones on Count IV.
Having reviewed the magistrate's recommendations, as well as the submission of the parties, and there being no opposition thereto, this court agrees with the magistrate judge's Report as to each count. Accordingly, this court ALLOWS and ADOPTS the findings and recommendations of the magistrate judge. Therefore, partial summary judgment is GRANTED to defendant Boston Foundation on Count II to the extent that the possible recovery is limited to $20,000 exclusive of interests and costs. Defendant Jones' motion to dismiss Count III is DENIED. Count IV is treated by this court as a motion for summary judgment and summary judgment is GRANTED to defendant Jones on that claim.
SO ORDERED.
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO COUNT II AND TO DISMISS COUNTS III AND IV (# 10)
COLLINGS, United States Magistrate Judge.
INTRODUCTION
In her Complaint (# 1), the plaintiff, Margaret Boyle (hereinafter, "Boyle"), brings claims under the federal statute prohibiting age discrimination (Count I) and the state antidiscrimination statute, M.G.L.A. Chapter 151B (Count II) against the Boston Foundation. She also asserts claims under state law of interference with contractual relationships (Count III) and intentional infliction of emotional distress (Count IV) against Anna Faith Jones (hereinafter, "Jones"). Jones is alleged to be President and CEO of the Boston Foundation.
In their motion for partial summary judgment and dismissal, the Boston Foundation seeks summary judgment as to any claims for damages in Count II exceeding $20,000 pursuant to M.G.L.A. Chapter 231, § 85K and Jones seeks dismissal of Counts III and IV in their entirety.
The motion has been referred to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
DISCUSSION
Boyle was employed by the Boston Foundation until 1989 at which time she was sixty-two years of age. Jones had been her supervisor until 1989. Boyle resigned on August 11, 1989; she alleges that she was compelled to resign because of harassment by Jones which was motivated by Boyle's age.
The Boston Foundation is a public charity organized under M.G.L.A. Chapter 180. As such, it claims that recovery against it on the state discrimination claim is limited to $20,000 in the aggregate pursuant to M.G.L.A. Chapter 231, § 85K. This argument is meritorious and not seriously opposed by Boyle at least on the current state of the law. I shall recommend that the motion be allowed to the extent that recovery on Count II be limited to $20,000 exclusive of interest and costs.
The claim against Jones in Count III that Jones intentionally interfered with contractual relations concerns the contract of employment between Boyle and her employer, the Boston Foundation. The elements of this tort under Massachusetts law are: (1) that Boyle had a contract with a third party, i.e., the Boston Foundation, (2) Jones knowingly and improperly induced a third party, i.e., the Boston Foundation, to break the contract, and (3) Boyle was harmed by Jones' actions. United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812, 551 N.E.2d 20, 21 (1990).
*630 Jones argues first that since Boyle resigned from her employment, the Boston Foundation did not break the contract and, therefore, Boyle is unable to prove as essential element of the tort, i.e., that the Boston Foundation breached its contract with her. Second, Jones asserts that as President and chief executive officer of the foundation, she at all times acted for the foundation. Accordingly, she argues that as to her, the foundation is not a third party and, therefore, Boyle's claim fails for failure to state a claim.
With respect to the first point, Boyle responds that it is not a necessary precondition to liability that interference be such as to cause the third party, in this case the Boston Foundation, to break the contract. Rather, Boyle contends that liability can attach if the wrongdoer, i.e., Jones, interfered with the contract between Boyle and the Boston Foundation in such a way as to prevent her (Boyle) from performing the contract or causing her (Boyle's) performance to be more burden-some. See Restatement of Torts, § 766A. Jones responds that this variant of the tort has never been recognized in Massachusetts. However, Jones cites no case or authority indicating that if faced with the question, the Supreme Judicial Court would not approve of this variant of the tort.
I note that there is certainly a hint in the case of Anzalone v. Massachusetts Bay Transportation Authority, 403 Mass. 119, 526 N.E.2d 246 (1988) that intentional acts by a supervisor which caused an employee to resign would be sufficient to state a claim of intentional interference. Anzalone's problem was that at the time he brought the suit, he was still employed by the MBTA. The Court wrote:
Anzalone's complaint does not allege that he was terminated, or that he separated from, or resigned from the MBTA. There is no allegation of any "loss of advantages, either of property or of personal benefit, which, but for [the supervisor's] interference, the plaintiff would have been able to attain or enjoy." Walker v. Cronin, supra [107 Mass. 555] at 565 [1871]. Because Anzalone's complaint failed to allege any actual damage or loss, the judge properly dismissed the claim against [the supervisor].
Anzalone v. Massachusetts Bay Transportation Authority, supra, 403 Mass. at 123, 526 N.E.2d at 249 (emphasis supplied).
Accordingly, I do not think that Jones' first ground for dismissal of Count III is meritorious.
In support of her second argument to dismiss Count III, Jones cites the following dicta from the opinion of the Appeals Court in Schinkel v. Maxi-Holding, Inc., 30 Mass.App.Ct. 41, 50, 565 N.E.2d 1219, 1225 (1991) in which the Court wrote:
The fourth count seems to set out a claim for relief only against Cederberg implicitly (and correctly) recognizing that Maxi cannot be guilty of tortious interference with its own contract. See Gram v. Liberty Mutual Insurance Co., 384 Mass. 659, 663 n. 3, 429 N.E.2d 21 (1981); Riseman v. Orion Research Inc., [394 Mass.] 311, 314, 475 N.E.2d 398 (1985). Conceivably, one in the position of chief executive officer, such as Cederberg, might be so closely identified with the corporation itself, and with its policies, that he should not be treated as a third person in relation to corporate contracts, susceptible to charges of tortious interference when he causes the corporation to breach its contractual obligations. The point is not argued, however, and should not be considered in any event on the bare allegations of the complaint. Compare Bishara v. Brown, Daltas & Assocs, 21 Mass.App.Ct. 941, 943-4, 486 N.E.2d 761 (1985).
While the problem discussed in the Schinkel case is certainly of interest, the Court's language cannot support a motion to dismiss, especially since that the Massachusetts Appeals Court itself had earlier held that an officer of a corporation may be liable for interfering with an employment contract between an employee and the corporation. Steranko v. Inforex, 5 Mass. App. 253, 272-3, 362 N.E.2d 222, 235-6 (1977). In these circumstances, dismissal is not warranted.
*631 In sum, I shall recommend that the motion to dismiss Count III be denied.
In Count IV, Boyle charges Jones with intentional infliction of emotional distress. Jones claims that any acts which form the basis of this claim occurred within the scope of Boyle's employment, and, therefore, recovery is limited to the remedies provided by the Workmen's Compensation Act.
"[A] suit for an intentional tort in the course of the employment relationship is barred by the exclusivity provision of the Workmen's Compensation Act ..." Anzalone v. Massachusetts Bay Transportation Authority, supra, 403 Mass. at 124, 526 N.E.2d at 249 citing Foley v. Polaroid Corporation, 381 Mass. 545, 550, 413 N.E.2d 711 (1980). However, "... an employee is not barred from bringing an action against a fellow employee who commits an intentional tort which `was no way within the scope of employment furthering the interests of the employer.'" Anzalone v. Massachusetts Bay Transportation Authority, supra, 403 Mass. at 124, 526 N.E.2d at 249 citing O'Connell v. Chasdi, 400 Mass. 686, 690, 511 N.E.2d 349 (1987). See also Tenedios v. Wm. Filene's Sons Co., Inc., 20 Mass.App.Ct. 252, 479 N.E.2d 723 (1985).
Thus, the issue is plainly drawn were Jones' acts which form the basis of the intentional tort against Boyle within the scope of her employment furthering the interests of her employer, the Boston Foundation?
This being the issue, it is strange that Jones seeks to dismiss Count IV rather than seeking summary judgment. In resolving the issue, the Court plainly has to refer to pleadings beyond the complaint. The question then becomes whether the motion to dismiss Count IV should be converted to a motion for summary judgment, and if so, has Boyle received "... reasonable opportunity to present all material made pertinent to such motion pursuant to Rule 56." Rule 12(b), Fed.R.Civ.P.
In my judgment, the motion should be treated as one for summary judgment and Boyle has received adequate opportunity to present pertinent material. All of the facts relating to this issue are before the Court, and Boyle has not made any argument that the Court should not decide the issue on the basis of what has been presented.
After a review of all the materials in the light most favorable to Boyle, I am convinced that the undisputed facts reveal that the acts allegedly perpetrated by Jones which constitute the tort were done in the course of the employment relationship and furthered the interests of the employer. There is simply no evidence to the contrary.
Boyle does not seem to dispute the conclusion that the acts were done in the course of the employment. Rather, she argues that the acts are alleged to have been acts of unlawful discrimination and thus could not have been in furtherance of the employer's interest. Put another way, her position is that if the motive for the intentional infliction of emotional distress is an illegal one, such as age discrimination, the Workmen's Compensation Act will never bar the suit against the offending officer or employee.
No case is cited for this proposition, and I do not believe it is meritorious. While the motive of the offending party may be relevant in determining the question of scope of employment, as in the case of O'Connell v. Chasdi, supra, an illegal motive will not automatically bring an intentional tort claim out of the class of those torts barred by the Workmen's Compensation Act. The key remains whether the acts of the offending employer or agent were in the course of the employment relationship and purportedly in furtherance of the employer's interest. There is no factual dispute that in this case they were. If the acts constituted age discrimination, an action may be brought under federal and state statutes against both the employer and any agent of the employer who perpetrated the acts, and such an action is not barred the Workmen's Compensation Act.
Accordingly, I shall recommend that summary judgment be granted to Jones on Count IV of the Complaint.
*632 RECOMMENDATIONS
I RECOMMEND that partial summary judgment be granted to the defendant Boston Foundation on Count II to the extent that the possible recovery be limited to $20,000 exclusive of interests and costs. I RECOMMEND that the motion to dismiss Count III pursuant to Rule 12(b)(6), Fed. R.Civ.P., be DENIED. I RECOMMEND that the motion to dismiss Count IV be treated as a motion for summary judgment, and that summary judgment be granted to the defendant Jones on Count IV.
The file is RETURNED to the Clerk's Office.
REVIEW BY THE DISTRICT COURT
The parties are hereby advised that under the provisions of Rule 3(b) of the Rules for United States Magistrates in the United States District Court for the District of Massachusetts, any party who objects to this report and these recommendations must file a written objection thereto with the Clerk of this Clerk within 10 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has indicated that failure to comply with this rule shall preclude further appellate review. See Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1 Cir., 1980); United States v. Vega, 678 F.2d 376, 378-379 (1 Cir., 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1 Cir., 1983). See also Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599559/ | 3 So. 3d 638 (2009)
Dana PATIN
v.
EVANGELINE DOWNS OF LOUISIANA, INC.
No. CA 2008-988.
Court of Appeal of Louisiana, Third Circuit.
February 4, 2009.
Alex L. Andrus, III, Guglielmo, Lopez, Tuttle, Hunter & Jarrell, L.L.P., Opelousas, LA, W. Glenn Soileau, Attorney at Law, Breaux Bridge, LA, for Plaintiff/Appellee, Dana Patin.
John W. Madison, Jr., Amanda E. Waddell, Wiener, Weiss, & Madison, Shreveport, LA, John S. Campbell, III, Matthew L. Mullins, Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Defendant/Appellant, The Old Evangeline Downs, L.L.C.
Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, ELIZABETH A. PICKETT, and BILLY HOWARD EZELL, Judges.
EZELL, Judge.
At issue in this appeal is the temporal element of La.R.S. 9:2800.6. Evangeline Downs of Louisiana, Inc. appeals a trial court judgment which found that it had constructive notice of a beet on the floor of *639 its buffet restaurant, which caused Dana Patin to fall and injure herself. For the following reasons, we affirm.
FACTS
On Friday evening, July 16, 2004, Dana Patin and her family went to the Cajun Buffet at Evangeline Downs Racetrack and Casino. After waiting for fifteen to thirty minutes, they were finally seated. Ms. Patin served herself and her two daughters. She then went back to the vegetable line to get some tartar sauce. As she turned to go back to her table, her left foot slipped out from under her. Her left arm hit the granite counter top, and her left knee hit the floor. A lady helped her get up. Ms. Patin noticed a beet on the floor after she fell. Ms. Patin returned to her table. Her knee was bleeding, and a bruise later appeared on her left arm.
A busboy noticed the incident and notified the manager on duty, Chris Melancon. He came to check on Ms. Patin. Later, a security guard, Lisa Poole, came to talk to Ms. Patin. She took Ms. Patin to an office where a report was filled out.
On the way home, Ms. Patin's left leg began to really hurt. Ms. Patin sought medical treatment, and eventually, surgery was performed on her back.
The case was tried before a judge on February 26, 2008. Applying La.R.S. 9:2800.6, the trial judge found that Ms. Patin had established that Evangeline Downs had constructive notice of the beet on the floor. Judgment was signed on March 4, 2008, awarding total damages in the amount of $304,956.84. Evangeline Downs filed the present appeal claiming that the trial court erred in finding it had constructive notice of the beet. Damages are not at issue.
CONSTRUCTIVE NOTICE
Evangeline Downs argues that Ms. Patin has failed to produce any evidence concerning the amount of time the beet was on the floor. It contends that she has not satisfied the temporal element of La.R.S. 9:2800.6 and has failed to carry her burden of proof.
Louisiana Revised Statutes 9:2800.6 sets forth the burden for proving a claim against a merchant for injury caused by a fall that occurs on the merchant's premises. The statute specifically defines constructive notice as follows:
"Constructive notice" means the claimant has proven that the condition existed for such a period of time that it would have been discovered if the merchant had exercised reasonable care. The presence of an employee of the merchant in the vicinity in which the condition exists does not, alone, constitute constructive notice, unless it is shown that the employee knew, or in the exercise of reasonable care should have known, of the condition.
La.R.S. 9:2800.6(C)(1).
In White v. Wal-Mart Stores, Inc., 97-393, p. 1 (La.9/9/97), 699 So. 2d 1081, 1082, the supreme court discussed the temporal element of the constructive notice definition and held that a claimant must "come forward with positive evidence showing that the damage-causing condition existed for some period of time, and that such time was sufficient to place the merchant defendant on notice of its existence." This temporal element can be established by circumstantial evidence. Blackman v. Brookshire Grocery Co., 07-348 (La.App. 3 Cir. 10/3/07), 966 So. 2d 1185; Cohen v. Brookshire Brothers, Inc., 04-916 (La.App. 3 Cir. 11/10/04), 887 So. 2d 681, writ denied, 04-3041 (La.2/18/05), 896 So. 2d 38; Henry v. Wal-Mart Stores, Inc., 99-1630 (La. App. 3 Cir. 3/1/00), 758 So. 2d 327, writ *640 denied, 00-929 (La.5/26/00), 762 So. 2d 1107. The trier of fact's finding that the plaintiff established the temporal element of constructive notice is subject to the manifest error/clearly wrong standard of review. Id.
The evidence was clear that Friday nights at the Cajun Buffet were the busiest because it was a seafood buffet. The buffet area seats about 275 people. This was established by the testimonies of Mr. Melancon and Ms. Poole in addition to Freida Carmouche, a buffet server. They all testified that food would spill on the floor.
At the time of the accident, Mr. Melancon had been a shift supervisor in the buffet for seventeen days. He testified that it was usually the bussers' job to keep the floor clean but everybody is supposed to watch for food on the floor on Friday nights. Mr. Melancon also testified that it was not uncommon to be shorthanded on weekends and, on this particular night, he was short one cashier, one server, and one busser.
Both Mr. Melancon and Ms. Carmouche testified that there were training and procedures in place about picking up spills immediately. Mr. Melancon remembered security telling him to check the floors every forty-five minutes, especially on Friday nights. However, he does not remember if inspections of the floor occurred on the night of Ms. Patins' fall. He further testified that it could have been as long as one hour and forty-five minutes before the floor was inspected on Friday night. Mr. Melancon was of the opinion that there needed to be more staff on Friday nights due to the high volume of customers.
There was also testimony that there were mats by the cashiers' station, the entrance into the busing area, and by the ice cream stand. However, there were no mats next to the buffet line. The floor near the buffet line was a tile floor.
In ruling that Ms. Patin established Evangeline Downs had constructive notice of the beet on the floor, the trial judge found that an hour to an hour and forty-five minutes was an inadequate amount of time before an inspection was made. He also considered the lack of staff which contributed to the lack of adequate inspections.
Given the testimony at trial, we cannot say the trial judge's conclusion was manifestly erroneous. It is clear that, on this particular night, the buffet was extremely busy. Food would obviously be spilled on the floor, and we agree with the trial judge that an hour and forty-five minutes is an extremely long time to wait in between inspection of the floors. Ms. Patin clearly met her burden of proof that the beet was on the floor for an unreasonable amount of time. We do not agree that Ms. Patin has to actually show how long this particular beet was on the floor. If that was so, then there would be no need for constructive knowledge. Ms. Patin has established that inspection procedures on this particular Friday night in addition to an inadequate staff contributed to food remaining on the floor longer than reasonable.
For the above reasons, we affirm the ruling of the trial court. All costs of this appeal are assessed to Evangeline Downs of Louisiana, Inc.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599554/ | 571 So. 2d 746 (1990)
STATE of Louisiana, Appellee,
v.
Thomas Larry SMITH, Sr., Appellant.
No. 21941-CA.
Court of Appeal of Louisiana, Second Circuit.
December 5, 1990.
David F. Baughn, Sp. Asst. Dist. Atty., Tallulah, for appellee.
Raymond Lee Cannon, Tallulah, for appellant.
Before MARVIN, C.J., and FRED W. JONES, Jr. and NORRIS, JJ.
*747 NORRIS, Judge.
The state sued Thomas L. Smith Sr. to enforce child support by collecting AFDC benefits that his two minor children, Emily A. and Thomas L. Smith Jr., had received. La.R.S. 46:236.1. Smith defended by asserting that his parental rights had been terminated in prior judicial proceedings in Jefferson Parish. La.R.S. 13:1601-13:1604. The trial court rendered judgment in favor of the state for all accrued AFDC payments and fixing child support at $156. per month. Smith now appeals. For the reasons expressed, we reverse and dismiss the state's suit.
The state's petition, filed May 18, 1987 in Tensas Parish, alleged that Smith's minor children were living with their mother, who is drawing AFDC on their behalf. It also alleged that Smith was under a court order to pay child support of $125. per week but he had not paid it since April 1987. The child support judgment was neither attached to the petition nor described by court and docket number; it was not introduced in evidence or even referred to at trial. The petition prayed for judgment in accordance with the prior judgment and, in effect, for an income assignment.
Smith responded by filing in the record a personal letter to the trial judge. He stated that his parental rights had been terminated by judgment of the juvenile court in Jefferson Parish in November 1985. Smith did not file a formal answer prior to trial.
When the matter came up for trial in December 1988, Smith was represented by counsel. The state introduced as Exhibit S-1 a handwritten minute entry in a matter styled, "In the Interest of Emily A. Smith and Thomas L. Smith Jr.," in the Juvenile Court of Jefferson Parish dated September 9, 1986 and a printed minute entry from the same court dated January 26, 1987. The assistant D.A. argued that there was no signed judgment of termination of parental rights and thus no basis to find that Smith's parental rights were indeed terminated. Smith's attorney stated he was "shocked" that there was no signed judgment. The sides produced evidence of how much AFDC money the children had received since May 1987 and of Smith's income. Smith testified that after the trial judge ruled that his parental rights were terminated in the Jefferson Parish proceedings, his court-appointed attorney told him that he owed no child support. At the end of the instant trial, Smith's attorney asked for the record to be left open so he could file a response; this request was granted.
Smith's attorney then filed a formal answer asserting the affirmative defenses of estoppel, res judicata and equitable estoppel. The defenses were based on the alleged Jefferson Parish judgment that terminated Smith's parental rights. However, the judgment of termination was not attached to the answer.
The trial resumed in November 1989. Smith introduced as Exhibit D-1 a certified copy of court minutes, identical to Exhibit S-1. These recite that the state's petition for termination of parental rights was taken up on September 9, 1986; that Smith, the father, was present with court-appointed counsel; evidence was adduced; and the trial judge ordered that Smith's parental rights as to the two children "be and are irrevocably terminated." The D.A. was ordered to submit a judgment in accordance with the ruling. Also part of Exhibit D-1 was a letter from the clerk of the juvenile court. This letter states that the D.A. had "neglected to submit a judgment" as ordered but "there is no question as you can clearly see from the court entry that the termination took place." Smith reiterated that at the conclusion of the Jefferson Parish hearing, he had his attorney inquire about child support; the attorney reported that Smith would no longer owe it.
Ruling from the bench, the judge did not address whether the state was equitably estopped from seeking to enforce child support. She fixed the arrears at $5,634., to be paid monthly, and set child support at $156. per month, both to be paid by income assignment. Smith appeals devolutively, urging by three assignments that the court erred in:
(1) failing to apply equitable estoppel or res judicata to bar this action, and
*748 (2) imposing an excessive award of child support.
Smith argues that when the Jefferson Parish court terminated his parental rights, this meant "permanent elimination of all parental rights and duties including residual parental rights." La.R.S. 13:1600(4). Residual parental rights include the responsibility of support under R.S. 13:1600(5); this would supersede codal provisions for support of children such as La.C.C. arts. 227-231. The state concedes that a final judgment terminating Smith's parental rights would defeat this action to enforce support. State's brief, 3.
The state argues, however, that there is no valid, final judgment of termination of parental rights. The state's position is correct to an extent. There is no signed judgment, only a minute entry, and a minute entry does not constitute a final judgment. Fisher v. Rollins, 231 La. 252, 91 So. 2d 28 (1956); Mestayer v. Mestayer, 302 So. 2d 342 (La.App. 3d Cir.1974). A final judgment is usually essential to support the defenses of res judicata or judicial estoppel. La.R.S. 13:4231; California Co. v. Price, 234 La. 338, 99 So. 2d 743 (1957); Morris v. Morris, 336 So. 2d 254 (La.App. 1st Cir.1976). The common law concept of judicial estoppel is no longer applicable in Louisiana. Doyle v. State Farm (Mut.) Ins. Co., 414 So. 2d 763 (La.1982); Ugulano v. Allstate Ins. Co., 367 So. 2d 6 (La.1978).
Even in the absence of a final judgment in the suit to terminate parental rights, however, equitable considerations militate against enforcing the instant judgment against Smith. Equitable estoppel is defined as the effect of the voluntary conduct of a party by which he is barred from asserting rights or defenses against another party justifiably relying on such conduct and causing him to change his position to his detriment as a result of such reliance. There are three elements of estoppel:
(1) a representation by action or word;
(2) justifiable reliance on the representation; and
(3) a change in position to one's detriment because of such reliance.
Wilkinson v. Wilkinson, 323 So. 2d 120 (La.1975); American Bank & Trust Co. v. Trinity Univ. Ins. Co., 194 So. 2d 164 (La. App. 1st Cir.), affirmed 251 La. 445, 205 So. 2d 35 (1967); First Fed'l Sav. & Loan v. American Bank & Trust, 461 So. 2d 341 (La.App. 2d Cir.1984).
The doctrine was analyzed in civil law terms in Burk v. Livingston Parish Sch. Bd., 190 La. 504, 182 So. 656 (1938), as unjust enrichment under former Civil Code art. 1965 and under the civilian concept that one cannot both accept the benefits of an act and repudiate its obligations. See also Lilly v. Angelo, 523 So. 2d 899 (La. App. 4th Cir.), writ denied 526 So. 2d 1120 (1988).
Smith has proved every element of equitable estoppel in this case. First, the state brought him to court in Jefferson Parish, called expert witnesses, marshalled the force and authority of the judicial process and obtained an oral decree that his parental rights were irrevocably terminated. Even though the state ignored the juvenile court's order and did not reduce the ruling to a final, written judgment, it successfully represented by action and word that Smith had no further parental rights. Second, Smith was justified in relying on this representation, coming as it did under color of due process; with the aid of court-appointed counsel he had contested the evidence against him, lost and heard the oral decree terminating his parental rights. Two attorneys told him the effect of the ruling was to relieve him of responsibility for child support. Finally, on the basis of the representation and reliance Smith stopped making child support payments. This was obviously detrimental to him if he in fact owed support; by the time of trial, it was detrimental to the extent of $5,634.
For the state to sue Smith and successfully terminate his parental rights, and then three years later to sue him again and successfully collect child support would be an unconscionable result. The state obtained the benefit of protecting two minor children from an alleged child abuser. One of the consequences of termination is to *749 absolve the parent of the responsibility of support under R.S. 13:1600(4) and (5); as a result the state must shoulder this obligation in the form of AFDC or other payments. However, when the state brought the instant action against Smith it was attempting to escape the obligations of its own act. Clearly the state cannot accept the benefit of severing Smith's parental rights and then repudiate the obligation of supporting them in his stead.
We are sensitive to the fact that equitable estoppel is not favored by the law. Howard Trucking Co., Inc. v. Stassi, 485 So. 2d 915 (La.1986), cert. denied 479 U.S. 948, 107 S. Ct. 432, 93 L. Ed. 2d 382 (1986); Wiley v. Richland Parish Sch. Bd., 476 So. 2d 439 (La.App. 2d Cir.1985). Because equitable estoppel bars the normal assertion of rights, it must be applied only in clear cases and where necessary to prevent injustice. Zemurray v. Boe, 235 La. 623, 105 So. 2d 243 (1958); Shirey v. Campbell, 151 So. 2d 557 (La.App. 2d Cir.1963); Twillie v. H.B. Zachry Co., 380 So. 2d 747 (La.App. 4th Cir.1980). The instant case would not require the application of equitable estoppel if Smith could produce a final, written judgment. There is, however, no judgment; Smith has shown and the state has not refuted that the state itself was responsible for failure to obtain one. The court minutes recite that Judge Gothard ordered the D.A. to submit a judgment for signature; the state should not be able to profit from its neglect and pursue Smith twice.
On this record Smith has shown that after the state caused him to believe that his parental rights were terminated, he reacted reasonably and to his detriment. Even without a final judgment of termination, equitable estoppel bars the instant suit to enforce child support.
The trial court therefore erred in failing to apply the affirmative defense of equitable estoppel. The judgment is reversed and the state's suit to enforce support obligations against Thomas L. Smith Sr. is dismissed. Costs are not assessed. La. R.S. 13:4521.
JUDGMENT REVERSED; CASE DISMISSED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1922336/ | 756 A.2d 1076 (2000)
In the Matter of Ahmad MOSSAVI, M.D., Petitioner.
Superior Court of New Jersey, Chancery Division, Monmouth County.
Decided June 9, 2000.
Kern Augustine Conroy & Schoppmen, P.C., Bridgewater (Bonnie M. Weir, Esq., *1077 appearing), attorneys for petitioner Ahmad Mossavi, M.D.
Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, Roseland (Joseph M. Gorrell, Esq., appearing), attorneys for respondent Riverview Medical Center.
FISHER, P.J.Ch.
I
THE ISSUE PRESENTED
Petitioner Ahmad Mossavi ("Mossavi") is involved in an internal administrative hearing examining Riverview Medical Center's ("the hospital") denial of his reappointment to its medical staff. He seeks this court's aid in securing, through the issuance of subpoenas, the appearance of two witnesses at the hearing. Because his right to "call and examine" witnesses guaranteed by the hospital's bylawscan be vindicated in no other effective way, the subpoenas will issue.
II
THE FACTUAL AND PROCEDURAL SETTING
Mossavi had been on the hospital's medical staff since 1997. His privileges were suspended on December 9, 1999 because of allegations he sexually harassed several women employed by the hospital. On January 4, 2000 the hospital's medical executive committee denied Mossavi's application for reappointment. As a result, Mossavi demanded an internal hearing to review the committee's recommendation. A fair hearing panel ("the panel") was assembled and a hearing officer appointed in accordance with the hospital's bylaws.
The panel heard the testimony of the complaining witnesses on March 28, 2000, and additional testimony on April 10 and May 1, 2000. On the latter two hearing dates, Mossavi indicated a desire to offer the testimony of S.K., J.F. and C.H.[1] On May 1, S.K. was, according to the petition, "prepared to testify that she was told by a close personal friend of one of the complaining witnesses that the allegations against Dr. Mossavi were fabricated and it was nothing more than a scam." Petition, ¶ 13. The hearing officer found this testimony to be inadmissible hearsay and excluded it. Mossavi contends, however, that J.F. and C.H., unlike S.K., had direct conversations with one of the complaining witnesses which would demonstrate the falsity of the allegations. The hearing officer agreed to adjourn the hearing to provide Mossavi with an opportunity to seek whatever relief might be available from this court.
The hospital concedes that its bylaws charge the hearing officer with the obligations to (1) preside over the hearing to determine the order of procedure, (2) assure that all participants have a reasonable opportunity to present relevant evidence, (3) maintain decorum and (4) provide legal advice to the committee both during the hearing and deliberations. Notwithstanding, without this court's intervention, Mossavi's ability to secure the attendance of witnesses before the panel is dependent upon whether the witnesses will voluntarily appear. The bylaws do not expressly authorize any party to issue a subpoena or even to apply to an appropriate court for the issuance of a subpoena. The bylaws do, however, indicate that "affected individuals," such as Mossavi, are entitled, among other things, to "call and examine witnesses on any matter relevant to any issue in the hearing." Gorrell Certification, Exhibit A (Medical and Dental Staff Bylaws, ¶ 10.6(d)).
As mentioned above, Mossavi alleges that two individualsJ.F. and C.H.had conversations with certain of his accusers, the substance of which might support his *1078 contention that the harassment allegations are false. J.F. and C.H., however, have demonstrated an unwillingness to voluntarily appear at the hearing.[2] Accordingly, Mossavi has sought, through the filing of a petition with this court on May 12, 2000, the issuance of subpoenas. To bring the issue to a rapid resultsince the hearing has been adjourned by the hearing officer pending the resolution of this action[3]the court also then entered an order to show cause returnable today.
III
LEGAL ANALYSIS
The hospital's opposition centers on two theories. First, the hospital believes the granting of relief would be contrary to Mossavi's obligation to exhaust his administrative remedies. Second, the hospital suggests this court's consideration of Mossavi's complaint fails to show proper deference to internal hospital proceedings as required by numerous Supreme Court decisions. Both contentions are without merit, but a third issue, not raised by the parties, is troubling and will be considered after the hospital's contentions are discussed.
A. Exhaustion of Administrative Remedies
It is beyond question that the exhaustion doctrine will not be violated through the granting of the relief sought. As the hospital recognizes, the "doctrine of exhaustion of administrative remedies serves three primary goals: (1) the rule ensures that claims will be heard, as a preliminary matter, by a body possessing expertise in the area; (2) administrative exhaustion allows the parties to create a factual record necessary for meaningful appellate review; and (3) the agency decision may satisfy the parties and thus obviate the need for unnecessary adjudication." Db at 4,[4] quoting Board of Ed. of Bernards Tp., Somerset County v. Bernards Tp. Ed. Ass'n, 79 N.J. 311, 317, 399 A.2d 620 (1979). It is readily apparent that the issuance of subpoenas by this court would not invade but rather serve those primary goals. Such relief would only aid the panel by ensuring the appearance of recalcitrant witnesses who may possess relevant information. The issuance of subpoenas would provide the panel with additional testimony which, if desired by the panel, might aid its decision and which would allow for the creation of a more complete record. The hospital seems to contend, in urging the applicability of the exhaustion doctrine, that Mossavi must go through the entire hearing before seeking judicial review on his right to obtain the assistance of the superior court in securing the attendance of witnesses. The court can see no benefit to be gained by such a result. To reject the claim on that ground would not serve a single purpose for the existence of the exhaustion doctrine.
Even if the exhaustion doctrine were to apply, it would not extend so far. The only administrative remedy which ought to be exhausted is Mossavi's petitioning of the hearing officer for the appearances of these witnesses. Presumably he has already done that (or the parties mutually recognize the hearing officer's lack of power in that regard). In that sense, the exhaustion of Mossavi's obligation to seek below the relief he seeks here would be *1079 futile. In such instances, the exhaustion doctrine, which has never been viewed as an absolute rule, is inapplicable. See, New Jersey Civil Service Association v. State, 88 N.J. 605, 613, 443 A.2d 1070 (1982); Garrow v. Elizabeth General Hospital and Dispensary, 79 N.J. 549, 561, 401 A.2d 533 (1979) (in which the administrative action was a similar internal hospital proceeding). Accordingly, there is no purpose to be served by requiring Mossavi to exhaust his administrative remedies in this case.
B. The Deference Due Internal Hospital Proceedings
This court's consideration of this complaint is not contrary to its obligation to defer to the hospital's expertise and right to govern itself. See, Nanavati v. Burdette Tomlin Memorial Hospital, 107 N.J. 240, 251, 526 A.2d 697 (1987) ("In so specialized and sensitive an activity as governing a hospital, courts are well advised to defer to those with the duty to govern"); Garrow, supra, 79 N.J. at 559, 401 A.2d 533. Compelling witnesses to appear for the hearing does not invade the panel's ability to use its expertise in such matters. If the panel determines the testimony is irrelevant or inadmissible, or otherwise of no assistance, it could simply exclude the testimony or ignore its impact. It may do with the witnesses what it wants. The ruling which Mossavi seeks would do nothing more than bring those witnesses to the hearing.
Mossavi does not seek a ruling from this court that the panel must consider or even hear any testimony J.F. and C.H. may have to offer. If Mossavi was seeking such a ruling, the court would certainly reject that contention as invading the panel's right to conduct its hearing as it wishes within the confines of its bylaws. Only then would the hospital's concerns about the court's interference with its processes be implicated. The court understands Mossavi's request to be limited to seeking the court's aid in compelling witnesses to appear at the hearing. He does not seek to have this court override the panel's right to exclude their testimony for hearsay reasons or any other appropriate reason. Accordingly, there is no merit in the hospital's contentions that this court should defer to the panel on the question of whether subpoenas should issue.[5] Indeed, the panel has no subpoena power to defer to.
C. Equitable Relief
Beyond the hospital's opposition, there is yet another concern not raised by any of the participants which is troubling: namely, whether the court is empowered to issue subpoenas in this private, extrajudicial dispute.[6] In other words, may this *1080 court utilize its powers to compel a witness to appear in a non-court proceeding? Stripped to its essentials, a subpoena ad testificandum is nothing more than a court's command that a person appear and give testimony at a proceeding or, upon failure to do so, answer to the court's considerable powers to coerce compliance. See, e.g., Silverman v. Berkson, 141 N.J. 412, 422, 661 A.2d 1266 (1995) ("The very etymology of the word `subpoena' signifies `an order with a penalty for disobedience'"), cert. denied 516 U.S. 975, 116 S.Ct. 476, 133 L.Ed.2d 405 (1995). Whether the intrusion of this court's subpoena power into this private affair is appropriate is a difficult question because no guideline can be found in the rules which govern this court.
Our Court Rules authorize the issuance of subpoenas only in certain delineated situations. R. 1:9-1 and 1:9-2 allow for the issuance of subpoenas for purposes of court proceedings and grand jury proceedings. See, State v. Hilltop Private Nursing Home, Inc., 177 N.J.Super. 377, 426 A.2d 1041 (App.Div.1981); Pressler, Current N.J. Court Rules (Gann 2000), comment to R. 1:9-1 at p. 135. R. 1:9-6 allows for the issuance of subpoenas to compel persons to testify or produce documents before a public officer or agency. These rules obviously do not apply to the present situation and no other rule exists which would support Mossavi's request. Conversely, no rule expressly prohibits the relief sought. The question, then, is whether the court possesses the jurisdiction to grant such relief in the absence of any positive or negative guidance from our court rules.
The parties to this case have a contractual relationship which, through the commencement of legal action, this court has the authority to interpret and enforce. The hospital's bylaws, as indicated earlier, allow for an aggrieved employee, such as Mossavi, to "call and examine witnesses" at a hearing appropriately instituted. Apparently, the hospital believes this procedural right may be vindicated only through the voluntary cooperation of witnesses. That would appear, however, to put Mossavi at a disadvantage under the circumstances. In this case, Mossavi has been accused of sexual harassment by several hospital employees. As a result of those allegations, the medical executive committee denied Mossavi's application for reappointment to the hospital staff. Considering the adverse position already taken by the hospital's medical executive committee to Mossavi's reappointment and the fact that the recalcitrant witnesses in question are or were (or may in the future be) hospital employees, the extent to which Mossavi, or anyone else similarly situated, might receive their uncoerced cooperation is certainly doubtful.[7] Accordingly, Mossaviseeks the fulfillment of his contractual right to "call" and examine witnesses through his appeal to this court's equitable jurisdiction.
The remedies available to courts of equity are broad and adaptable. Indeed, it was the unyielding nature of the English law courts which generated the inventive and flexible remedies of the Chancellor, the King's conscience. Our own Chancery Division is recognized as a descendent of this English tradition, see, Lyn-Anna Properties v. Harborview Development Corp., 145 N.J. 313, 333, 678 A.2d 683 (1996), and, like its ancestors, is fully authorized to discharge the maxims that sustain our equity jurisprudence. Chief among these maxims is that which states "wherever a legal right has been infringed a remedy will be given" or, as more commonly stated, "equity will not suffer a wrong without a remedy." See, Crane v. Bielski 15 N.J. 342, 349, 104 A.2d 651 (1954). Indeed, this maxim, more than any other, provides a constant reminder of *1081 the very reason the original chancery courts were formed. As Justice Heher said for what was once this state's highest court,
Equitable remedies are distinguished for their flexibility, their unlimited variety, their adaptability to circumstances and the natural rules which govern their use. There is in fact no limit to their variety in application, the court of equity has the power of devising its remedy and shaping it so as to fit the changing circumstances of every case and the complex relations of all the parties.
Sears Roebuck & Co. v. Camp, 124 N.J.Eq. 403, 411-412, 1 A.2d 425 (E. & A.1938). The "right" urged by Mossavi comes from the promise of the hospital's bylaws that he could "call" witnesses to testify before the panel. Without judicial intervention, this right will be vindicated only through a change in heart of the witnesses he seeks to call. Considering, however, J.F.'s response to the complaint,[8] that would seem unlikely.
The opposition recognizes Mossavi's right to call witnesses but offers no suggestion as to how that right may be enforced when a witness chooses not to answer that call. Truly, then, in the absence of relief from this court, Mossavi has only a right without a remedy. No court of conscienceabsent a clear legal mandate to the contrary[9]should permit such a result. This court should fulfill the hospital's promise of Mossavi's right to call witnesses through the issuance of subpoenas. No lesser action will suffice.
In the final analysis, this court, by entering the judgment sought, does nothing more than specifically enforce the express terms of the parties' agreement. By so ruling, this court is not showing a lack of deference to the hospital nor is it interfering with the hearing officer's right to control the proceedings.[10] The court is neither directly nor indirectly compelling the panel to hear the testimony of these witnesses or weigh their testimony in a particular way. The relief granted, rather than interfering with the operations of the panel, clearly has the effect of only aiding the hearing officer in fulfilling his duty of providing all parties with a reasonable opportunity to present relevant evidence. The court is merely compelling the recalcitrant witnesses to appear for the hearing as a means of enforcing the right, granted to Mossavi by the hospital's bylaws, to "call" these witnesses. What happens once those witnesses go through the hearing room doors is, at present, entirely up to the panel and its hearing officer.[11]
IV
CONCLUSION
Judgment will be entered directing the witnesses in question to appear for the *1082 hearing at a time and date consistent with the panel's schedule.
NOTES
[1] While their identities are revealed in the pleadings, no point would be served by further invading the privacy of S.K., J.F. and C.H. by using their full names in this opinion. Accordingly, only their initials have been used.
[2] Both J.F. and C.H. were served with the verified complaint and order to show cause. J.F. submitted a letter in response, stating she has nothing "to offer to the case for I know nothing that is relevant," and that she "was told that if [she] felt [she] had nothing to contribute that [she] did not have to be there." C.H. appeared on the return date of the order to show cause but presented no argument in response.
[3] It should be emphasized that the hiatus in the hospital's proceedings was not brought about or continued through any actions of this court but rather with the consent of the parties alone.
[4] "Db" refers to the hospital's brief in opposition to the order to show cause.
[5] The hospital argues that "[c]ompelling reluctant witnesses to appear before the committee, only to have their hearsay testimony overruled by Mr. McBride's consistent hearsay rulings, will not add to the factual record, and, in fact, may muddy the waters by introducing irrelevant side issues." Db at 6. The court fails to see how the issuance of subpoenas to two witnesses could possibly "muddy the waters." If what the hospital says is true about the inadmissibility of their testimony, then it would be expected that their appearance at the hearing would hardly be a blip on the radar screen. If the hospital has some insight into the hearing officer's mind and it is, in fact, true that the hearing officer will rapidly exclude the testimony of J.F. and C.H., then it would seem that an order compelling their appearance will hardly interfere with and not long detain the panel. In short, if what the hospital says about the admissibility of this testimony is true, the relief sought herein by Mossavi will hardly cause injury to the panel or the hospital. The potential injury to Mossavi, if the witnesses are not made available and they do have relevant testimony, however, is certainly significant and greater than the minor inconvenience the hospital complains of.
[6] While no party has argued that this court lacks subject matter jurisdiction, the court is nevertheless duty bound to insure that it possesses jurisdiction in all matters that come before it. See, e.g., Housing Authority of the City of Newark v. West, 69 N.J. 293, 304, 354 A.2d 65 (1976) (Pashman, J., dissenting) ("jurisdictional infirmities resulting from lack of subject matter jurisdiction may not be overcome nor waived by consent of the parties"); Bengali v. Haveliwala, 197 N.J.Super. 55, 57, 484 A.2d 41 (Ch.Div.1984).
[7] Presumably, the hospital is not similarly disadvantaged. Its status as employer would no doubt be sufficient to secure the attendance of any employees it wishes to have appear at the hearing.
[8] See, n. 2, supra.
[9] One of the fascinating aspects of equity jurisprudence is how there may be found for each maxim, another maxim which tends to pull in the opposite direction. For example, as is applicable to the present dilemma, while "equity suffers no right to be without a remedy," equity must also "follow the law." What is troubling about this particular case is the fact that our Court Rules govern the issuance of subpoenas and yet contain no provision for the issuance of a subpoena in the present instance. By the same token, the Court Rules do not expressly prohibit the issuance of a subpoena under the present circumstance. Therein lies the tension that always exists in an equity case of such difficulty.
[10] The hospital also argues that such a precedent would inundate the courts with similar applications in the future. The court doubts that there are so many internal hospital hearings going on as to cause a floodgate of similar actions. Moreover, that strikes me as a poor reason for denying petitioner the rights to "call and examine" witnesses promised by the hospital bylaws.
[11] For example, it would not be inconsistent with this court's very limited ruling for the hearing officer to exclude the testimony of J.F. and C.H. because the hearing officer believes they have no relevant information to provide, that their testimony constitutes inadmissible hearsay, or because of any other appropriate reason. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599592/ | 3 So. 3d 326 (2009)
FOCHT
v.
STATE.
No. 2D07-5797.
District Court of Appeal of Florida, Second District.
February 6, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599552/ | 3 So. 3d 94 (2008)
Danny HOLLAND
v.
The PEOPLES BANK & TRUST COMPANY.
No. 2007-CA-02023-SCT.
Supreme Court of Mississippi.
December 11, 2008.
Certiorari Denied March 5, 2009.
*96 Robert Q. Whitwell, Ashland, attorney for appellant.
Scott R. Hendrix, Tupelo, L. Bradley Dillard, attorneys for appellee.
Before SMITH, C.J., CARLSON and RANDOLPH, JJ.
CARLSON, Justice, for the Court.
¶ 1. Danny Holland filed suit against Renasant Bank f/k/a Peoples Bank & Trust Company on or about November 20, 1998, in the Circuit Court for the Second Judicial District of Panola County, alleging negligent and fraudulent misrepresentation, breach of fiduciary duty and breach of covenants of good faith and fair dealing. Holland sought compensatory damages in the amount of $5,000,000 and punitive damages in the amount of $10,000,000. Upon the trial court's grant of summary judgment in favor of the Bank, Holland appealed to us. Finding no error, we affirm.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶ 2. The business relationship between Danny Holland and Renasant Bank f/k/a Peoples Bank & Trust Company began in February 1996. Between February and April 1996, the Bank made various loans to Holland at a total of more than two million dollars, all of which were collateralized with real estate, equipment, cattle, and horses, as well as property in Lafayette County. This included a $500,000 revolving line of credit that Holland sought to use for expenses associated with his cotton brokerage business. The parties dispute whether the Bank by and through its employee, William Jeffreys,[1] also promised to loan Holland additional funds for the purpose of covering margin calls in commodities trading. Holland contends he informed William Jeffreys that in the event cotton prices dropped below eighty cents a pound, he would need an additional $200,000, for a total line of credit in the amount of $700,000, for the purpose of covering margin calls, and that Jeffreys orally promised to extend the line of credit for that purpose. On the other hand, the Bank maintains that Holland asked for an extended line of credit in the amount of $100,000 for the purpose of covering margin calls, which the Bank denied due to Holland not being able to produce more collateral. Additionally, the Bank contends that Jeffreys did not have loan authority *97 for such an amount and that a loan in this amount would have had to have been approved by the Bank board.
¶ 3. Holland desired to sell his Yocona Bottom Lafayette County property (hereinafter the "Lafayette County property"). The breach-of-fiduciary-duty allegations stem from the sale of this property. Holland had hoped to arrange with the bank a section 1031[2] tax benefit land swap wherein he would find replacement property for the Yocona Bottom property to avoid a capital gains tax. William Jeffreys, on behalf of the Bank, was to act as escrow agent for the transaction. The Bank contends that this agreement was negotiated, but was never finalized because the Bank asked for, but never received, more collateral from Holland to cover the additional loan he needed to secure the replacement property. The Bank further contends that the sale proceeds were received by the Bank, but never deposited in an escrow account because there was no agreement to that end. According to the Bank, it held the check to give Holland opportunity to produce more collateral for the proposed escrow exchange. When additional collateral did not materialize, the Bank offset the $237,000 against debt owed to them by Holland, and Holland claims that this action by the Bank was a breach of fiduciary duty because these loans were not in default. The Bank contends that the Lafayette County property was its collateral, and that the Bank was merely offsetting the proceeds to release the collateral. Holland asserts that with no extended line of credit and no proceeds from the Lafayette County sale, he was unable to cover his margin calls, which led to significant financial losses and loss of goodwill in his cotton brokerage enterprise.
¶ 4. Holland thus sold collateral (i.e., cattle) which the Bank held. The Bank, in turn, considered Holland to have defaulted on the terms of his loans. Subsequently, Holland entered into a workout agreement with the Bank to extend the loans to give him time to liquidate his assets to pay down the debt. Holland, by and through counsel, negotiated and entered into a workout agreement with the Bank, signed an amended promissory note, and then later signed a second amended promissory note. Holland eventually paid off the Bank.
¶ 5. Holland subsequently filed suit against the Bank, alleging in his complaint negligent misrepresentation, fraudulent misrepresentation, and breach of fiduciary relationship. This Court appointed Senior Status Judge Robert Kenneth Coleman as Special Judge to preside and conduct all proceedings in this case. The Bank filed a motion for summary judgment, which was denied by Judge Coleman by way of an order dated February 24, 2006, and entered on March 3, 2006. The Bank petitioned this Court for an interlocutory appeal, which was denied by a three-justice panel of this Court by order entered on March 29, 2006. Renasant Bank v. Holland, 2006-M-00436 (Miss. June 29, 2006). Thereafter, the Bank filed a Motion for Reconsideration of Denial of Petition for Permission to Appeal Interlocutory Order, which motion for reconsideration was denied by the en banc Court by order entered on June 29, 2006. On October 12, 2006, Judge Coleman recused himself from the proceedings. By order entered on January 8, 2007, this Court appointed Judge L. Joseph Lee, Presiding Judge of the Court of Appeals of Mississippi, as Special Judge to preside and conduct all proceedings in this case. On March 20, 2007, Judge Lee entered an order setting this case for *98 trial on March 3, 2008. The Bank, on July 19, 2007, filed another motion asking the trial court to reconsider the previously-entered order denying summary judgment. Holland objected to the Bank's motion for reconsideration, asserting: (1) the case presented genuine issues of material fact; (2) the Bank's motion was untimely filed pursuant to Mississippi Rule of Civil Procedure 59(e); and (3) a successor judge was precluded from overruling a prior order entered by a predecessor judge.
¶ 6. Judge Lee relied on Mauck v. Columbus Hotel Co., 741 So. 2d 259 (Miss. 1999), as the basis for his reconsideration of Judge Coleman's previous denial of the Bank's motion for summary judgment insomuch as Mauck stood for the premise that a denial of summary judgment is not a final judgment on the merits, nor is it binding upon successor courts. Mauck, 741 So.2d at 268. The trial judge further ruled that Holland had no basis for relief under the law given that the promise to lend money in the future is not a past or present fact and thus "not such a representation as will support recovery under a theory of negligent misrepresentation" (quoting Bank of Shaw v. Posey, 573 So. 2d 1355, 1360 (Miss.1990)). As to Holland's claim that the Bank's loan officer, William Jeffreys, promised him money beyond the terms of Holland's written contract with the Bank, the trial court found that Holland's claim failed under Godfrey, Bassett & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So. 2d 1254, 1257 (Miss. 1991), because written contracts cannot be altered by prior oral agreements and because any parol evidence submitted to vary the written contract terms is inadmissible. The trial court further cited Austin Development Co. v. Bank of Meridian, 569 So. 2d 1209 (Miss.1990) in support of the Bank's argument that Holland had waived any cause of action against the Bank by executing the workout agreements and amendments to his promissory notes. Additionally, the trial court noted that Holland was unable to produce any evidence of damages to his business which could be attributed to the Bank's actions.
¶ 7. In its opinion, the trial court did not specifically address the claim of breach of fiduciary duty relating to the failed escrow agreement.
DISCUSSION
¶ 8. Holland presents to this Court five issues for our review: (1) whether the trial court erred in granting the Bank's motion for summary judgment; (2) whether the trial court erred in ruling that Holland had waived his claims by signing renewal notes; (3) whether the successor trial judge erred in granting the Bank's motion for reconsideration of a predecessor judge's previous order denying summary judgment; (4) whether the Bank waived the claims in its motion for reconsideration; and (5) whether the trial court erred in granting summary judgment because other genuine issues of material fact were present and should have been resolved by a jury. Today's discussion combines Holland's first assignment of error with his fifth assignment of error, since the issue of damages discussed therein relates back to the elements of both fraudulent and negligent misrepresentation.
I. WHETHER THE TRIAL COURT ERRED IN GRANTING THE BANK'S MOTION FOR SUMMARY JUDGMENT.
¶ 9. In reviewing a trial court's decision to grant summary judgment, this Court uses a de novo standard of review. Franklin County Mem'l Hosp. v. Miss. Farm Bureau Mut. Ins. Co., 975 So. 2d 872, 874 (Miss.2008) (citing Callicutt v. Prof'l Servs. of Potts Camp, Inc., 974 So. 2d 216, 219 (Miss.2007)). The evidence must *99 be viewed in the light most favorable to the non-moving party and if, in this view, the moving party is entitled to a judgment as a matter of law, then summary judgment should be granted in his favor. Otherwise, the motion should be denied. Palmer v. Anderson Infirmary Benevolent Ass'n, 656 So. 2d 790, 794 (Miss.1995) (citing Brown v. Credit Center, Inc., 444 So. 2d 358, 362 (Miss.1983)).
¶ 10. Mississippi Rule of Civil Procedure 56(c) states in pertinent part:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
A fact is material if it "tends to resolve any of the issues properly raised by the parties." Simpson v. Boyd, 880 So. 2d 1047, 1050 (Miss.2004) (quoting Palmer, 656 So.2d at 794). Even where the trial court finds that there is nothing before it that indicates a genuine dispute of material fact and finds that the movant is otherwise entitled to summary judgment, the trial court may "nevertheless be justified in denying summary judgment when, in its view, a full exposition of the facts may result in a triable issue or is warranted in the interest of justice." Great Southern Nat'l Bank v. Minter, 590 So. 2d 129, 135 (Miss.1991) (quoting Brown v. McQuinn, 501 So. 2d 1093, 1095 (Miss.1986)).
¶ 11. Holland contends he informed Jeffreys that, in the event cotton prices dropped below eighty cents a pound, he would need an additional $200,000 (for a total of a $700,000) line of credit, for the purpose of covering margin calls in commodities trading. He further claims that Jeffreys orally promised to extend the line of credit an additional $200,000 to cover margin calls. Holland maintains that when cotton prices did drop, his business suffered losses due to the Bank's negligent and fraudulent misrepresentations regarding his line of credit. On the other hand, the Bank maintains that Holland asked for an extended line of credit in the amount of $100,000 for the purpose of covering margin calls, which the Bank denied due to Holland not being able to produce more collateral. The Bank further contends that Jeffreys did not have the authority to either grant or deny a $200,000 extended line of credit and that such action had to be presented to the Bank board for consideration. Additionally, the Bank contends that Holland knew or should reasonably have known that Jeffreys lacked this authority. Furthermore, the Bank contends that Holland cannot recover based on future promises for an extended line of credit, nor can any oral agreement alter the four corners of the written contract under the parol evidence rule.[3]
¶ 12. The trial court ruled that Holland's claim of negligent misrepresentation failed because a promise to lend money is not a past or present existing fact but a "promise of future conduct" and as such is "not such a representation as will support recovery under a theory of negligent misrepresentation." Bank of Shaw v. Posey, 573 So. 2d 1355, 1360 (Miss. 1990); see also Moran v. Fairley, 919 So. 2d 969 (Miss.Ct.App.2005). Although the trial court did not specifically address the claim of fraudulent misrepresentation, *100 the rule is the same. In cases of fraud, relief cannot be based on future promises, "except in some cases when a contractual promise is made with the present undisclosed intention of not performing it." Bank of Shaw, 573 So.2d at 1360. Holland cites Kidd v. Kidd, 210 Miss. 465, 49 So. 2d 824, 827 (1951), for the same premise in support of his argument that Jeffreys promised him the extended line of credit with the undisclosed intent not to perform.
¶ 13. In order to recover under a theory of fraudulent misrepresentation, a plaintiff must prove, by clear and convincing evidence, the following elements:
(1) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of the truth; (5) his intent that it should be acted on by the hearer and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) his reliance on its truth; (8) his right to rely thereon; and (9) his consequent and proximate injury.
Bank of Shaw v. Posey, 573 So. 2d 1355, 1362 (Miss.1990) (citing Ezell v. Robbins, 533 So. 2d 457 (Miss.1988); Martin v. Winfield, 455 So. 2d 762, 764 (Miss.1984); Franklin v. Lovitt Equip. Co., Inc., 420 So. 2d 1370, 1373 (Miss.1982)). Even if the facts as espoused by Holland were accepted as true, the record reveals that Holland is unable to make a clear and convincing showing that Jeffreys was aware that there would be no extended line of credit, yet promised Holland the $200,000. As to the alleged misrepresentation, Holland's contention that Jeffreys promised him the $200,000 is flatly denied by Jeffreys and the Bank. Holland admits that there was never an actual agreement to extend the line of credit by $200,000. He states that he told Jeffreys he might need the money at a future date based on the cotton market. Furthermore, Holland would have to prove that he had a right to rely on such a falsehood. However, Holland should have reasonably known that Jeffreys lacked authority to lend that amount of money and that any loan proposals would have to be brought before the Bank's board.
¶ 14. Absent a showing of fraud, the trial court was eminently correct in finding that the written loan agreement could not be altered by prior oral agreements. See Godfrey, Bassett, & Kuykendall Architects, Ltd. v. Huntington Lumber & Supply Co., 584 So. 2d 1254, 1257 (Miss.1991); see also Franklin v. Lovitt Equipment Co., 420 So. 2d 1370, 1372 (Miss.1982). Furthermore, this Court has held: "[A] person is under an obligation to read a contract before signing it, and will not as a general rule be heard to complain of an oral misrepresentation the error of which would have been disclosed by reading the contract." Stephens v. Equitable Life Assurance Soc'y of the United States, 850 So. 2d 78, 82 (Miss.2003) (quoting Godfrey, 584 So.2d at 1257) (citations omitted). The loan agreement provided for a $500,000 line of credit, and the trial court did not err in finding that any prior oral agreement that attempts to alter this written agreement is inadmissible.
¶ 15. In the alternative, Holland argues that, if not fraudulent, then Jeffreys's misrepresentation was negligent. This Court has distinguished fraudulent representation and negligent representation:
The basis for damages resulting from negligent misrepresentation is the lack of care; the basis for damages resulting from fraud is the want of honesty. See Restatement of the Law of Torts (Second) sections 549 and 552 (1977). The lack of care in negligent misrepresentation and the want of honesty in fraudulent misrepresentation in business transactions give rise to distinct causes of *101 action, the one in tort, the other in fraud.
Bank of Shaw, 573 So.2d at 1360 (quoting First Money, Inc. v. Frisby, 369 So. 2d 746, 750 (Miss.1979)). In order to establish negligent misrepresentation, the following elements must be proven:
(1) a misrepresentation or omission of a fact; (2) that the representation or omission is material or significant; (3) that the person/entity charged with the negligence failed to exercise that degree of diligence and expertise the public is entitled to expect of such persons/entities; (4) that the plaintiff reasonably relied upon the misrepresentation or omission; and (5) that the plaintiff suffered damages as a direct and proximate result of such reasonable reliance. Horace Mann Life Ins. Co. v. Nunaley, 960 So. 2d 455, 461 (Miss.2007) (citing Skrmetta v. Bayview Yacht Club, Inc., 806 So. 2d 1120, 1124 (Miss.2002)).
Hazlehurst Lumber Co. v. Miss. Forestry Comm'n, 983 So. 2d 309, 313 (Miss.2008). The aforementioned elements must be proven by a preponderance of the evidence. Bank of Shaw, 573 So.2d at 1360. As was the case with the fraudulent-misrepresentation allegation, Holland was unable to show that he reasonably could have relied on any assertions by Jeffreys that an additional $200,000 line of credit would be forthcoming, given that Jeffreys lacked actual and apparent authority to approve a loan agreement of such financial magnitude.
¶ 16. On the issue of damages, the trial court held that Holland failed to produce documentation in support of his claim that the Bank's refusal to grant his loan resulted in losses to his cotton and farming business. Holland argues that the testimony of his accountant would establish that the Bank's alleged misappropriation of the $237,000 in proceeds from the Lafayette County land sale caused him to suffer severe monetary damages. Holland further argues that causal connection is a question of fact to be determined by a jury. See e.g., Glover v. Jackson State Univ., 968 So. 2d 1267, 1277 (Miss.2007). Causation and damages are but two elements of Holland's claims. As discussed previously, Holland has failed to establish reasonable reliance on any assertions by Bank employee William Jeffreys. Therefore, the trial court did not err in finding as a matter of law that Holland was not entitled to recovery of monetary damages.
¶ 17. As to the claim of breach of fiduciary duty, Holland fails to show that there was an escrow agreement that would impose a fiduciary duty on the Bank or its agent. This Court has stated the following regarding fiduciary relationships:
Although every contractual agreement does not give rise to a fiduciary relationship, in Mississippi such a relationship may exist under the following circumstances:
(1) the activities of the parties go beyond their operating on their own behalf, and the activities [are] for the benefit of both; (2) where the parties have a common interest and profit from the activities of the other; (3) where the parties repose trust in one another; and (4) where one party has dominion or control over the other.
Robley v. Blue Cross/Blue Shield, 935 So. 2d 990, 995 (Miss.2006) (citing Univ. Nursing Assocs., PLLC v. Phillips, 842 So. 2d 1270, 1274 (Miss.2003); Carter Equip. Co. v. John Deere Indus. Equip. Co., 681 F.2d 386, 391 (5th Cir.1982)). The Bank argues that this escrow agreement was merely a proposed agreement that the Bank rejected on the basis that Holland could not produce more collateral. This Court is unable to find from the record *102 before us any of the requisite elements for a fiduciary relationship where Holland has failed to produce evidence that the agreement existed. It is undisputed that Holland sold property that was the Bank's collateral, and that the Bank offset Holland's debt owed to them with the sales proceeds. Under the holding in Wise v. Valley Bank, 861 So. 2d 1029 (Miss.2003), unless there was an agreement to the contrary, the relationship between Holland and the Bank was one of debtor/creditor. As to the duty owed by banks, this Court held in Wise:
"The relationship between a bank and a depositor, without an agreement to the contrary, is simply one of debtor and creditor, and a deposit is not, ordinarily, a trust fund." Deposit Guar. Bank & Trust Co. v. Merchants' Bank & Trust Co., 171 Miss. 553, 158 So. 136, 137 (1934) (citing Moreland v. People's Bank of Waynesboro, 114 Miss. 203, 74 So. 828 (1917)). Furthermore, we have found that the relationship between a bank and its depositor is generally not a fiduciary one. Merchants & Planters Bank of Raymond v. Williamson, 691 So. 2d 398, 403 (Miss.1997).
Wise, 861 So.2d at 1033. Logically, "[t]he existence of a fiduciary duty must be established before a breach of that duty can arise." Merchants & Planters Bank v. Williamson, 691 So. 2d 398, 403 (Miss.1997) (citing Lowery v. Guar. Bank and Trust Co., 592 So. 2d 79, 83 (Miss.1991)).
¶ 18. Assuming arguendo that Holland could establish a prime facie case of fraudulent or negligent misrepresentation or breach of fiduciary duty, those claims would be deemed waived based on Holland's signing the renewal notes and participating in the workout agreement with the Bank, as discussed infra in Holland's second assignment of error.
¶ 19. For the reasons discussed, we find these combined assignments of error to be without merit.
II. WHETHER THE TRIAL COURT ERRED IN RULING THAT HOLLAND HAD WAIVED HIS CLAIM BY VIRTUE OF SIGNING RENEWAL NOTES.
¶ 20. Holland argues that the workout agreement pertained to other loans and did not relate to the Bank's alleged misappropriation of the $237,000 from the Lafayette County land sale. Therefore, according to Holland, the trial court erred in granting summary judgment based on its view that Holland had waived his claims by participating in the workout agreement, because only a jury could make a factual finding as to the agreement's terms. The Bank argues that all possible defenses and claims relating to the notes and otherwise available to Holland were waived at the time Holland renewed the promissory notes and signed the workout agreement.
¶ 21. The trial court cited Austin Development Co., Inc. v. Bank of Meridian, 569 So. 2d 1209 (Miss.1990) in support of its granting the Bank's motion for summary judgment on this issue. In Austin, Austin D. Check was indebted to Bank of Meridian for approximately $400,000. Id. at 1210. Check requested a $50,000 loan from the Bank to finance a real estate development that was to be financed by Ronald Evans. The Bank requested more collateral, and Evans provided Check with a letter of credit in the amount of $50,000 drawn on Valley View Bank. Id. Check assigned the letter of credit to the Bank so that it could be collected on should the loan ever be in default. Id. Eventually Check's loan amount increased to $110,000, as did the letter of credit provided by Evans. When the loan matured on September 3, 1985, it went unpaid. The letter of credit was set to expire September 9, 1985; *103 however, Bank of Meridian failed to collect on the letter of credit until September 12, 1985. Id. Valley View Bank refused to pay on the expired letter of credit, and Bank of Meridian threatened collection unless Check renewed the note in the principal amount of $110,000. Id. When the loan was again in default, the Bank of Meridian brought suit against Check and his company. Bank of Meridian was granted summary judgment by the trial court on the basis that the defendants had legally waived any defense to the notes and any other possible causes of action available at the time the renewal notes were executed and the interest was paid. Id. at 1211. Summary judgment in the Austin case was affirmed by this Court based on the rule promulgated in Citizens National Bank v. Waltman, 344 So. 2d 725 (Miss. 1977), Brickell v. First National Bank, 373 So. 2d 1013 (Miss.1979), and Turner v. Wakefield, 481 So. 2d 846 (Miss.1985), that renewal of the note constituted a waiver of all claims against the bank, including the claim of negligent impairment allegedly caused by the Bank of Meridian's loss of the $110,000 collateral entrusted to it by the defendants. Id. at 1212. In Austin, the Court also cited Gay v. First National Bank, 172 Miss. 681, 160 So. 904 (1935), which stood for the premise that "[w]here a party has full knowledge of all defenses to a note and executes a new note payable at a future date, he then waives all his defenses and becomes obligated to pay the new note." Id. (quoting Gay, 172 Miss. at 686, 160 So. at 905).
¶ 22. Under the holdings in Austin and its progeny, assuming arguendo that the true facts are as asserted by Holland, the trial court did not err in finding that Holland had waived his claims by entering into the workout agreement and by signing the renewal notes. The language in Austin is clear that by signing renewal notes, the defendants in that case had waived not only defenses to the notes but "any possible causes of action otherwise available to the defendants" against the Bank, including the negligence claim. Austin, 569 So.2d at 1211. Austin is applicable to today's case insomuch as all possible claims that Holland could have had against the Bank, including the negligence claim, were waived by the workout agreement and renewal notes.
¶ 23. We thus find, for the reasons stated, that this assignment of error has no merit.
III. WHETHER THE SUCCESSOR TRIAL JUDGE ERRED IN GRANTING THE BANK'S MOTION FOR RECONSIDERATION OF AN EARLIER JUDGE'S ORDER DENYING SUMMARY JUDGMENT.
¶ 24. Holland contends that the trial court erred in granting the Bank's Motion for Reconsideration of Order Denying Summary Judgment, given that Judge Coleman already had entered an order denying summary judgment and given that Judge Lee already had set the date for trial. In support of this argument, Holland points to Mississippi Rule of Civil Procedure 60(b)(6), which states in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or his legal representation from a final judgment, order, or proceedings for the following reasons:
....
(6) any other reason justifying relief from the judgment.
Holland claims that since no other subparagraph of Rule 60(b) applies (i.e., fraud, accident or mistake, etc.) and no new evidence was put forth by the Bank that would justify relief, the original order denying *104 summary judgment entered by Judge Coleman should stand.
¶ 25. The Bank contends that Judge Lee was not bound by Judge Coleman's previous denial of its motion for summary judgment. This issue is laid to rest based on our prior case law. "An order denying summary judgment is neither final nor binding upon the court or successor courts." Mauck v. Columbus Hotel Co., 741 So. 2d 259, 268 (Miss.1999) (citing Great So. Nat'l Bank v. Minter, 590 So. 2d 129, 133, 135 (Miss.1991)). Moreover, "[a]t the point of final decision on the merits [the trial judge] was duty bound to apply the law to the record then before the court, regardless of any prior ruling denying summary judgment." Id. at 268-69. In other words, the law-of-the-case doctrine, wherein a successor judge is precluded from correcting errors of law made by the predecessor judge or from revising the predecessor judge's order or judgment on its merits, has no applicability where the order or judgment is not of a final character. Mauck, 741 So.2d at 268. This is true even where there has been an intervening denial of a petition for permission to file an interlocutory appeal, given that this Court's denial of an interlocutory appeal is not a final judgment on the merits. Id.
¶ 26. Thus, Holland's reliance on Mississippi Rule of Civil Procedure 60(b)(6) is misplaced in that the rule applies only where the judgment or order is final. In accordance with Mauck, an order denying a motion for summary judgment is not a final judgment. For the reasons stated, Judge Lee was acting within his authority as trial judge in considering and granting the Bank's Motion for Reconsideration of Order Denying Summary Judgment. Accordingly, this assignment of error is without merit.
IV. WHETHER THE BANK PREVIOUSLY HAD WAIVED THE CLAIMS PRESENTED IN ITS MOTION FOR RECONSIDERATION.
¶ 27. Finally, Holland argues that it was error for Judge Lee to take up the Bank's motion for reconsideration because the motion was filed seventeen months after the entry of Judge Coleman's order denying the Bank's previous motion and eleven months after this Court denied the Bank's interlocutory appeal. Furthermore, Holland contends that the Bank was dilatory in filing its motion and that such delay should be held to constitute a waiver of claims by the Bank (citing East Mississippi State Hospital v. Adams, 947 So. 2d 887, 891 (Miss.2007) (failure to timely pursue affirmative defense, together with active participation in the litigation, served as a waiver of the affirmative defense)). See also MS Credit Ctr., Inc. v. Horton, 926 So. 2d 167, 181 (Miss.2006) ("absent extreme and unusual circumstances-an eight month unjustified delay in the assertion and pursuit of any affirmative defense or other right which, if timely pursued, could serve to terminate the litigation, coupled with active participation in the litigation process, constitutes waiver as a matter of law.") (n. 9 omitted).
¶ 28. The Bank gives the following timeline in support of its assertion that it timely filed a motion for reconsideration. On January 8, 2007, an order was entered replacing Judge Coleman with Judge Lee. Renasant first discussed the motion for reconsideration via telephone conference with Judge Lee and Holland in January 2007. On January 23, 2007, a completed, bound set of all prior pleadings was prepared for Judge Lee for the purpose of reconsideration of the motion for summary judgment. Renasant caused two fact depositions to be conducted on April 26 and *105 27, 2007, at its expense. In March 2007, there was a second telephone conference among the parties and the trial judge, with an order setting the case for trial immediately following. The Bank's Motion for Reconsideration of Order Denying Summary Judgment was filed on July 19, 2007. MS Credit Center, Inc. v. Horton, 926 So. 2d 167, 181 (Miss.2006), also stands for the premise that whether a motion is timely is to be a discretionary determination and is left to the trial court on "a case by case basis" considering the facts and circumstances. Thus, Judge Lee was well within his authority to consider and grant the motion. This Court has held that only "[t]he commencement of trial closes the season for granting motions for summary judgment." Hurst v. Sw. Miss. Legal Servs. Corp., 610 So. 2d 374, 384 (Miss. 1992) (overruled on other grounds). Even in a case where trial was a few weeks away, this Court upheld a trial court's grant of summary judgment as being within the trial court's discretion where the threshold under Rule 56(c) was satisfied. Noxubee County Sch. Dist. v. United Nat'l Ins. Co., 883 So. 2d 1159, 1163 (Miss.2004). Accordingly, based on our discussion of this issue, we find this issue to be without merit.
CONCLUSION
¶ 29. For the aforementioned reasons, the grant of summary judgment in favor of Renasant Bank f/k/a Peoples Bank & Trust Company and against Danny Holland by the Circuit Court for the Second Judicial District of Panola County is affirmed.
¶ 30. AFFIRMED.
SMITH, C.J., WALLER, P.J., DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY. EASLEY, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. DIAZ, P.J., NOT PARTICIPATING.
NOTES
[1] Sometimes spelled "Jeffries" in the record.
[2] See 26 U.S.C.A. § 1031 (Supp.2008).
[3] The parol evidence rule "seeks to preserve [the] integrity of written agreements by refusing to permit contracting parties to attempt to alter [the] import of their contract through [the] use of contemporaneous oral declarations." Black's Law Dictionary 1006 (5th ed. 1979). See also HeartSouth, PLLC v. Boyd, 865 So. 2d 1095, 1107-08 (Miss.2003). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599593/ | 485 N.W.2d 662 (1992)
In re the MARRIAGE OF Richard D. FITE and Peggy M. Fite
Upon the Petition of Richard D. Fite, Appellant,
And Concerning Peggy M. Fite, Appellee.
No. 90-919.
Supreme Court of Iowa.
June 17, 1992.
Jill S. Rolek, Des Moines, for appellant.
*663 William F. Denman, Des Moines, for appellee.
Considered by McGIVERIN, C.J., and CARTER, NEUMAN, SNELL, and ANDREASEN, JJ.
CARTER, Justice.
Richard D. Fite, father of Janelle Fite, a minor child, appeals from the child support and visitation provisions of a district court order modifying the January 21, 1986 decree, which dissolved his marriage to appellee, Peggy M. Fite. Upon reviewing the record and considering the arguments of the parties, we modify and otherwise affirm the district court's order.
The January 21, 1986 decree dissolving the marriage of Richard and Peggy made Peggy the primary custodian of their daughter, Janelle. The decree provided that the determination of a final schedule for Richard's child visitation should await the conclusion of counseling by both parents with an independent professional children's guidance counselor and report by that counselor to the court. For some reason not explained in the present proceeding, the counseling called for in the original decree did not take place, and Richard's visitation rights were never finally established.
The dissolution decree provided that Richard pay Peggy the sum of $250 per month as support for Janelle until such time as she graduates from high school, marries, or otherwise becomes self-supporting. Provision was made to continue Richard's child support obligation should Janelle attend college or vocational training after graduating from high school.
On October 16, 1989, Peggy filed the present action for modification of the original dissolution decree. She alleged that a substantial change in financial circumstances of the parties had occurred that was not within the contemplation of the court at the time the decree was entered. She alleged that the amount of Janelle's educational expenses have doubled and that other living expenses have also increased. She asked the court to modify the decree so as to require Rick to pay $300 per month as child support and, in addition, pay one-half of Janelle's educational expenses. Janelle attends the Des Moines Christian School, a private, sectarian educational institution located in Des Moines.
Richard filed an answer to Peggy's modification petition, denying that circumstances had changed sufficiently to justify altering his child support obligation. In addition, he requested that the court establish his visitation rights with Janelle. Ultimately, after several temporary orders, the modification action was heard, and on May 10, 1990, an order was entered modifying the original dissolution decree. In that order, Rick's monthly child support payment was increased to $300, and in addition, he was ordered to pay forty-five percent of the tuition costs incurred by Janelle at the Des Moines Christian School.
The May 10, 1990 order also established a detailed schedule for Richard's visitation with Janelle. The court imposed conditions upon Richard's rights of visitation, including abstinence from use of alcohol and use of profane, obscene, or abusive language during visitation. Janelle was authorized to "terminate visitation and return home" if she believes those conditions have not been observed. The order further provided that if a dispute arose concerning Richard's use of alcohol he should obtain a chemical test of his blood alcohol level in order to resolve the dispute.
Richard has appealed, challenging both the child support and visitation provisions in the modification order. In addition, he seeks review of a contempt proceeding against Peggy during the pendency of the modification proceeding. Other facts relevant to the case will be considered in our discussion of the legal issues that have been presented.
I. The Child Visitation Issue.
Richard argues that the district court slighted him on the amount of child visitation that was allowed. In addition, he complains of the conditions imposed on his right to exercise visitation. In reviewing these claims, we do not disturb the quantity *664 of visitation or times of visitation contained in the district court's order. To the extent that Richard also complains of the locations where he is required to pick Janelle up or drop her off, we believe that in fixing those locations the district court was only adhering to the wishes of the child's primary custodian. We see nothing wrong in deferring to the custodian's wishes in this regard as long as the designated locations are reasonable, based on geographic considerations. Richard has failed to establish that the locations are not reasonable.
With respect to Richard's objections to the conditions imposed on his visitation rights with Janelle, we agree that some of these provisions are demeaning and, in addition, are an invitation to abort scheduled child visitations based on subjective determinations. The district court was correct in providing that Richard should not be permitted visitation with Janelle if he has been drinking excessively. We believe, however, that it is unwise to place in the court's decree any formal procedure for resolving this question or to formalize a right to abort visitations based on the subjective belief of the child. Consequently, we delete those conditions as formal provisions of the decree. If Richard behaves irresponsibly in the manner specified in the deleted conditions, his conduct may be made the subject of further proceedings in the district court and may be grounds for reduction or elimination altogether of his child visitation rights.
II. The Child Support Issue.
We review the district court's modification of Richard's child support in two respects. We first must determine whether the record reflects a sufficient change of circumstances to warrant any modification of the original support decree. If so, we must then determine whether, as Richard contends, it was unwarranted to require him to pay a portion of Janelle's tuition expenses at a private school.
We have previously determined that, in determining whether a change of circumstances has occurred, the district court should not consider the child support guidelines. In re Marriage of Dawson, 467 N.W.2d 271, 274 (Iowa 1991); In re Marriage of Bergfeld, 465 N.W.2d 865, 870 (Iowa 1991). If a change in circumstances is established for reasons other than the child support guidelines, the court must consider the guidelines in making any change in the level of support. Dawson, 467 N.W.2d at 274.
We conclude that the present modification of support was not based on the guidelines but rather on changes in the parties' respective financial situations. That evidence is sufficient, albeit minimally so, to establish the requisite change of circumstances. If our statements in Dawson concerning the child support guidelines are to be adhered to, however, Richard's support level should have been increased to correspond with the guideline level. Based on the income levels that the record reflects, this would require a monthly payment of $384 rather than the $250 amount specified in the original decree. Under the district court's order, if one-twelfth of the sum representing forty-five percent of Janelle's tuition at the Des Moines Christian School is added to the $300 monthly child support payment, the aggregate amount obtained substantially exceeds $384 per month.
In State ex rel. Department of Human Services v. Burt, 469 N.W.2d 669 (Iowa 1991), we considered whether a high ratio of living expenses to net income on the part of a child support payor may serve as a basis for fixing child support below the guideline level. We concluded that that circumstance did not justify departure from the guidelines. We stated:
[T]he guidelines already take into account the reasonable living expenses of the noncustodial parent, the very subject which prompted the district court to depart from the guidelines. In the absence of special circumstances, the reasonable living expenses of the noncustodial parent do not provide a ground for departing from the guidelines.
Id. at 670. We believe that the guidelines also take into account the reasonable cost *665 of living, including educational expenses, of dependent children and attempt to balance those costs against the legitimate needs and expenses of the payor parent. See State ex rel. Epps v. Epps, 473 N.W.2d 56, 58 (Iowa 1991). Although it is not our intention to characterize Janelle's attendance at the Des Moines Christian School as unreasonable, we do not believe that, considering Richard's monthly net income level of $1710, this provides any basis for increasing Richard's support level above the guideline amount.[1]
We disagree with appellee's suggestion that because Richard acquiesced in Janelle's attendance at the Des Moines Christian School at the time of the original dissolution decree he should be subject to a modified level of support reflecting the increased tuition costs at that school. At the time of the original dissolution decree, the Des Moines Christian School had only a kindergarten through sixth grade curriculum. Both parties and undoubtedly the court in the original dissolution trial would have assumed that Janelle would attend the public schools after completion of sixth grade.
For the reasons stated, we modify the district court's order by deleting the requirement that Richard pay forty-five percent of Janelle's tuition expense at the Des Moines Christian School. In doing this, however, we simultaneously increase Richard's monthly child support payment to $384, retroactive to October 16, 1989.
III. District Court's Finding in Contempt Proceeding.
As a final matter, we consider Richard's contention that the district court acted improperly in failing to hold Peggy in contempt for unreasonably denying Richard's child visitation under temporary orders of the district court while the modification case was pending. Our review of the record suggests that the district court could reasonably have concluded that Peggy was not acting in contempt of its order. We defer to that court's conclusions in that regard. We note, however, that the record reveals some instances where it appears that Peggy's denial of Richard's visitation rights was questionable.
With respect to the rather detailed schedule of visitation that the district court has now established, Richard is without question entitled to rely on those times and dates in planning his life's activities. Deviation therefrom without his consent should not occur absent the most compelling circumstances. Any loss of a scheduled visitation for reasons not attributable to Richard's deliberate act, shall be made up at the earliest available opportunity.
We have considered all arguments presented and, except as modified herein, affirm the judgment of the district court. Costs on appeal shall be taxed fifty percent to appellant, fifty percent to appellee. Neither party shall be liable for the other's attorney fees on appeal.
AFFIRMED AS MODIFIED.
NOTES
[1] The record indicates that Peggy's monthly net income level is $1385. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600101/ | 173 N.W.2d 866 (1970)
In the Matter of the ESTATE of Mary Groh STAAB, Deceased.
CATHOLIC CHARITIES OF the DIOCESE OF SIOUX CITY, a corporation not for profit, Appellant,
v.
Mary Groh STAAB'S ESTATE, Appellee,
St. Monica's Home, Appellee,
Heirs At Law of Mary Groh Staab, Appellees,
Good Shepherd's Home, Appellee.
No. 53652.
Supreme Court of Iowa.
January 13, 1970.
*867 Gill, Dunkle, Beekley & McCormick, Sioux City, for appellant.
E. P. Murray, LeMars, for Estate of Mary Groh Staab, appellee.
Kindig, Beebe, McCluhan & Rawlings, Sioux City, for St. Monica's Home, appellee.
Orville Hames, Remsen, for Richard Staab, Milo Staab, Irvin Staab and Roman Staab, heirs at law, appellees.
Charles Knudson, Marcus, for Mary Lauters and Lucy Gertrude McLaughlin, heirs at law, appellees.
*868 James McNally, LeMars, appointed as Guardian ad Litem for persons known or unknown, appellees.
Paul J. Yaneff, Sioux City, for The Good Shepherd's Home, appellee.
REES, Justice.
This is an action for a declaratory judgment under section 633.11, Code. Executors of estate of Mary Groh Staab, deceased, asked the Court for directions respecting the distribution of two shares of the residuary portion of the decedent's estate. From the decree of the trial court determining that a bequest of one-fourth share of the residue lapsed, the appellant appeals. We affirm.
Mary Groh Staab died testate October 4, 1967. Her will under scrutiny here was executed February 3, 1959. Our concern is with Item Nineteenth of the will, which provides:
"Nineteenth. All the rest, residue and remainder of my property of whatever kind or nature, I give, devise and bequeath unto St. Joseph's Roman Catholic Church, LeMars, Iowa, to be used in payment of church debt or such other purpose as the pastor in charge shall deem proper, St. Monica's Home, Sioux City, Iowa, St. Anthony's Orphanage, Sioux City, Iowa, and Good Shepherd's Home, Sioux City, Iowa, in equal shares, share and share alike."
St. Joseph's Roman Catholic Church of LeMars, Iowa and St. Anthony's Orphanage of Sioux City, Iowa, were in existence at testator's death, and still are, and still perform the functions for which they were organized and exist. St. Monica's Home of Sioux City, Iowa, an Iowa corporation with its principal place of business at Sioux City, was operated by the Sisters of St. Benedict as a home for unwed mothers and children under four years of age, for a period prior to the date of execution of testator's will and until September 1962 when it discontinued its operation for such purpose but retained its corporate identity under the same name and style and on September 16, 1963 commenced operation as a home for retired persons, or Old Folks' Home. It is still operated by the same religious order and the ownership of the physical plant remains unchanged.
Good Shepherd's Home of Sioux City, Iowa, was, at the date of testator's will, an Iowa body corporate with its principal place of business at Sioux City. At the time of the execution of the will it was an institution for the care of disturbed teenage girls who were not able to live in their own homes or could not properly adjust to society, operated by the Sisters of the Good Shepherd with headquarters or mother house in St. Paul, Minnesota. In midyear 1963 the license for the operation of the home was surrendered and the building and grounds were sold to St. Joseph's Mercy Hospital, the building was razed and the grounds converted to a parking lot. Thus, Good Shepherd's Home ceased to exist for any purpose over four years prior to testator's death.
Information concerning the discontinuance of operation of Good Shepherd's Home for any purpose, and respecting the change of charitable purposes of St. Monica's Home from a home for unwed mothers and small children to an Old Folks' Home was widely publicized and disseminated throughout the Diocese of Sioux City comprised of approximately the northwest quarter of Iowa, and particularly to the two Catholic parishes in LeMars, the home of testator.
Appellant, Catholic Charities of the Diocese of Sioux City, a nonprofit Iowa corporation, is defined as a child care and child placing agency licensed by the State. At the time of trial appellant operated, or had under its jurisdiction St. Estelle's Home, a maternity home, St. Anthony's Home, a child care institution (one of the residuary beneficiaries named in Item Nineteenth of decedent's will), and St. Barbara's, known as Villa Maria, an institution for the care of teenage children.
*869 In their application for a declaratory judgment, the executors of decedent's estate set out all of the foregoing facts, and further represented to the court that at the time of the execution of decedent's will, St. Monica's Home was operated for the care of unwed mothers and children under four years of age, and that its purposes had been diverted to the care of retired citizens, or as an Old Folks' Home. They further represented that since said home has no longer been operated for the purpose of caring for unwed mothers and small children, and in view of the fact that a new home, named Villa Maria, operated by the Catholic Sisters of St. Francis of Dubuque, Iowa, had been erected in Sioux City, and that one wing thereof, known as St. Estelle's, was operated for the care of unwed mothers and children under four years of age, it was the belief of the executors that it was the intention of the testator that the home which would receive the bequest would be a home operated for the care of unwed mothers and children under four years of age, and that it was the intention of testator that said bequest be paid to Villa Maria and not to St. Monica's Home. The executors further represented to the court in their petition for declaratory judgment that Good Shepherd's Home was no longer in existence, but that a wing of Villa Maria, known as St. Barbara's Wing, had been established, having for its purpose the care of disturbed teenage girls, the same function which had been performed by Good Shepherd's Home while it was in existence. Executors represented to the court it was their belief it was the intention of the testator that the bequest provided for in Item Nineteenth of her will for Good Shepherd's Home should be given to a Catholic home in Sioux City operated for the purpose as Good Shepherd's Home had been operated prior to its dissolution, and further represented to the court that in the event the trial court should determine that Good Shepherd's Home was not in existence and should determine that the bequest was not payable to Villa Maria, that the court should construe the will and determine whether or not the bequest to Good Shepherd's Home, as well as the bequest to St. Monica's Home, should be paid to other residuary legatees named in Item Nineteenth of decedent's will, namely, St. Joseph's Church and St. Anthony's Orphanage.
Answer of appellant Catholic Charities set out all of the foregoing pertinent facts and claimed the residuary bequests made by the decedent in Item Nineteenth of her will to Good Shepherd's Home and to St. Monica's Home should be made payable to Catholic Charities of the Diocese of Sioux City, or on behalf of Villa Maria, which was then performing the services which had been performed prior by the institutions named.
The trial court in its order and declaratory judgment directed the payment of the portion of the residuary estate devised to St. Monica's Home be paid to said home, and ordered and adjudged that the one-fourth share of the residuary estate which was devised to Good Shepherd's Home should lapse, finding there was no express provision in the will of the testator, or any justifiable construction which might be placed on said will, giving the residuary interest of Good Shepherd's Home to the other residuary legatees named in Item Nineteenth, and ordering the one-fourth interest devised to Good Shepherd's Home should be disposed of as intestate property and pass to the heirs at law of Mary Groh Staab, deceased. The court further found and adjudged there was no express provision in the will of testator, or any justifiable construction which might be placed thereon, requiring that St. Monica's Home be operated for the same purpose as it was operated at the time of the execution of decedent's will, and that St. Monica's Home serving its present purpose qualifies as a devisee.
Appellant relies for reversal upon five propositions: (1) The court erred in finding there was no possible construction which might be placed on the will that *870 would entitle Catholic Charities to the residuary devise given in said will to Good Shepherd's Home. (2) The court erred in failing to find a general charitable intent in the will of testator, and in failing to apply the doctrine of cy pres thereto. (3) The court erred in declaring the residuary devise to Good Shepherd's Home to lapse and to pass under the laws of intestate succession. (4) Section 504.11, Code, applied to the residuary bequest made to Good Shepherd's Home. (5) The court erred in finding that the one-fourth interest provided for in Item Nineteenth of testator's will passed to St. Monica's Home rather than to Catholic Charities.
The first three propositions relied upon by the appellant for reversal all have essentially the same thrust, and will be dealt with together. Propositions four and five will be dealt with separately.
I. Appellant asserts the trial court erred in finding there was no possible construction of the will of Mary Groh Staab which would entitle the appellant to the residuary devise given in said will to Good Shepherd's Home and in failing to find a general charitable intent in testator's will, and in failing to apply the doctrine of cy pres to the residuary bequest made to Good Shepherd's Home, and declaring the residuary devise to Good Shepherd's Home to lapse and pass under the laws of intestacy. The doctrine of cy pres is a doctrine of construction not of administration, and is only a liberal rule to ascertain the intention of a testator. Hodge v. Wellman, 191 Iowa 877, 878, 179 N.W. 534, 14 C.J.S. Charities section 52, p. 512. A significant limitation of the cy pres rule is that the gift's basic purpose cannot be changed, and property devised to education cannot be judicially diverted to religion, relief of the poor or sick, or general charity, nor vice versa. 14 C.J.S. Charities section 52, page 517; Board of Education of City of Rockford v. City of Rockford, 372 Ill. 442, 445, 24 N.E.2d 366, 371, 372. The testator here was acting within her undoubted right to designate the beneficiaries of her estate, and the law and the courts are bound to respect her clearly expressed wishes. However, as here, where the bequest is to a named beneficiary and no specific charitable purpose is directly expressed in clear and unequivocable terms, the difficulties attendant to a proper determination are manifold. If the charitable character of the bequest had been apparent from the will, all doubts would be resolved in its favor. Wilson v. First National Bank, 164 Iowa 402, 414, 145 N.W. 948, 952; Mary Franklin Home for Aged Women v. Edson, 193 Iowa 567, 573, 187 N.W. 546, 548; Eckles v. Lounsberry, 253 Iowa 172, 181, 111 N.W.2d 638, 640; In re Estate of Small, 244 Iowa 1209, 1227, 58 N.W.2d 477; In re Estate of Ditz, 254 Iowa 444, 449, 117 N.W.2d 825; Chapman v. Newell, 146 Iowa 415, 423, 125 N.W. 324. In passing on the questions presented to us by this appeal, we must be mindful that courts have no more authority to make wills for the dead than contracts for the living, according to judicial notions of fitness and propriety, and that it is much the duty of courts to uphold and enforce a will after death as to uphold and enforce an individual's contracts made during his life. Klumpert v. Vrieland, 142 Iowa 434, 436, 121 N.W. 34; Beidler v. Dehner, 178 Iowa 1338, 161 N.W. 32; Bash v. Bash, 9 Pa. 260; Dodge v. Williams, 46 Wis. 70, 1 N.W. 92; 50 N.W. 1103. Courts generally subscribe to the view that charitable bequests shall not be permitted to fail or lapse for lack of definiteness as to the purposes of the bequest. In re Estate of Cleven, 161 Iowa 289, 293, 294, 142 N.W. 986; Klumpert v. Vrieland, supra. Indeed, had the will under consideration here expressed any charitable purpose, the cy pres doctrine could be applied. Lupton v. Leander Clark College, 194 Iowa 1008, 1017, 1018, 187 N.W. 496; In re Estate of Nugen, 223 Iowa 428, 434, 272 N.W. 638. All parties to this appeal contend the intent of the testator must be determined from the will as a whole. We agree. Each paragraph of a will must be read in the light of the other provisions, and if *871 from a reading of the will as a whole, intent of testator is manifest, technical rules of construction must give way to indicated intent. In re Estate of Ritter, 239 Iowa 788, 796, 797, 32 N.W.2d 666, 2 A.L.R.2d 1301; Old Ladies' Home of Muscatine v. Hoffman, 117 Iowa 716, 717, 89 N.W. 1066, 1067. If the language of a will is unambiguous, plain and certain, the intention of the testator must be ascertained from the will itself and nothing else. In re Estate of Thompson, Iowa, 164 N.W.2d 141, 146. In re Estate of Artz, 254 Iowa 1064, 1070, 120 N.W.2d 418, 422; In re Estate of Zang, 255 Iowa 736, 739, 123 N.W. 2d 883, 885. Extrinsic evidence to show testator's intent may be resorted to only in the event there is determined to be ambiguities in the provisions of the will. In re Estate of Zang, supra. We perceive no ambiguity in the testator's will before us here.
Certainty of purpose in the dedication of an estate to charitable uses is fundamental. Chapman v. Newell, supra. Cases of this character must be determined upon principle according to the peculiar facts of each case. The will under consideration here contains no provision for reversion. Obviously the testator could not have contemplated that the provisions of her will could not in some way be carried out, and that her property would ultimately pass to her heirs. She did not, however, state or express a purpose in her will for which the bequests in Item Nineteenth were to be utilized, simply naming beneficiaries in such item. If this court were to adopt the construction for which counsel for appellant contends, it would be in effect making a will for the decedent, and reading into the will something which is not apparent from an instrument which is not in any sense ambiguous. Resultantly, therefore, we must conclude the trial court was correct in finding there was no possible construction of the will of the testator justifying the application of the doctrine of cy pres with respect to the bequest in the will in favor of Good Shepherd's Home, and in ordering the devise to Good Shepherd's Home to lapse and to pass under the laws of intestacy.
II. Appellant asserts section 504.11, Code, should have been applied to the residuary bequest made to Good Shepherd's Home. Section 504.11 provides, "When a local religious society shall have ceased to support a minister or leader or regular services and work for two years or more, or as defined by the rules of any incorporated state, diocesan, or district society with which it has been connected, it shall be deemed extinct, and its property may be taken charge of and controlled by such state or similar society of that denomination with which it had been connected." The appellant contends that the Legislature in enacting the cited section, was attempting to incorporate by legislation into the codified law of this state the cy pres doctrine, and that the appellant is, therefore, entitled to the benefit of such section. We must conclude, however, that the cited section applies only to property vested in extinct religious societies at the time the corporation ceased operations. A nonprofit corporation upon the surrender of its charter, ceases to be a body corporate just as would a corporation organized for profit. We must conclude that Good Shepherd's Home was not in existence at the date of decedent's death, from which date her will speaks, and was not qualified to accept and receive the devise or bequest provided for it in Item Nineteenth of decedent's will. Section 504.11, Code, has no application to the fact situation in this case.
III. Appellant further asserts the trial court erred in finding that the one-fourth portion of the residue passed to St. Monica's Home rather than to appellant. We are unable to agree with this contention. Here again, we are faced with the fact that the testator expressed no charitable purpose and merely designated her beneficiaries. St. Monica's Home was still in existence. It was at the date of the execution of testator's will an Iowa corporation with its principal place of business at Sioux City, and was operated by the *872 Sisters of St. Benedict as a home for unwed mothers and children under four years of age. The same religious order continued to operate the home until September 1962, when it discontinued its operation for such purposes but retained its corporate identity under the same name and style, and on September 16, 1963, began operating as a home for retired persons, or an Old Folks' Home, for which purposes it has continued to operate until the present. There is nothing apparent from the will of the testator which would have led the trial court to conclude that the testator intended any organization other than St. Monica's Home to be the object of her bounty. Had she intended the bequest provided for St. Monica's Home to have been used to benefit unwed mothers and children under the age of four years, she could have, and should have, clearly expressed such charitable purpose and intent in the will itself. For the trial court to have directed the payment of the bequest to St. Monica's Home to the appellant in this case would have necessitated the trial court's applying the cy pres doctrine here, and as above stated, the doctrine is applicable only where it becomes impossible or impractical or illegal to carry out the particular charitable purpose. In re Berry's Estate, 29 Wis.2d 506, 139 N. W.2d 72, 77. A devise to a society or organization existing for charitable purposes without a declaration of the use to which the gift is to be put is given in trust to carry out the objects for which the organization was created. In re Los Angeles County Pioneer Society, 40 Cal.2d 852, 257 P.2d 1, 15 Am.Jur.2d 43, section 35, Charities.
IV. We must assume testator selected language adapted to express her meaning, and that she knew and appreciated the effect of language used in her will. We must further assume she had knowledge of the effect of the change of mode of operation of St. Monica's Home and of the complete dissolution of Good Shepherd's Home. In re Estate of Braun, 256 Iowa 55, 60, 61, 126 N.W.2d 318. In re Estate of Davis, 204 Iowa 1231, 1236, 213 N.W. 396.
We conclude the order and declaratory judgment of the trial court was obedient to the terms of testator's will and affirm.
Affirmed.
All Justices concur except BECKER, J., who concurs specially.
BECKER, Justice (concurring specially).
I concur in the result and in the opinion except for the statement in Division I, that holds extrinsic evidence is inadmissible to determine intent except where there is said to be an ambiguity. Wills, like contracts, are composed of words. We have held the meaning of words, as used in contracts, to be susceptible to extrinsic evidence as an aid to interpretation. This on the theory words, de-hors the circumstances under which they are used, never fully and completely express the meaning of the person using them. Hamilton v. Wosepka, Iowa, 154 N.W.2d 164.
In this case the extrinsic evidence is not sufficient to indicate any meaning other than the plain and ordinary meaning to be given to the terms. But this is not to say evidence of the circumstances surrounding the use of the terms is inadmissible. Such strictures divert us away from a quest for the true intent of the testator; not toward it.
In several recent cases we have repeated the following rules: "Our position in will construction cases was well summarized in In re Estate of Larson, 256 Iowa 1392, 1395, 131 N.W.2d 503, 504. There we said the law is well settled (1) the testator's intent is the polestar and if expressed must prevail; (2) his intent must be gathered from a consideration of (a) all the language contained in the four corners of his will, (b) his scheme of distribution, (c) the circumstances surrounding him at the time he made his will, (d) the existing facts; and (3) technical rules or canons of construction should be resorted to only if the *873 language of the will is clearly ambiguous or conflicting or the testator's intent is for any reason uncertain. (Citations)." (Emphasis supplied). In the Matter of the Estate of Maude Leber Lamp, Iowa, 172 N. W.2d 254 (opinion filed November 12, 1969).
These rules are consistent with what is said in IX Wigmore on Evidence, section 2470, page 227: "The truth had finally to be recognized that words always need interpretation; that the process of interpretation inherently and invariably means the ascertainment of the association between words and external objects; and that this makes inevitable a free resort to extrinsic matters for applying and enforcing the document. `Words must be translated into things and facts.' Instead of the fallacious notion that `there should be interpretation only when it is needed', the fact is that there must always be interpretation. Perhaps the range of search need not be extensive, and perhaps the application of the document will be apparent at the first view; but there must always be a traveling out of the document, a comparison of its words with people and things. * * *." (Emphasis by author).
The rules just quoted are workable and leave room for the admission of extrinsic evidence as an aid to interpretation. Both the rules announced by the majority and the rules quoted in this special concurrence have been followed in the past. Often they are quoted in the same case. In the Matter of the Estate of Lamp, supra. They are inconsistent. I would follow one set of rules rather than move from one to the other as the exigency of the individual case dictates. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2695950/ | [Cite as Tribble v. Ohio Dept. of Pub. Safety, 2010-Ohio-2023.]
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
VICTORIA TRIBBLE
Plaintiff
v.
OHIO DEPARTMENT OF PUBLIC SAFETY
Defendant
Case No. 2009-06460-AD
Deputy Clerk Daniel R. Borchert
ENTRY OF DISMISSAL
{¶ 1} On July 22, 2009, plaintiff, Victoria Tribble, filed a complaint against
defendant, Ohio State Highway Patrol. Plaintiff alleges on January 9, 2009 between
10:30 a.m. and 11:00 a.m., she sustained personal injury tripping over a lift and falling
into a puddle of water. Plaintiff contends defendant’s agent’s negligent parking caused
her to exit the vehicle and sustain injury. Plaintiff contends she incurred medical
expenses and work loss but did not supply any medical records or bill or a statement
from her employer. She asserted the damages amounted to $249.47.
{¶ 2} Defendant filed a motion to dismiss. In support of the motion to dismiss,
defendant stated in pertinent part:
{¶ 3} “As part of the investigation regarding Ms. Tribble’s complaint, the Patrol
requested medical invoices from the hospital and a record from the employer verifying
the dates of absence (Please see attached, Defendant’s letter to Plaintiff, Exhibit 1).
The Patrol has requested this documentation from the Plaintiff to create a complete and
thorough investigation report, but Plaintiff has failed to respond to this request. As of
Case No. 2009-06460-AD -2- ENTRY
the date of this Motion to Dismiss, Plaintiff has yet to respond to the Patrol’s request for
more information.”
{¶ 4} In order to state a claim upon which relief can be granted, the plaintiff
must assert that defendant owed her a duty, breached that duty and the breach of the
duty proximately caused her injuries. Armstrong v. Best Buy Company, Inc., 99 Ohio
St. 3d 79, 2003-Ohio-2573. In other words, plaintiff must present sufficient evidence
necessary to require defendant to proceed with the case.
{¶ 5} In the case at bar, plaintiff has failed to do so. She has presented no
medical records or bills or presented the name of her employer and the time she
allegedly lost from work. Therefore, defendant’s motion to dismiss is GRANTED.
Plaintiff’s case is DISMISSED without prejudice. The court shall absorb the court costs
of this case.
________________________________
DANIEL R. BORCHERT
Deputy Clerk
Entry cc:
Victoria Tribble Zachary M. Swisher
2006 West Galbraith Road Ohio Department of Public Safety
Cincinnati, Ohio 45239 P.O. Box 182074
Columbus, Ohio 43218-2074
DRB/laa
Filed 1/22/10
Sent to S.C. reporter 5/7/10 | 01-03-2023 | 08-02-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1331256/ | 188 S.E.2d 30 (1972)
14 N.C.App. 236
STATE of North Carolina
v.
Larry James HUNTLEY.
No. 7226SC319.
Court of Appeals of North Carolina.
April 26, 1972.
*31 Atty. Gen. Robert Morgan and Associate Atty. Gen. Ann Reed, for the State.
Lila Bellar, Charlotte, for defendant appellant.
HEDRICK, Judge.
In his brief defendant's counsel asserts: "The court may not lawfully require an indigent defendant to reimburse the State for counsel fees paid on his behalf." Citing In Re Allen, 71 Cal. 2d 388, 78 Cal. Rptr. 207, 455 P.2d 143 (1969), the defendant contends that a probation condition requiring him to reimburse the State for the cost of his court-appointed counsel is an infringement on his constitutional right to counsel. In a similar case, State v. Foust, 13 N.C.App. 382, 185 S.E.2d 718 (1972), this Court rejected the same contention and held that as a condition of probation an indigent defendant could be required to reimburse the State for fees paid his court-appointed counsel.
Although we find the conditions defendant is charged with having violated to be valid, the proceeding must be remanded for the court did not make findings of fact sufficient to support its conclusion that the defendant's failure to make the payments set out in the probation judgment was willful or without lawful excuse. The court merely concluded that the defendant had willfully violated his probation condition by not making the payments and that he was in arrears $125. In State v. Foust, supra, the Court said: "* * * Has he had the financial ability to comply with the judgment at any time since he became obligated to pay? If not, has his continued inability to pay resulted from a lack of reasonable effort on his part or from conditions over which he had no control? These are essential questions which must be answered by appropriate findings of fact before the court can determine whether defendant's failure to comply was willful or without lawful excuse."
The judgment activating the sentence is vacated and the proceeding is remanded for further hearing in order that the judge may determine, by appropriate findings of fact, whether the failure of defendant to make the required payments was willful or without lawful excuse. The judge's findings of fact should be definite and not mere conclusions. State v. Foust, supra; State v. Caudle, 7 N.C.App. 276, 172 S.E.2d 231 (rev'd on other grounds, 276 N.C. 550, 173 S.E.2d 778); State v. Robinson, 248 N.C. 282, 103 S.E.2d 376 (1958).
Vacated and remanded.
BROCK and VAUGHN, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/380396/ | 626 F.2d 123
105 L.R.R.M. (BNA) 2570, 89 Lab.Cas. P 12,223
ST. ELIZABETH COMMUNITY HOSPITAL, Petitioner,v.NATIONAL LABOR RELATIONS BOARD, Respondent,andHospital and Institutional Workers' Local 250, SEIU,AFL-CIO, Intervenor.
No. 78-2959.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted Jan. 15, 1980.Decided Aug. 21, 1980.
J. Mark Montobbio, San Francisco, Cal., for petitioner.
Lynne Deitch, Washington, D. C., argued, for respondent.
David Rosenfeld, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for intervenor.
On Petition to Review a Decision of the National Labor Relations Board.
Before SNEED, PREGERSON, and ALARCON, Circuit Judges.
PER CURIAM:
1
This case arose on a petition for review and cross-application for enforcement of an order of the NLRB requiring the St. Elizabeth Community Hospital, a charitable institution owned and operated by a religious order, the Sisters of Mercy, to enter into collective bargaining with the Hospital and Institutional Workers, Local 250, SEIU, AFL-CIO (Union). The Board found that the hospital had violated §§ 8(a)(1) and (5) of the National Labor Relations Act, 29 U.S.C. §§ 158(a)(1) and (5), by refusing to bargain with the Union or to provide information relevant to collective bargaining.
2
We find that the Hospital's First Amendment challenge to the Board's jurisdiction was timely raised, and we remand to the Board for further consideration in light of NLRB v. Catholic Bishop, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979).
FACTS
3
In March 1977, the Union filed petitions with the Board seeking to represent four groups of employees of the Hospital. A representation hearing was held on March 28, 1977, at which the focus was on the status of different hospital employees. The Hospital did not question the Board's jurisdiction at that hearing. The Board's Regional Director, on May 20, 1977, determined the status of the various employees, defined four collective bargaining units and directed that an election be held. On June 1, the Hospital requested the Board to review the Regional Director's determinations regarding the eligibility to vote of several employees. The Board, by a telegraphic order, denied review on June 15, except as to those employees who the Hospital had contended were supervisors. As to these persons the Board's telegraphic order directed that they be permitted to vote, subject to challenge, and that their eligibility to vote could be determined after the election.
4
The next day, June 16, the election was held with the result that three of the bargaining units rejected union representation, while the fourth, consisting of service and maintenance employees, cast 43 votes for and 35 votes against union representation, with 14 votes being challenged. Objections to the conduct of the election were filed by the Hospital alleging that Union observers had improperly kept a voter list and that the Board's failure to make a more prompt final ruling on the supervisory status of the three head nurses and supply supervisor had impeded the Hospital's campaign efforts and misled employees as to their supervisors' views.
5
The Regional Director conducted an ex parte investigation and thereafter, on August 30, rendered a supplemental decision overruling these objections and disposing of the challenges to the votes of particular employees. The Hospital sought review of this decision by the Board on September 8, arguing for the first time in this proceeding that the Board lacked jurisdiction on First Amendment grounds. By a telegraphic order of November 20, the Board denied review. It also deferred consideration of the challenge to the central service supply supervisor's vote pending a revised tally of the ballots. This revised tally showed 45 votes for union representation, 40 votes against, and 3 undetermined challenged ballots. The Union was certified on December 1.
6
The Hospital refused to bargain and on January 6, 1978, a complaint was filed charging the Hospital with unfair labor practices under §§ 8(a)(1) and (5) of the Act, 29 U.S.C. §§ 158(a)(1) and (5) (1976). As an affirmative defense in its January 13th answer to the unfair labor practice complaint, the Hospital again raised the issue of the Board's lack of jurisdiction on First Amendment grounds. In a Decision and Order dated August 28, 1978, the Board granted a motion of the General Counsel for summary judgment. In that decision, the Board dismissed the Hospital's defense on the ground that, "All issues raised by (the Hospital) . . . were or could have been litigated in the prior representation proceeding, and (the Hospital) does not offer . . . any newly discovered or previously unavailable evidence, nor does it allege that any special circumstances exist herein which would require the Board," to find to the contrary. Thus the Board refused to address the merits of the Hospital's defense on the ground that the Hospital failed to claim that it had uncovered new evidence, unavailable at the time of the proceedings before the Regional Director. The Board therefore ordered the Hospital to bargain with the Union and to furnish, upon request by the Union, information necessary for bargaining purposes. The Hospital petitioned for review of the Board's order and the Board applied for enforcement. The Union's intervention completes the roster of parties before us.
JURISDICTION
7
The Board asserts that we should not consider the Hospital's First Amendment challenge to its jurisdiction because of the Hospital's failure to raise the issue "until late in the representation proceedings." Board's Brief, p. 7. It relies on Polynesian Cultural Center, Inc. v. NLRB, 582 F.2d 467, 472-73 (9th Cir. 1978). This reliance is misplaced. Unlike the employer in Polynesian Cultural Center, the Hospital in the instant case raised the First Amendment issue in the representation proceedings before the Board and did not defer its challenge to the enforcement proceedings. We think this is sufficient to require that the issue be considered by the Board although we acknowledge that the challenge was not made as promptly as it might have been.
8
The Hospital argues that the difficult and sensitive First Amendment questions described in NLRB v. Catholic Bishop, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), are present in this case and require us to hold that the Board's failure to exempt the Hospital from the NLRA violates the First Amendment. Since the facts relevant to a determination of these issues were not developed by the Board, the case will be remanded to the Board for further proceedings on the question of the Board's jurisdiction in light of the Supreme Court's opinion in Catholic Bishop. For us to deal with the issue before the facts of this case have been fully established would amount to the giving of an advisory opinion which we must decline to do.
9
Since the jurisdictional issue has not yet been settled, it would not be appropriate for us to address the representation issues. The question of the propriety of the Board's certification of the Union depends, of course, upon whether the Board had jurisdiction to issue such certification.
10
Remanded.
SNEED, Circuit Judge (dissenting):
11
I respectfully dissent.
12
The Hospital raised its First Amendment challenge in timely fashion during the representation proceedings and chose to stand on the record it had made. The Hospital's request for review of the Regional Director's supplemental decision described the religious character of the Hospital and contended that the Board's assertion of jurisdiction violated the Free Exercise and Establishment Clauses. Significantly, the Hospital did not request an opportunity to develop further facts with respect to the issue. Although the Board's two-sentence order denying review did not specifically discuss any of the arguments advanced by the Hospital, it is evident that in denying review the Board rejected the First Amendment challenge. The jurisdictional issue was raised again in the unfair labor practice proceedings but, as the Board pointed out, the Hospital did not offer any newly discovered or previously unavailable evidence and did not allege any specific circumstances designed to strengthen its challenge. Under these circumstances we have a duty to decide the case on the record made by the Hospital.
13
Moreover, I seriously doubt that the Hospital can establish a record that would justify ousting the Board's jurisdiction. Short of establishing that a substantial part of the treatment provided by the Hospital consisted of "faith healing," unaugmented by the usual procedures of a modern hospital, any record that the Hospital might establish is very likely to present to the Board and the court issues not different materially from that presently before us. Therefore, I would decide this case now. My belief that this case is presently ripe for decision is in the final analysis shaped by my perception of the First Amendment as presently interpreted by the Supreme Court. Perhaps it will serve some useful purpose to set forth this perception. Although I conclude that the Board has jurisdiction in this case and that a remand is useless, I shall not extend this dissent by dealing with the merits of the substantive labor law issues of which the Hospital sought review. These will, I am certain, be decided in due course.
14
The Hospital's First Amendment challenge perhaps would succeed had the Supreme Court in the years since Everson v. Board of Education, 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947), fashioned the "wall of separation between Church and State" to which Justice Black referred in his majority opinion in that case. 330 U.S. at 16, 67 S.Ct. at 512. This has not been the case, however. Whether one approaches the issue from the standpoint of the Establishment Clause or the Free Exercise Clause the Supreme Court teaches that accommodation more accurately describes the relationship between church and state than does the metaphor "wall of separation."
15
Thus, when the focus is upon the Establishment Clause, as in the Court's recent decision in Wolman v. Walter, 433 U.S. 229, 97 S.Ct. 2593, 53 L.Ed.2d 714 (1977), a three part test is employed to determine whether that Clause has been transgressed. In behalf of a plurality of the Court, Mr. Justice Blackmun wrote:
16
"In order to pass muster, a statute must have a secular legislative purpose, must have a principal or primary effect that neither advances nor inhibits religion, and must not foster an excessive government entanglement with religion." Id. at 236, 97 S.Ct. at 2599.
17
The terms and clauses "secular," "principal or primary," "neither advances nor inhibits," and "excessive government entanglement" clearly suggest the goals of accommodation and coexistence.
18
Similar goals emerge from the tests employed when the focus is upon the Free Exercise Clause. The Court, in evaluating Pennsylvania's Sunday-closing law, fashioned the following test for determining whether state regulation was valid:
19
"But if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose the burden." Braunfeld v. Brown, 366 U.S. 599, 607, 81 S.Ct. 1144, 1148, 6 L.Ed.2d 563 (1961).
20
The Court in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963), and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), found the state laws in each instance imposed an impermissibly heavy burden on the free exercise by individuals of their religious beliefs unsupported by any compelling state interest. These rubrics unmistakably suggest the necessity of balancing the interests of the state against those seeking relief from its burdens on religious grounds. The notions of accommodation and coexistence thus emerge here also.
21
Admittedly the terms "accommodation" and "coexistence" provide little clue to understanding the nature and essence of the "accommodation" and "coexistence" required by the First Amendment. This is not surprising. Much of the late and post-Roman history of the Western world reflects a search for the proper relationship between the affairs of the state and those of the spirit. The balance struck in one century proved unworkable in another. Justice Black in Everson sketched the history of that portion of this search most directly applicable to adoption by this Nation during its infancy of the First Amendment. 330 U.S. at 8-15, 67 S.Ct. at 507-511. Clearly the Founding Fathers desired to strike a balance quite different from that their fathers and forefathers had experienced. Most no doubt wanted neither a Godless people nor a religious state. Justice Black reasonably approximated the essence of their new balance when in Everson he observed:
22
"The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa." 330 U.S. at 15-16, 67 S.Ct. at 511.
23
These words, when understood as descriptive of issues that inflamed society prior to the Constitution's adoption, which is the way in which Justice Black appears to have used them, set forth precisely the manner in which they were resolved by the First Amendment. No longer could they inflame the people. They were settled. A new equilibrium was created between church and state. Maintenance of the new equilibrium, however, requires responses to new problems, the nature of which should be congruent with the general design of the new equilibrium. Can children be bused to parochial schools? Can free books be given by the states to such children? Can a member of the Seventh-Day Adventist Church be deprived of unemployment compensation benefits because of an unwillingness to work on Saturday? These and many more demand attention in part because the Nation asks "What is the answer that is most compatible with the First Amendment's resolution of the critical eighteenth century issues of church-state relations?"
24
Compatibility becomes more difficult to perceive as the roles of religion and the state are transformed from their eighteenth century pattern to that of the present day. A "wall" between a state, which exists only to provide the basic services dictated by the necessity to preserve order, and the churches within its boundaries is easier to maintain (although fire and police protection of church property requires at least momentary reflection) than is one between a pervasively penetrating welfare state and the religious beliefs, practices, and organizations of a people perhaps once more commencing a search in many directions for religious truth. See Note, Toward A Constitutional Definition of Religion, 91 Harv.L.Rev. 1956 (1978), passim. In the latter circumstances, the futility of a "wall" must be recognized. On the other hand, a betrayal of the Founding Fathers is unthinkable. The accommodations chosen, therefore, must neither render the people Godless nor make the state God.
25
The Supreme Court has established the markers by which one must be guided. This case requires that the initial focus be upon the Free Exercise Clause. Applying the markers set forth in Braunfeld, Sherbert, and Yoder, it is undeniable that the National Labor Relations Act, as amended by 1974 legislation which eliminated the exemption for nonprofit hospitals, is a general law within the power of Congress to enact. Its constitutional foundation is the Commerce Power. It is designed to serve a secular goal, viz., the improvement of labor-management relations. It imposes no burden on religious observances or activities.
26
Of course, it can be asserted that the secular goal of improving labor-management relations could be achieved substantially without subjecting church-owned and operated hospitals to the Act. This assertion leads irresistably to the Establishment Clause. Would the exclusion of church-owned and operated hospitals from the Act's reach serve to advance a particular religious organization impermissibly? I am inclined to think the question presents a substantial issue.
27
Returning to the three part test of Wolman v. Walter, supra, the purpose of the exclusion of church owned and operated hospitals might well be considered to be tainted by sectarian concerns and arguably its primary effect would be to advance a particular religious organization. This tentative response reflects the "double-barreled dilemma" of which Justice Stewart spoke in his concurring in the result opinion in Sherbert. 374 U.S. at 413-17, 83 S.Ct. at 1798-1801. In any event, Establishment Clause considerations, as required by the Supreme Court's interpretation of that clause, should retard any impulse to require exclusion of the Hospital in this case on Free Exercise grounds. Thus, an issue thought to involve one of the two great Clauses turns out also to involve the other. Standing in the wings as the Free Exercise Clause takes the stage is the Establishment Clause ready to appear and speak its part advising restraint. Furthermore, a reversal of the roles, with the Establishment Clause on the stage, presents few difficulties to the actors. In that case it is the Free Exercise Clause that in due course urges restraint.
28
The Hospital argues that NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 99 S.Ct. 1313, 59 L.Ed.2d 533 (1979), requires a holding that the Board lacks jurisdiction in this case. This is not so. In the first place, Catholic Bishop was decided on statutory grounds. The Court held that, in the absence of an affirmative intention on the part of Congress reflected in the statute or legislative history to extend jurisdiction to church-operated schools, it would not construe the NLRA to apply to such schools. Its refusal to apply the NLRA to church-operated schools enabled it to avoid difficult and sensitive First Amendment questions. This course is not open in this case.
29
The legislative history of the 1974 amendment to the NLRA, Pub.L. 93-360, § 1(a), 88 Stat. 395, which eliminated a statutory exemption from the Board's jurisdiction of nonprofit hospitals, reflects an affirmative intention to subject church-owned and operated hospitals to that jurisdiction. The Senate rejected an amendment to retain a limited exemption for church-sponsored hospitals. See Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 93rd Cong., 2d Sess., Legislative History of the Coverage of Nonprofit Hospitals Under the National Labor Relations Act, 1974. Senator Cranston, floor manager of the Senate Committee Bill and an opponent of the proposed religious exemption, argued that subjecting church-sponsored hospitals would not affect religious teaching or interpretation and was necessary to protect employees who are a part of the labor pool from which both non-sectarian and sectarian hospitals draw their employees. Id. at 133-34. His view prevailed. No clearer showing of an affirmative intent is needed.
30
The Hospital does not question this. In effect it says that the difficult and sensitive First Amendment questions described in Catholic Bishop are present in this case and require that it be exempt from the NLRA. The Supreme Court in Catholic Bishop mentioned that the exercise by the Board of its jurisdiction in parochial schools could require the Board to determine whether certain practices which might otherwise be unfair labor practices were mandated by religious doctrine, whether reliance on such doctrines was in good faith, and whether such doctrines limited the usual meaning of "terms and conditions of employment." 440 U.S. at 502-503, 99 S.Ct. at 1320. The Court also observed that mandatory collective bargaining would reduce the autonomy of clergy-administrators otherwise vested in them by church authority and that the very process of inquiry into the operation of parochial schools was intrusive on an activity substantially religious in character. Id. at 503, 99 S.Ct. at 1320. Finally, the Court stated that "(t)he church-teacher relationship in a church-operated school differs from the employment relationship in a public or other nonreligious school." Id. at 504, 99 S.Ct. at 1321.
31
These are indeed difficult and sensitive First Amendment issues. They do not, however, exist in this case to a significant extent. There is no demonstration, nor is one likely to be made within the context of the operation of an ordinary hospital, that religious doctrine in any way limits labor practices so as to compel an unfair labor practice or to alter what would otherwise be the meaning of "terms and conditions of employment." Lacking also is any showing of the manner in which collective bargaining might reduce the autonomy of the several members of the Sisters of Mercy who sit on the Hospital's governing board. Admittedly, application of the NLRA will result in an intrusion on the Hospital's activities, but this alone impairs no sectarian objective.
32
The Hospital urges that the mere possibility of impairment of sectarian objectives is enough to deprive the Board of jurisdiction. This is incorrect. The possibility of impairment must be more substantial than one based on dark speculation and forboding fancy. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971), is not to the contrary. Extensive findings were made by the district court in that case regarding the religious character of the Rhode Island parochial schools. No equivalent record exists here, nor in my view is it likely that such a record can be made in this case.
33
Under these circumstances I would hold that the Board's jurisdiction exists. | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1599680/ | 571 So.2d 813 (1990)
Waldo E. FRANCOIS
v.
James D. TUFTS, II (a/k/a J.D. Tuffts, II).
SUCCESSION OF Waldo Emerson FRANCOIS.
SUCCESSION OF Waldo E. FRANCOIS, a/k/a Waldo Emerson Francois.
Dorothy WEISFELD, et al.
v.
J.D. TUFTS, II, etc.
Nos. 89-CA-1472, 89-CA-1473, 89-CA-1474 and 89-CA-1475.
Court of Appeal of Louisiana, Fourth Circuit.
December 6, 1990.
Writ Denied February 8, 1991.
*814 Arthur L. Ballin, and Moise W. Dennery, Lemle & Kelleher, New Orleans, for appellant Dorothy W. Francois.
K. Eric Gisleson, Steeg and O'Connor, New Orleans, for appellees J.D. Tufts, II, Linda Tufts Hebbler, Robert G. Tufts, and Frederick J. Tufts.
H. Gordon Hartman, New Orleans, for appellees Jean Nelson McEvoy and Richard Eric Nelson.
A.D. Freeman, Jr., New Orleans, for appellee Curator ad hoc for Milten J. Acker, III, Wiltz J. Bernard, Jr., J. David Tufts, III, Lilly May Bonfield and Thomas N. Tufts.
Before SCHOTT, C.J., and LOBRANO and PLOTKIN, JJ.
LOBRANO, Judge.
This appeal arises out of several consolidated cases concerning the succession of the late Waldo E. Francois (Francois). In the case currently before this Court, Plaintiff/Appellant Dorothy Weisfeld Francois (Dorothy), wife of the deceased, brought suit against defendants/appellees J.D. Tufts, II (Tufts), and thirteen other heirs, in the Civil District Court for the Parish of Orleans. She made three requests: (1) that she be placed in possession of the marital portion, (2) that she receive an interim allowance, and (3) that she be placed in possession of certain negotiable bonds which she asserts were donated to her. The trial judge denied all three requests. Dorothy now appeals.
FACTS:
On October 6, 1982, shortly after the death of his wife of 53 years, Francois executed an Irrevocable Inter Vivos Trust (Trust) in favor of Tufts, his nephew/trustee, and thirteen other nieces and nephews. The corpus of the Trust was composed entirely of municipal bonds with a total face value of $940,000.00. While the Trust was executed before two witnesses, it was not duly acknowledged before a notary public by one of the attesting witnesses until June of 1983.
On October 14, 1982, a statutory will naming J.D. Tufts as executor was executed by Francois.
*815 In December of 1982, Waldo Francois met Dorothy. They were married on March 4, 1983. On March 14, 1983, Francois allegedly executed an olographic will stating in part, "I leave all I die possessed to my beloved wife Dorothy Weisfeld Francois."
On April 11, 1983, Francois suffered a stroke, and was hospitalized. On April 21, 1983, Francois allegedly executed a statutory will which stated in part, "I leave and bequeath all of my property, both immovable and moveable, corporeal and incorporeal to my wife Dorothy Weisfeld Francois." In May of 1983 Francois made an alleged donation of bonds to Dorothy.
In late June/early July 1983, Francois was placed in the Touro Infirmary Psychiatric Ward, diagnosed as being psychotic, incompetent and suffering dementia. On July 14, a petition in the name of Francois against Tufts asking that the Trust be declared null and void was filed. No mention of incompetence was made.
On October 15, 1983, Francois died.
The October 14, 1982 will was probated on October 18, 1983, with Tufts named as executor. Soon thereafter, Dorothy attempted to probate both the March 14, 1983 olographic will, and the April 21, 1983 statutory will.
On December 24, 1984, the Civil District Court for the Parish of Orleans ruled that the April 21, 1983 statutory will and the March 14, 1983 olographic will were both invalid. The court held that Francois' property was to be disposed of in accordance with the October 6, 1982 Trust, and the October 14, 1982 statutory will.
On June 6, 1985, Dorothy filed a petition for the marital portion.
On May 12, 1986, this court affirmed the trial court's decision regarding the validity of the Trust and the October 14, 1982 statutory will, stating the Trust to be "valid and complete when it was executed." Francois v. Tufts, 491 So.2d 673, 676 (La. App. 4th Cir.1986), writ den. 497 So.2d 308.
On May 21, 1987, Dorothy filed a petition for Declaratory Judgment alleging ownership of certain non-trust bonds.
On February 10, 1989, the Civil District Court for the Parish of Orleans rendered judgment denying the marital portion and any corresponding interim allowance, and ruling that the donation of the non-trust bonds was invalid due to lack of capacity of the donor, and failure by the donee to prove delivery.
On February 28, 1990, Dorothy filed the instant appeal.
The issues for our determination are whether Dorothy is entitled to the marital portion and whether the donation of bonds to her in May of 1983 is valid.
MARITAL PORTION
Civil Code article 2432 provides:
"When a spouse dies rich in comparison with the surviving spouse, the surviving spouse is entitled to claim the marital portion from the succession of the deceased spouse."
Dorothy advances several arguments as to why she is entitled to the benefits of the above article. First she claims that Francois' estate must fictitiously add to its mass the value of the bonds donated in trust. She claims that even though the trust has been held valid by this court,[1] its effective date is June 23, 1983, the date it was duly acknowledged by the subscribing witness and not October 6, 1982 the date executed by Francois. Because the trust took effect within one year of Francois' death, Dorothy cites La.R.S. 47:2406 as authority for adding its value to the mass of the estate.
In addition, she argues that a surviving spouse should not be deprived by the other spouse of the absolute right to share in the estate of the deceased by giving away during his lifetime the bulk of his assets. In support she cites Malone v. Cannon, 215 La. 939, 41 So.2d 837 (1949).
Dorothy concludes with the assertion that by fictitiously adding the trust bonds to the value of Francois' estate, it would have a net value of $1,018,539.62 rather than the $235,322.00 reflected on the descriptive *816 list. Using her valuations, she urges that Francois died "rich" in comparison to her and thus she is entitled to her marital one-fourth.[2] For several reasons, we reject these arguments.
La.R.S. 47:2406 has absolutely no application to the issue before us. That statute provides for the method of computing inheritance taxes where an inter vivos gift is made within one year of decedent's death. It provides for a rebuttable presumption that the gift was made in contemplation of death, and unless overcome by sufficient evidence to the contrary, "... shall be deemed a part of the succession of the person who has so donated or alienated the property for purposes of computing the inheritance tax due by the succession, legatees or heirs of the person." Clearly, the statute has no bearing on an estate's value for purposes of determining whether the marital portion is applicable. Its sole purpose is the computation of inheritance taxes. Therefore, irrespective of the effective date of the trust, Dorothy's reliance on this statute has no merit.
Dorothy urges, however, that Malone v. Cannon, supra, supports her position that a decedent cannot, by inter vivos donation, deny the surviving spouse of the benefits the law obligates an estate to provide under the circumstances of Article 2432.
Malone v. Cannon held, inter alia, that a surviving spouse had the right to seek the marital portion even though the decedent spouse had, by last will and testament, left her entire estate to her mother. The court observed that the right "... to claim it [marital portion] in a judicial proceeding is not the same as to sue for the reduction of a donation under Article 1504."[3] Because the case was remanded to the trial court on other grounds, there is no further expression of whether or not a surviving spouse has the right to collate or reduce inter vivos donations to determine the decedent's estate for marital portion purposes.
We have not been referred to any article of the civil code or statute, and we know of none, which authorizes the fictitious adding of donations to a decedent's estate for marital portion purposes. The code clearly limits collation and reduction of donations to forced heirs. C.C. articles 1235, 1236, 1504. We do not dispute, as Dorothy argues, that the marital portion is an incident of the matrimonial regime and a charge on the succession of the deceased spouse. We can envision extreme situations that might occur where justice may require the reduction or collation of a deathbed donation in determining if the marital portion is applicable. However, we need not make a definitive ruling on that crucial legal issue in this case. Under any of the scenarios advanced by Dorothy we determine that she has failed to satisfy the requirements which would entitle her to the marital portion.
The nature of the right to claim the marital portion has been described by our Supreme Court as follows:
"... the right conferred by the article... is in [the] nature of a charity or bounty of the surviving consort left in penurious circumstances.... The fourth is given in honor of the past marriage, that the survivor be retained in the previous accustomed rank and condition." Succession of Lichentag, 363 So.2d 706 (La.1978)
Thus, "... one spouse is not to be deprived, by reason of the other's death, of a standard of living similar in style, comfort and elegance to that existent during the marriage." Succession of Ziifle, 378 So.2d 500, 501 (La.App. 4th Cir.1979), writ denied, 381 So.2d 1223 (1980). The object of the marital fourth is "... to prevent a spouse on the death of the other from being left in *817 abject poverty after having become accustomed to the wealth of the decedent." Malone v. Cannon, supra, 41 So.2d at 843. The question of whether one spouse dies "rich" in comparison to the other is relative. See, C.C. Art. 2432, comment (c). It requires the court to not only compare the patrimonial assets of the deceased with those of the survivor, but also requires a determination of the effect a spouse's death has on the lifestyle of the survivor. Id.; Succession of Ziifle, supra. The time for making those determinations is the date of death of the spouse. Malone v. Cannon, supra; Succession of Kunemann, 115 La. 604, 39 So. 702 (1905), Succession of Monroe, 494 So.2d 336 (La.App. 4th Cir. 1986). Although there is no precise formula to guide the courts in comparing the relative wealth of the two estates, it has been generally recognized that "five to one" is the minimal ratio they will consider. Smitherman v. Smitherman, 240 So.2d 6 (La.App. 2nd Cir.1970).
The trial court found that Dorothy had assets valued at $267,221.83[4] as of October 15, 1983, the date of Francois' death. Assuming arguendo that the trust is considered in computing Francois' estate,[5] its valuation would be $1,013,539. The relative comparison between the two would be 3.8 to 1, far below what the courts have heretofore considered the minimal.[6] More important, however, is the fact that there is no evidence that Dorothy's lifestyle changed on Francois' death.
Francois and Dorothy were married on March 4, 1983. Francois died on October 15, 1983. For approximately two days in April, they were separated. Dorothy returned on April 12th. On that date Francois had a stroke and was hospitalized through April 23rd. He was also hospitalized from approximately June 8th until his death, except for one and a half days. He was diagnosed as psychotic and suffering from severe memory loss. In September Dorothy filed a petition for Francois' interdiction. Her testimony at an earlier hearing in 1984[7] reflects the rather "bad times," as she describes it, she had during the short period of her marriage with Francois. There is no evidence which shows a "wealthier" lifestyle change after her marriage, nor any which shows she was required to drastically reduce her style of living after Francois' death. To the contrary, the evidence shows she had a home in Metairie valued at $193,000.00, plus two automobiles, jewelry, and at least $12,000.00 in the bank.
In addition, prior to her marriage, Dorothy was employed at Mercedes-Benz as a salesperson, a job which she retained throughout most of her marriage, and for a year after Francois' death. At the time of his death she was earning $2,000.00 per month.
Dorothy argues, however, that the trial court erred in computing the value of her estate by failing to consider her liabilities as reflected on Exhibits 2 and 3, and in computing the correct balance in her bank account. The court found that Dorothy's assets at the time of Francois' death totaled $267,221.83.
Dorothy claims that she had a negative balance of $75.71 in her bank account as of the date of Francois' death. She urges that the balance of $12,141.83 was not achieved until one month later. Candidly, *818 the evidence is confusing on this point. The testimony refers to an exhibit S-4 which is not in the record. However, it appears that Dorothy received $7,500.00 as the widow's allowance two days after Francois' death, and $10,000.00 in insurance proceeds. Apparently these sums were placed in the account. The trial court erred by listing the insurance proceeds as a separate item since they were already included in the bank balance. However, we conclude that the $10,000.00 reduction in asset valuation is not sufficient to alter our ultimate decision in this matter.
With respect to the liabilities, the only evidence of the existence of the mortgages, their execution date (whether before or after the marriage) and, more important, their balances as of Francois' death, is the self serving testimony of Dorothy which the trial court rejected. The same is true for the outstanding insurance loans listed on the statements written by her.
Obviously, with respect to these issues, the trial court made a credibility call which we cannot say is manifestly erroneous. In its reasons for judgment, the trial court stated that, "the Court finds that mover has simply failed in her burden to produce competent and/or credible evidence which would establish her debts, and in turn refute the value of her assets, as of the date of death, October 15, 1983."
We find no error by the trial court in rejecting Dorothy's claim for the marital portion.
THE INTERIM ALLOWANCE
Pursuant to La.C.C. Art. 2437, the surviving spouse will be entitled to a periodic allowance, when during the administration of the succession, it appears that the surviving spouse will be entitled to the marital portion. Because we conclude she is not entitled to the marital portion, the trial court was correct in denying an interim allowance.
THE NON-TRUST BONDS
The trial court held that the manual donation by Francois to Dorothy of certain non-trust bonds with a face value of $100,000.00 was invalid because Francois was without the mental capacity to make a gift nor was there proof of delivery. We disagree.
There is a presumption of competency which places the burden of proof upon the opponent of the donation. The question of a "lucid interval" arises only if incompetency is established in the first instance. In this case the presumption of competency was never overcome by appellees so that the question of a "lucid interval" was never properly before the court.
In concluding Francois lacked mental capacity the trial court relied on this Court's decision in the previous case between the parties. Francois v. Tufts, supra. In that case, the question was whether Francois was competent to execute a statutory will on April 21, 1983. This court analyzed the evidence on both sides of the controversy and resolved the question on the basis of Dr. Adriani's testimony. A pharmacologist, he testified that Francois was incompetent to execute a valid will on April 21, 1983 because of the drugs he was given between the time he was admitted to the hospital on April 12 and the date of the will. Id. at page 678. The question before us is whether Francois was competent to make a valid donation on May 13. There is nothing in the record to suggest that he took these incompetency-producing drugs after April 21. Consequently, there was no evidence to rebut the presumption that Francois was competent to make a valid donation of the bonds to appellant. The trial court committed reversible error in placing the burden on Dorothy to prove a lucid interval under these circumstances. The burden was on Tufts all along to prove Francois' incompetence and they failed to carry it. In fact, they offered no evidence at all. That Francois was subsequently hospitalized on June 8th has no probative value as to his competency four weeks earlier.
The trial court also found no evidence of manual delivery of the bonds. In doing so the court seemed to invoke some sort of an adverse presumption against Dorothy for failing to call as witnesses her *819 lawyer and his secretary who, she said, were present when the delivery was made. No such adverse presumption was applicable. Dorothy testified that Francois gave her the bonds. That testimony is corroborated by that fact that they were in her possession when Francois died and turned over to the executor by her. There was no evidence to the contrary. Under these circumstances we conclude that Dorothy's failure to call witnesses whose testimony would simply be cumulative does not negate the positive proof of delivery.
We therefore affirm that portion of the trial court judgment which denied Dorothy the marital portion, and reverse that portion which invalidated the donation.
AFFIRMED IN PART; REVERSED IN PART.
SCHOTT, Chief Judge, concurs in the result:
I completely agree with the analysis and conclusion of my colleagues with respect to the error of the trial court in declaring as invalid the donation of the bonds to appellant. I likewise agree that the trial court's computation of the value of appellant's estate without regard to the alleged mortgage balances was not manifestly erroneous.
In the light of these findings appellant's estate was worth far more than an amount which would entitle her to the marital fourth.
In any event, I find no merit in appellant's argument that Francois' premarital donation of the bonds to the trust did not take effect until the instrument was acknowledged in June. This flies in the face of this court's previous opinion by which we are bound. A widow claiming the marital fourth has no standing to attack donations made by her husband before they were married.
PLOTKIN, Judge, concurs with the result and assigns written reasons:
Although I believe that the majority reached the correct result on all the issues presented by this complicated successions case, I disagree with the reasons assigned on several of the issues. Thus, I respectfully concur.
This case is the latest of several conflicts between the same parties concerning the succession of Waldo E. Francois. The litigants include the decedent's widow, plaintiff Dorothy Weisfeld Francois, and his nephew, J. D. Tufts, who is also the executor of his estate and the representative of Mr. Francois' other nieces and nephews, all of whom are beneficiaries of a trust established by the decedent. In this action, Mrs. Francois seeks two things: (1) a declaration that she is the owner of some nontrust negotiable bonds allegedly given to her by Mr. Francois in an inter vivos manual donation and (2) a declaration that she is entitled to a marital portion and an interim allowance.
Factually, the case is very complex; however, the operative facts for deciding the issues involved in this particular action can be briefly summarized as follows: On October 6, 1982, Mr. Francois signed a document creating an irrevocable inter vivos trust, naming Mr. Tufts executor. The document was notarized sometime between January 1 and August 10, 1983. Mr. Francois and the plaintiff were married on March 4, 1983. Thereafter, the trust was duly acknowledged by one of the witnesses as required by law on June 13, 1983. Mr. Francois died on October 15, 1983.
Donation of Bonds
The trial court found that Mrs. Francois had failed to prove a valid inter vivos donation of $96,292.38 in non-trust bonds. This decision was based on the fact that in a prior action, the courts in this state ruled that Mr. Francois was incompetent to execute a statutory will on April 21, 1983. The trial court reasoned that since Mr. Francois was incompetent on April 21, 1983, and Mrs. Francois alleged that the manual donation occurred on May 13, 1983, Mrs. Francois had the burden of proving a "lucid interval" before the donation could be considered valid.
The majority has reversed on this issue, invoking the presumption of capacity and *820 finding that Mrs. Francois had no obligation to prove a "lucid interval." This decision is based on evidence from the previous trial that Mr. Francois' incapacity on April 21 was caused by a drug administered sometime between April 12 and that date. The majority concludes correctly that there is no record evidence whatsoever that Mr. Francois was incompetent on May 13.
I agree with this analysis. Additionally, I believe that testimony presented in this action proves overwhelmingly that Mrs. Francois is entitled to the bonds. The evidence is uncontroverted that Mr. Francois manually delivered the bonds to Mrs. Francois in her attorney's office and that she immediately placed those bonds into a safety deposit box to which she was the only person with access. See Succession of Young, 563 So.2d 502 (La.App. 4th Cir. 1990).
For these reasons plus those given by the majority, I concur in the decision reversing the trial court's judgment denying Mrs. Francois possession of the non-trust bonds.
Marital Portion
A surviving spouse's right to a marital portion is established by La.C.C. art. 2432 et seq. La.C.C. art. 2432 provides that a surviving spouse is entitled to a marital portion if the decedent died "rich in comparison with the surviving spouse." If the decedent had no children, the amount of the marital portion is one-fourth of the value of the succession. La.C.C. art. 2435. The right to an interim allowance during the administration of the succession is premised on the right to receive a marital portion. La.C.C. art. 2437. The caselaw has established that the time for determining the survivor's right to a marital portion is the date of death. Malone v. Cannon, 215 La. 939, 41 So.2d 837, 840 (La.1949).
After hearing all the evidence in the instant case, the trial court determined that on the date of death, October 15, 1983, Mr. Francois' estate was valued at $235,322, while Mrs. Francois' estate was valued at $267,221.83. On the basis of these findings, the trial court denied Mrs. Francois' petition for a marital portion and an interim allowance. Mrs. Francois contests this conclusion, arguing that the trial judge's calculations of both her late husband's estate and her own estate were incorrect. Mr. Francois' Estate
Mrs. Francois' attempt to prove that the calculation of Mr. Francois' estate was incorrect is based on her attempt to traverse the descriptive list filed by Mr. Tufts as executor of the estate and accepted by the trial court as prima facie proof of the value of the estate. Her attempt to traverse the descriptive list is based on her contention that the negotiable bonds which represent the corpus of the trust, valued at $783,217.62, should have been included on the list. That contention is itself premised on two arguments: (1) That the trust was not "executed" until it was acknowledged by the witness on June 23, 1983 and (2) since the trust was executed within one year of the decedent's death, the value of the bonds which form the corpus of the trust should be added back into the estate under the provisions of LSA-R.S. 47:2406.
This court has previously held that the trust was "valid and complete when it was executed." Francois v. Tufts, 491 So.2d 673, 676 (La.App. 4th Cir.), writ denied 497 So.2d 308 (La.1986). However, that opinion failed to state whether the trust was executed on the date it was signed by Mr. Francois on October 6, 1982, or on the date that the instrument was duly acknowledged by the witness on June 23, 1983. Mrs. Francois argues that the trust was executed on the date of the witness' acknowledgment, while Mr. Tufts argues that it was executed on the date it was signed by the decedent. The opinion writer neglects to definitively decide this issue; however, the concurring judge finds that the trust took effect when the decedent signed the instrument and states that the plaintiff has no standing to attack donations made by her husband before they were married. I disagree with both analyses.
LSA-R.S. 9:1752, relative to creation of inter vivos trusts, states that they are created *821 "only by authentic act or by act under private signature executed in the presence of two witnesses and duly acknowledged by the settlor or by the affidavit of one of the attesting witnesses." That language clearly requires that the trust be acknowledged by one of the witnesses before a valid trust is created. Thus, I would agree with Mrs. Francois on this issue and would hold that the trust was not executed until the witness acknowledgment occurred on June 13, 1983. In either case, I do not believe that Mrs. Francois lacks capacity to attack the donation.
However, like the majority, I disagree with Mrs. Francois' contention that the value of the corpus of the trust should be added into the estate under the provisions of LSA-R.S. 47:2406. LSA-R.S. 47:2406 establishes a presumption that donations made within a year of death, based on inadequate consideration, were made in contemplation of death for purposes of calculation of estate taxes. The majority states correctly that that statute has absolutely no application in the determination of whether a surviving spouse is entitled to a marital portion. However, I disagree with the majority's speculation that some type of "collation or reduction" to a decedent's estate for purposes of determining entitlement to a marital portion might be required in some "extreme situations." Nothing in Louisiana law justifies such speculation. Collation and reduction are clearly limited to actions involving forced heirs; a surviving spouse could never be entitled to their benefits regardless of the situation.
In summary, I agree with the majority's conclusions that Mrs. Francois failed to traverse the descriptive list and with this acceptance of the trial court's valuation of Mr. Francois' estate at $235,322, as reflected by the descriptive list. However, since we have decided that Mrs. Francois is entitled to ownership of the non-trust bonds, the value of the estate must be reduced by $96,292.62, making the value of the decedent's estate for calculation of the marital portion $139,029.38.
Mrs. Francois' Estate
I disagree with both the trial court and the majority in the proper calculation of Mrs. Francois' estate. In valuing Mrs. Francois' assets at $267,221.83, the trial court rejected Mrs. Francois' testimony concerning three mortgages against her home on Livingston Street in Metairie. The majority accepted the trial court's judgment on this issue. Mrs. Francois' estate is reduced $10,000 by the majority because a life insurance policy was counted twice by the trial court. Additionally, the majority awarded Mrs. Francois the nontrust bonds, increasing her estate by $96,292.38. Thus, Mrs. Francois' estate, without regard to the mortgages, should be calculated as follows:
$267,221.83 (Trial judge's calculation)
- 10,000.00 (Insurance proceeds)
-----------
$257,221.83
+ 96,292.38 (Value of non-trust bonds)
-----------
$353,514.21 TOTAL
After reading the record, I would hold that Mrs. Francois met her burden of proving that she had three mortgages against her home. At trial, Mrs. Francois testified from the bank books representing those mortgages and stated that she had liabilities against the house totalling $293,759.05 at the time of Mr. Francois' death on October 15, 1983. Additionally, Mrs. Francois placed into the record copies of two balance sheets which listed her assets and liabilities in detail. During the trial, the parties discussed supplementing the record with copies of the original mortgages; it is unclear whether Mrs. Francois' attorney or Mr. Tufts' attorney had the responsibility of securing those copies, but apparently it was never done. However, the bank books possessed by Mrs. Francois on the day of trial were the best evidence of the amount due on the date of death; the original mortgages would have reflected only the total amount of money borrowed. Uncontroverted evidence should be taken as true in the absence of some showing that the evidence is false or unreliable. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1150 (La.1979). Appellate courts are not required to accept a trial court's refusal to *822 accept uncontroverted testimony "where the record indicates no sound reason for its rejection." Id. In the instant case, not only does the record "indicate no sound reason" for the rejection of Mrs. Francois' testimony, her testimony is actually supported by the objective evidence of her bank book balances. Therefore, I would reduce the value of Mrs. Francois' estate by $293,759.05 to reflect the value of the mortgages on the house on Livingston Street that were proven at trial. I would calculate Mrs. Francois' estate as follows:
$353,514.21 (Total assets)
- 293,759.05 (Total liabilities)
------------
$ 59,755.16.
Entitlement to Marital Portion
Under my analysis, the relative values of the estates of Mr. and Mrs. Francois on the date of death would be $139,029.62 and $59,755.16, respectively. Thus, the ratio of Mr. Francois' estate to Mrs. Francois' estate is less than three to one, and far less than the five-to-one rule pronounced by the majority. However, I disagree with the majority's adoption of that rule, which was stated in Smitherman v. Smitherman, 240 So.2d 6, 9 (La.App. 2d Cir.1970). In that case, the second circuit listed pre-1970 cases in which a surviving spouse claimed entitlement to a marital portion and concluded that the smallest ratio in which the marital portion was allowed was five-toone. Nonetheless, despite the fact that reference to the ratio is made in the comments to La.C.C. art. 2432, a study of the relevant jurisprudence reveals that it has not been officially adopted by other courts. In fact, this court has previously rejected the strict application of the ratio, noting in Succession of Ziifle, 378 So.2d 500 (La. App. 4th Cir.), writ denied 381 So.2d 1223 (La.1980) that "by its own terms, [the ratio] becomes patently ridiculous when carried to an extreme." Id. at 501.
The purpose of the marital portion provisions is "to prevent a spouse on the death of the other from being left in abject poverty after having become accustomed to the wealth of the decedent." Malone, supra, 41 So.2d at 843. Thus, determination of whether one spouse died "rich" in comparison to the other should be made on the basis of an individual comparison of the patrimonial assets of the deceased with those of the survivor. Id. In this case, a comparison of the assets of the two spouses reveals that Mr. Francois did not die "rich" in comparison to Mrs. Francois. Therefore, for the reasons stated, I concur in the majority's decision affirming the trial court on this issue.
NOTES
[1] Francois v. Tufts, supra.
[2] Civil Code Article 2434 provides that when a decedent leaves no children, as in Francois' case, and the surviving widow is entitled to the marital portion, that portion shall be one-fourth of the estate, not to exceed one million dollars.
[3] Civil Code article 1504 provides that "... the reduction of the donation, whether intervivos or mortis causa, can be sued for only by forced heirs, or by their heirs or assigns;". Thus, the defendants unsuccessfully argued in Malone that the surviving spouse was precluded from seeking reduction of the decedent's testamentary dispositions.
[4] For purposes of our discussion we use the trial court's figures which do not include the value of the donated non-trust bonds. Even though, for the reasons stated later in this opinion, we conclude Dorothy owns these bonds, that factor is not considered in our rejection of the marital portion.
[5] It is not necessary that this Court reach a conclusion on the issue of when the trust became effective. Although Judge Plotkin, in his concurring opinion, reaches a result on this issue, it makes no difference in the reasoning supporting his result, nor does it make a difference in this writer's result. That issue is simply not necessary to decide this case.
[6] We do not suggest that the jurisprudence has "carved in stone" the five to one ratio, nor do we pronounce it as a definitive guideline, as the concurring opinion of Judge Plotkin suggests. Smitherman is cited for illustrative purposes. The more important reasons for this decision is the lack of evidence in Dorothy's lifestyle change.
[7] The transcript of the previous proceeding was introduced in evidence in the instant matter. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599913/ | 571 So.2d 802 (1990)
WINFORD COMPANY, INC., Plaintiff,
v.
WEBSTER GRAVEL AND ASPHALT, INC., Ark-La-Tex Auto Auction, Inc., et al., Defendants.
No. 21,994-CA.
Court of Appeal of Louisiana, Second Circuit.
December 5, 1990.
*803 Campbell, Campbell & Johnson by James M. Johnson, Minden, for appellee.
Fish & Montgomery by John W. Montgomery, Minden, for defendant Webster Gravel & Asphalt Co., Inc.
Robert J. Donovan, Jr., Shreveport, for defendants-appellants Edward L. Blakey, Katherine Dees Blakey and Ark-La-Tex Auto Auction, Inc.
Before SEXTON, NORRIS and HIGHTOWER, JJ.
HIGHTOWER, Judge.
This is an appeal from a judgment awarding the contract price for construction of an asphalt parking lot and recognizing a Private Works Act lien. For the reasons hereinafter expressed, we affirm in part and reverse in part.
FACTS AND BACKGROUND
In 1983, Webster Gravel and Asphalt, Inc. ("Webster") orally contracted to construct a parking lot for Ark-La-Tex Auto, Inc. ("Ark-La-Tex") for a total price of $71,409. The facility would be placed upon *804 land owned by Edward Blakey and his wife, but leased to Ark-La-Tex, a corporation owned entirely by the Blakeys and engaged in the automobile auction business. Webster subcontracted all phases of the project, with Haddox Contractor's, Inc. ("Haddox") to prepare the soil or base, and with Winford Company, Inc. ("Winford") to do the surfacing. Haddox and Winford would receive $49,960.30 and $16,332.40, respectively, leaving the remaining $5,090.30 to Webster.
Blakey, acting on behalf of Ark-La-Tex, furnished no written plans or specifications. He prescribed, however, that the soil preparation be accomplished with lime only and that an asphalt penetration seal then be applied to the surface. Apparently, his knowledge of the technical aspects had been acquired through conversations with other persons involved in such work. Although the testimony conflicted, there is evidence that the presidents of the three construction companies, J.W. Dickinson, Lamar Haddox, and Jim Winford, voiced their concerns that the chosen method of construction might be inadequate. Indeed, Blakey declined suggestions for the utilization of soil cement as a ground stabilizer.
Haddox performed the ground preparation sometime before September 17, 1983, the day that Winford applied the penetration seal to the surface. Winford's job superintendent testified that he mentioned the instability of the base in several conversations with Blakey. Nevertheless, the Ark-La-Tex president did nothing, and the surface laying proceeded. Upon completion of the work, the lot rapidly deteriorated. Thereafter, in February 1984, the lessee corporation employed another contractor to construct a new parking lot on the site.
In August 1984, Winford filed suit against Webster, Ark-La-Tex, and the Blakeys, for the $16,332.40 amount and recognition of a lien previously filed on the Blakey property. Webster answered and also sought, by third party demand, recovery of its $71,409 contract price from Ark-La-Tex and the Blakeys (that corporation and those individuals to be sometimes collectively referred to as "defendants"). Claiming to be a party to the general contract, Haddox intervened against defendants. In addition to answering all claims, Ark-La-Tex and the Blakeys presented third party and reconventional demands against the three contractors, alleging damages for defective construction and improper workmanship.
After one day of trial on January 15, 1987, the proceedings adjourned to a later date. Subsequent deaths of Webster's president and an attorney's family member extended the postponement until December 21 and 22, 1988. In a written opinion, the trial court found that a contract existed between Ark-La-Tex and Webster. The decision thus rejected Haddox's intervention, that corporation and Winford being held to be subcontractors.
The trial court further concluded that the failure of the parking lot surface did not result from improper workmanship or materials, but from improper design for which responsibility rested with Ark-La-Tex. Applying LSA-R.S. 9:2771, which relieves a contractor from liability for deterioration or defects resulting from the insufficiency of plans and specifications which he does not provide, the trial court deemed Webster, Haddox, and Winford blameless. Hence, the court awarded the full contract sum to Webster, and granted Winford judgment against Webster for its subcontract price. Additionally, the judgment recognized Winford's lien. Haddox, not having made demand against Webster, received no award after rejection of the intervention. Claims by the Blakeys and Ark-La-Tex against the three contractors were rejected. This appeal, by only Ark-La-Tex and the Blakeys, followed the overruling of a motion for new trial.
ACCOUNTABILITY OF THE CONTRACTORS
Several assignments of error concern the judgment in favor of Webster and the rejection of appellants' demands against the construction firms. Appellants maintain the trial court did not hold the contractors to the duty, implicit in every building contract, of constructing work that is suitable *805 for its intended purpose and free from defects in materials and workmanship. Additionally, LSA-R.S. 9:2771 is asserted to be inapplicable since written plans and specifications did not exist. Appellants further contend that the evidence failed to preponderate that the oral contract allocated the risk of loss for defects to Ark-La-Tex.
Of course, this court's review is constrained by the manifest error standard, which demands that findings of fact by the trial court be given great deference and disturbed only when clearly wrong. Even if there is conflict in the testimony, reasonable inferences of fact should not be disturbed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), on remand, 370 So.2d 1262 (La.App. 3d Cir.1979), writ denied, 374 So.2d 660 (La.1979). Also, when findings of fact are based on decisions regarding the credibility of witnesses, respect should be given those conclusions, for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on understanding and believing what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989). Indeed, this court is mandated not to substitute its own evaluations and inferences for those of the trier of fact. Wood v. Haas, 451 So.2d 160 (La.App. 1st Cir.1984), writ denied, 458 So.2d 124 (La. 1984).
The record discloses that Blakey discussed the project with several people knowledgeable in the field of parking lot construction and obtained a soil analysis from Southwest Laboratories. His specifications for the job, which he described as being "in his head," required treatment of the soil base with lime only, followed by application of a sealant consisting of an asphalt and pea gravel mixture. The evidence preponderates that subsequent construction of the lot occurred in accordance with that plan.
The testimony of R.E. Dillon, an expert in the field of civil engineering and the design and construction of parking lots and highways, indicated that the project met the requirements of the plans and specifications. He further concluded that no deficiencies existed in the actual work methods employed by the contractors. Instead, he stated, defective design caused the facility's failure. From his analysis, the structural base, although complying with the plans and specifications, inadequately supported the repetitive loading which occurred on the area. His review also showed the lime-only treatment to be unsuitable for the ground involved, and that under the circumstances a need existed for stabilization of the base through the use of soil cement. Indeed, Dillon testified that application of an even greater quantity of lime than that utilized would not have provided a sufficient foundation. Hence, considering the entire record, the evidence clearly supports the trial court's conclusion that improper design, not poor workmanship or defective materials, resulted in the failure of the parking lot.
Finding the project's defective design caused the deterioration of the parking lot surface, the trial court cited LSA-R.S. 9:2771 and relieved Webster, Haddox, and Winford of responsibility. That section states:
No contractor shall be liable for destruction or deterioration of or defects in any work constructed, or under construction, by him if he constructed, or is constructing, the work according to plans or specifications furnished to him which he did not make or cause to be made and if the destruction, deterioration or defect was due to any fault or insufficiency of the plans or specifications. This provision shall apply regardless of whether the destruction, deterioration or defect occurs or becomes evident prior to or after delivery of the work to the owner or prior to or after acceptance of the work by the owner. The provisions of this section shall not be subject to waiver by the contractor.
Thus, the statute departs from the more general standard implicitly obligating the builder in every construction contract to perform his work in a good workmanlike manner, free from defects in materials or workmanship. Tex-La Properties v. South State Insurance, 514 So.2d 707 (La. *806 App. 2d Cir.1987). See also LSA-C.C. Arts. 2762, 2769.
Appellants contend the provision is inapplicable since the undertaking did not involve written plans and specifications. We disagree. It would defeat the intent of LSA-R.S. 9:2771 to construe it as being available only in instances where plans and specifications have been reduced to a written instrument. The statute provides a safe harbor to the contractor so long as plans and specifications are not provided by him. In such an instance, he is immune from liability upon building in compliance. City of Covington v. Heard, 428 So.2d 1132 (La.App. 1st Cir.1983). Thus, the trial court did not err in deeming the section applicable.
In short, the contractors clearly sustained their burden of persuasion, having shown that they complied with plans and specifications, as provided by Ark-La-Tex, and that no deficient workmanship or materials caused the failure of the parking lot.[1]
EXPERT WITNESSES
Dillon, presented by Haddox and Webster, remained in the courtroom throughout the trial. As stated above, he concluded that defective design, not substandard workmanship or materials, resulted in the rapid deterioration of the work done by the contractors. Appellants, though, challenge the lower court's acceptance of such testimony over that of their expert, who asserted improper construction or workmanship caused the parking lot's failure.
Of course, the effect and weight to be given expert testimony is within the broad discretion of the trial judge. Sawyer v. Niagara Machine & Tool Works, 535 So.2d 1057 (La.App. 2d Cir.1988), writ denied, 536 So.2d 1222 (La.1989); Friday's Plumbing and Heating Co. v. Byers, 415 So.2d 256 (La.App. 2d Cir.1982). The importance placed upon such testimony is largely dependent on the expert's qualifications and the facts that form the basis of his opinion. Middle Tennessee Counsel, Inc. v. Ford, 274 So.2d 173 (La.1973). And, where two expert opinions differ factually, the leeway accorded the trial court allows it to favor one over the other. Carpenter v. Hartford Fire Ins. Co., 537 So.2d 1283 (La.App. 2d Cir.1989); Sawyer, supra; McDonald v. Illinois Central Gulf Railroad Co., 546 So.2d 1287 (La.App. 1st Cir.1989), writ denied, 551 So.2d 1340 (La.1989).
In the present case, Dillon's testimony presented a reasonable explanation for the failure of the parking lot and emerged strongly supported by the evidence. Vast experience in the design and construction of parking lots and highways, combined with consideration and evaluation of the technical data available, substantially strengthened his conclusions. Thus, the decision to accept his opinion in preference to that of appellants' expert rested well within the prerogative of the trial court.
VALIDITY OF PRIVATE WORKS ACT LIEN
Another assignment of error concerns the recognition of Winford's lien filed on November 28, 1983, against the Blakey property. Appellants contend that the privilege had been appropriately cancelled after Winford failed to record a notice of lis pendens, as supposedly required by LSA-R.S. 9:4833(F).
Without addressing whether that cancellation properly occurred, the record clearly discloses an untimely filing of Winford's lien. The Private Works Act, LSA-R.S. 9:4801 et seq., protects those who work on the creation, construction, repair or improvement of private immovable property. It extends a claim or privilege to two specific categories of persons, viz., those who deal with the owner of the property, LSA-R.S. 9:4801, and those dealing with the contractors or subcontractors, LSA-R.S. 9:4802. Cirlot, Co. v. Lake Forest, Inc., 475 So.2d 799 (La.App. 4th Cir.1985), *807 writ denied, 477 So.2d 1128 (La.1985). The time period for asserting a privilege is determined by the category a claimant falls within and whether a notice of contract has been filed. LSA-R.S. 9:4822. A subcontractor, if a notice of contract has been properly filed, must file his claim within 30 days after the filing of the notice of termination of work. LSA-R.S. 9:4822(A). If no notice of contract is filed, however, subcontractors are accorded 60 days after either the substantial completion of work or filing of a notice of termination. LSA-R.S. 9:4822(C). Work is considered "substantially complete" (1) when the last work is performed, or last materials delivered to the site, or (2) when, on an earlier date, the owner accepts the improvement and possesses or occupies the immovable, even if minor or inconsequential matters remain to be finished, or minor defects or errors in the work are still to be remedied. Southmark v. Ellis Millwork, Inc., 535 So.2d 507 (La.App. 2d Cir.1988), writ denied, 539 So.2d 632 (La.1989).
The present record fails to indicate whether a notice of contract and/or notice of termination of work was filed. We are thus unable to determine which of the two prescriptive periods, 30 or 60 days, applied. However, even assuming the longer period, Winford did not accomplish timely registration.
The work on the parking lot concluded on September 17, 1983. Winford's job superintendent testified that on that date their firm finished applying the penetration seal, the final step of the project, even though Blakey expressed dissatisfaction in the results. Substantial completion having clearly occurred, the statutory period commenced to run on that date. Thus, the lien, filed untimely on November 28, 1983, should not have been recognized.
NEW TRIAL
Appellants also maintain that the trial court erred in denying the motion for new trial. It is contended newly discovered evidence necessitated granting that request.
According to LSA-C.C.P. Art. 1971, et seq., a new trial may be granted when (1) the judgment is clearly contrary to the law and evidence, (2) newly discovered evidence has been found, (3) improper jury behavior occurred, or (4) good grounds exist. Petitto v. McMichael, 552 So.2d 790 (La.App. 1st Cir.1989). If an application for new trial is predicated upon alleged newly discovered evidence, the moving party bears the burden of proving that: (1) the evidence was discovered after the trial, (2) the evidence could not have been discovered prior to trial through the exercise of due diligence, and (3) the newly discovered evidence would tend to change the result of the first trial. Barker v. Rust Engineering, Co., 428 So.2d 391 (La.1983); Orlando v. Polito, 228 La. 846, 84 So.2d 433 (La. 1955); Brousseau v. Tucker, 479 So.2d 446 (La.App. 1st Cir.1985), writ not considered, 481 So.2d 1329 (La.1986).
To the motion for new trial, appellants attached certain newspaper articles concerning involvement by the presidents of Winford and Haddox in a bid rigging scheme. The reports pertained to efforts by several northwest Louisiana contractors to obtain state highway contracts. Asserting lack of knowledge of such events prior to media disclosures in July 1989, the motion requested that the case be reopened to receive evidence of participation, if any, by the two individuals in the fraudulent scheme.
We are convinced, however, that no error occurred in reference to the motion. Even though known fraudulent activity might well bear upon an evaluation of credibility, it is unlikely that the outcome of the present case would have been different, considering the entire record. The testimony of Winford's and Haddox's presidents clearly did not stand alone. The court heard other Winford employees, in addition to the president of Webster, and a highly qualified civil engineer, Dillon. As witnesses, they all related substantially similar information concerning the circumstances and performance of the parking lot work. Even testimony by Blakey, in many respects, supported the trial court's disposition. Thus, the judgment being well *808 grounded upon more than the testimony of the two mentioned company officials, one of whom is apparently now deceased, denial of a new trial did not constitute error.
CONCLUSION
For the foregoing reasons, we reverse the recognition of the Winford lien against the Blakey property, but affirm the judgment of the trial court in all other respects. Costs of the appeal are assessed to appellants.
AFFIRMED IN PART; REVERSED IN PART.
NOTES
[1] Appellants' other previously mentioned assignment, that the contractors failed to establish that the risk of loss or defects had been contractually assumed by Ark-La-Tex, is of little consequence. Under the factual findings of the trial court, with the appellant corporation having furnished the plans and specifications, LSA-R.S. 9:2771 gives rise to the same result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/697979/ | 57 F.3d 1069NOTICE: 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.
Raymond JOHNSON, Petitioner-Appellant,v.UNITED STATES of America, Respondent-Appellee.
No. 95-1059.
United States Court of Appeals, Sixth Circuit.
June 14, 1995.
Before: WELLFORD, NELSON and RYAN, Circuit Judges.
ORDER
1
Raymond Johnson, a pro se federal prisoner, appeals a district court judgment denying his motion to vacate his sentence filed pursuant to 28 U.S.C. Sec. 2255. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).
2
Johnson was named in four counts of a fifteen count indictment for narcotics and telecommunications offenses. Specifically, count I charged petitioner with conspiracy to possess with intent to distribute and to distribute a controlled substance in violation of 21 U.S.C. Secs. 841(a)(1) and 846; counts II and III charged petitioner with possession with intent to distribute a controlled substance in violation of Sec. 841(a)(1); and count IV charged petitioner with the unlawful use of a communication facility in violation of Sec. 843(b). A panel of this court affirmed Johnson's conviction on appeal. United States v. Johnson, Case No. 91-3863 (6th Cir.1992).
3
In his motion to vacate sentence, Johnson argued that: 1) the district court sentenced him based upon erroneous information contained in the presentence investigation (PSI) report; and 2) counsel rendered ineffective assistance. Upon review, the district court denied the motion as without merit.
4
Johnson filed a timely appeal, reasserting his same claims. Johnson also moves the court to proceed in forma pauperis on appeal.
5
Upon review, we conclude that the district court properly denied the motion to vacate for the reasons stated in the district court's carefully reasoned opinion of January 5, 1995, a copy of which is attached for ready reference.
6
Accordingly, we hereby grant Johnson pauper status for the limited purpose of this review, and affirm the district court's judgment. Rule 9(b)(3), Rules of the Sixth Circuit. | 01-03-2023 | 04-17-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/1599923/ | 571 So.2d 1119 (1990)
Ex parte Billie E. GRUBBS and Lena T. Grubbs.
(Re Billie E. GRUBBS and Lena T. Grubbs v. JENKINS BRICK COMPANY.
Billie E. GRUBBS and Lena T. Grubbs v. Jack K. MOORE, d/b/a South Central Door Company).
89-502.
Supreme Court of Alabama.
September 21, 1990.
Alicia J. Putt of Smyer, White & Putt, Birmingham, for petitioners.
Stephanie W. Werdehoff of Stephens, Millirons, Harrison & Williams, Huntsville, for respondents.
HOUSTON, Justice.
Wells Building Company, Inc. ("Wells"), owned a residential lot in a subdivision in Huntsville, Alabama. Wells built a house on the lot and later sold it to Billie E. Grubbs and his wife, Lena T. Grubbs. Prior to the sale, Jenkins Brick Company ("Jenkins") and Jack K. Moore, d/b/a South Central Door Company, furnished materials to Wells that were used in the construction of the house. Wells failed to pay for those materials. The Grubbses had no contract, express or implied, with either Jenkins or Moore to pay for the materials that were sold to Wells. Jenkins and Moore timely filed statements of lien against the Grubbses' property and, thereafter, sued, along with others, Wells and the Grubbses, seeking money judgments against Wells and seeking to have materialman's liens perfected and enforced against the Grubbses' property. Wells filed a petition for relief in the bankruptcy court, and further action against Wells was stayed. After an ore tenus hearing, the trial court found that Jenkins and Moore were entitled to money judgments against Wells; however, *1120 because of the automatic stay in force in the bankruptcy proceeding, those judgments could not be entered. The trial court, instead, entered a money judgment for Jenkins against the Grubbses and a judgment purporting to establish Jenkins's lien. The trial court also entered a judgment for Moore, purporting to establish his lien, but it did not enter a money judgment for Moore against the Grubbses. The trial court ordered the sale of the Grubbses' property to satisfy the amounts owed by Wells to Jenkins and Moore. The Grubbses appealed these judgments to the Court of Civil Appeals, which affirmed the judgment for Jenkins, but reversed the judgment for Moore on the ground that the trial court had not entered a money judgment for Moore against the Grubbses. See Grubbs v. Jenkins Brick Co., 571 So.2d 1116 (Ala.Civ.App.1989). The Grubbses then petitioned for a writ of certiorari, pursuant to Rule 39, A.R.App.P. We reverse and remand.
The Grubbses contend that the Court of Civil Appeals erred in holding that they were subject to personal liability for the debt of Wells. The Grubbses argue that Ala.Code 1975, § 35-11-224, required that a money judgment be entered against Wellsthe party liable for the debtas a prerequisite to perfecting and enforcing the liens and that because that was not done the trial court's judgment for Jenkins should have been reversed. We agree.
Materialman's liens, being statutory creations, can be perfected and enforced only by complying with the requirements found in Ala.Code 1975, § 35-11-210 et seq. The liens are inchoate and will be lost if the lienors fail to perfect them according to the requirements of the statute. Bailey Mortgage Co. v. Gobble-Fite Lumber Co., 565 So.2d 138 (Ala.1990).
Section 35-11-224, supra, reads as follows:
"Any defendant, by appropriate plea, may put in issue the fact of indebtedness or the existence of the lien, or both, and may interpose any other defense applicable to the action; and if the court by its finding, or the jury by their verdict, as the case may be, ascertain that the plaintiff has a lien as claimed, judgment shall be entered for the amount secured thereby, interest and costs, against the party liable for the same, and establishing the lien, and condemning the property to sale for the satisfaction thereof; but if the finding or verdict is for the plaintiff only on the issue of indebtedness, a judgment shall be entered in his favor for the amount thereof as in other cases."
(Emphasis added.) This section requires that liability for the debt be established and that a money judgment be entered against the debtor as a prerequisite to perfecting and enforcing the lien. See May & Thomas Hardware Co. v. McConnell, 102 Ala. 577, 14 So. 768 (1893); see, also, 53 Am. Jur.2d, Mechanic's Liens § 342 (1970). Because the Grubbses had no contract, express or implied, with either Jenkins or Moore to pay for the materials that were sold to Wells, they were not personally liable for the debt. By their liens, Jenkins and Moore simply had a right to charge the Grubbses' property with the payment of Wells's debt. Sorsby v. Woodlawn Lumber Co., 202 Ala. 566, 81 So. 68 (1919). Accordingly, the trial court erred in entering a money judgment for Jenkins against the Grubbses. Copeland v. Dixie Lumber Co., 4 Ala.App. 230, 57 So. 124 (1911); McGeever v. Harris & Sons, 148 Ala. 503, 41 So. 930 (1906); May & Thomas Hardware Co. v. McConnell, supra.
We are fully aware that the trial court was prohibited from entering money judgments against Wells because of the automatic stay in force in the pending bankruptcy proceeding. We note, however, that apparently no attempt was made by Jenkins and Moore to have the stay lifted. In any event, the Legislature has seen fit to require the entry of a money judgment against the debtor as a prerequisite to the perfection and enforcement of a materialman's lien and, as previously noted, this Court must look to see if the requirements of the statute have been met. If a change in the statute is needed to protect the interests of a materialman when a money judgment *1121 cannot be entered against the debtor, that change must be made by the Legislature; it cannot be made by this Court. Ala. Const. 1901, Art. III, § 43 ("Separation of powers").
We note that our decision in this regard appears to be inconsistent with Copeland Construction Co. v. All-Phase Electrical Wholesalers, Inc., 378 So.2d 230 (Ala.Civ. App.1979), Starek v. TKW, Inc., 410 So.2d 35 (Ala.1982), and McGeever v. Harris & Sons, supra.
In Copeland Construction Co., the Court of Civil Appeals correctly acknowledged that § 35-11-224 requires the entry of a money judgment against the debtor. However, the court inexplicably held that the requirements of § 35-11-224 had not been met because a money judgment had not been entered against the owner of the property, even though the owner apparently had no contract, express or implied, with the materialman to pay for the materials that were sold by the materialman to a subcontractor that had participated in the owner's construction project. As we understand the facts of that case, the subcontractor was liable for the debt, and a money judgment had been entered against it in favor of the materialman in a separate suit on an account. Copeland Construction Co. appears to have been wrongly decided.
The facts in Starek are very similar to those in the present case. The Stareks had purchased a house from Blackmon Construction & Realty, Inc. ("Blackmon"). Unknown to the Stareks, Blackmon had failed to pay TKW, Inc., a building supplier that had provided materials to it for the construction of the house. Blackmon went bankrupt. TKW filed suit to perfect and enforce its lien on the Stareks' property. One of the issues presented to this Court was whether Blackmon had to be joined as a party to the suit under Rule 19, A.R. Civ.P. This Court, citing Ala.Code 1975, § 35-11-223(a), held that Blackmon was not a necessary party to the suit. Section 35-11-223(a) provides:
"In such actions [to perfect and enforce a materialman's lien], all persons interested in the matter in controversy, or in the property charged with the lien, may be made parties; but such as are not made parties shall not be bound by the judgment or proceedings therein."
Although this section does state in general terms that "all parties interested in the matter in controversy ... may be made parties," § 35-11-224 specifically requires that a money judgment be entered against the debtor. Therefore, Starek was correct to the extent of its holding that the debtor does not always have to be joined as a party to the suit in order for a materialman to perfect and enforce his lien. A prime example of when a debtor does not have to be joined is found in the facts of Copeland Construction Co., supra. As previously noted, the materialman in Copeland Construction Co. had secured a money judgment against the debtor in a separate action prior to filing suit to perfect and enforce the lien. Logic dictates that the Legislature never contemplated that the entry of a second money judgment against the debtor under those circumstances would be necessary. However, in Starek, it does not appear that a money judgment had been entered against the debtor, Blackmon, prior to suit being filed to perfect and enforce the lien.
In McGeever, this Court reversed the money judgment that was entered in favor of the materialman against the owner of the property, on the ground that the owner had no contract, express or implied, with the materialman to pay the debt. Nevertheless, the judgment enforcing the lien was affirmed, even though it does not appear that a money judgment had been entered against the owner's husband, who had incurred the debt.
After carefully reviewing Copeland Construction Co., Starek, and McGeever, we overrule the holdings in those cases to the extent that they are inconsistent with our holding in the present case.
For the foregoing reasons, the judgment of the Court of Civil Appeals is reversed to the extent that it upheld the trial court's judgment for Jenkins and the case is remanded *1122 for the entry of a judgment consistent with this opinion.
REVERSED AND REMANDED.
HORNSBY, C.J., and MADDOX, JONES and KENNEDY, JJ., concur.
SHORES, ADAMS and STEAGALL, JJ., concur in the result. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599927/ | 571 So.2d 409 (1990)
Elie Vincent MERRITT, Jr.
v.
STATE.
CR 89-982.
Court of Criminal Appeals of Alabama.
November 16, 1990.
T. Jefferson Deen III of Clark, Deen & Copeland, Mobile, for appellant.
Don Siegelman, Atty. Gen., and Norbert H. Williams, Asst. Atty. Gen., for appellee.
JAMES H. FAULKNER, Retired Justice.
Elie Vincent Merritt, Jr., was indicted for robbery in the first degree in violation of § 13A-8-41, Code of Alabama 1975, for the armed robbery of the Dauphin Island Parkway branch of the First Alabama Bank of Mobile. The jury found Merritt guilty as charged in the indictment, and he was sentenced to 20 years in the penitentiary.
After making a thorough recitation of the facts in this case and the rulings adverse to Merritt, appellate defense counsel has filed with this Court a brief alleging that he could find no error harmful to the substantial rights of Merritt. In particular, defense counsel contends that he could not advance any argument in Merritt's behalf in good faith and that he believes an appeal in this case is wholly frivolous.
The brief submitted by able counsel for Merritt is in compliance with the standards enunciated in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having thoroughly examined the brief filed on behalf of Merritt and the record of Merritt's trial, this Court finds it clear that no errors harmful to Merritt's case can be found. Chapman v. State, 465 So.2d 1214, 1215 (Ala.Cr.App.1985).
*410 As stated by appellate counsel in his brief, the five potential issues in this case contain no reversible error. For example, any error in allowing eyewitness Tonya Murph to testify on direct examination to her extrajudicial identification of Merritt as the perpetrator was cured by challenging the witness's identification of Merritt on cross-examination. Carlisle v. State, 371 So.2d 975, 978 (Ala.Cr.App.1979). Likewise, the police officer's response indicating that Merritt's photograph was placed in a photographic spread due to an anonymous phone call was not offered for the truth of the matter asserted but merely to show why the police placed Merritt's photograph in the photographic spread. Claims of ineffective assistance of Merritt's trial counsel, moreover, will not be considered for the first time on appeal. Jackson v. State, 534 So.2d 689, 692 (Ala.Cr. App.1988). Furthermore, the prosecutor's identification during closing argument of two persons in the courtroom who had not testified at trial was not reversible error because the reference was made "in the heat of debate" in response to defense counsel's closing argument that the State had failed to introduce the testimony of these persons into evidence. The trial court therefore exercised its discretion in allowing that argument. Touart v. State, 562 So.2d 625 (Ala.Cr.App.1989). Finally, the prosecutor's statement during closing argument that he could not force an anonymous telephone caller to testify did not constitute reversible error, because the statement, which did not prejudice Merritt due to the existence of independent testimony of two eyewitnesses who identified Merritt as the perpetrator, was a legitimate inference from evidence submitted to the jury. See Averette v. State, 473 So.2d 631 (Ala.Cr.App.1985).
We therefore conclude that there are no errors contained in this record which affect the substantial rights of Merritt. The motion of appellate counsel for Merritt to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), is hereby granted. This cause is due to be, and it is hereby, affirmed.
The foregoing opinion was prepared by the Honorable JAMES H. FAULKNER, a Retired Supreme Court Justice, and his opinion is hereby adopted as that of the court.
The judgment of the circuit court is affirmed.
AFFIRMED.
All Judges concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599928/ | 1 So.3d 1220 (2009)
Dean Michael COX, Appellant,
v.
STATE of Florida, Appellee.
No. 2D06-4860.
District Court of Appeal of Florida, Second District.
February 6, 2009.
*1221 Laura Griffin, Ponte Vedra Beach, for Appellant.
Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
PER CURIAM.
Dean Cox challenges his aggravated child abuse conviction for which he was sentenced to thirty years' imprisonment.[1] The charged events occurred on July 16, 2004, and involved Cox's eight-year-old son, B.C., and six-year-old son, C.C. Because Cox's conduct does not constitute the crime of aggravated child abuse, his conviction is fundamentally erroneous and must be reversed.
On the evening of July 16, 2004, during a two-week visitation with Cox, B.C. and C.C. made a phone call to their mother, Bonnie Patterson. Mrs. Patterson, who had a domestic violence injunction against Cox, refused to speak with him. Shortly thereafter Cox launched into a frightening tirade against Mrs. Patterson and her new husband, Patrick. Mrs. Patterson received several more calls and voice messages from Cox and her sons in which she could hear Cox's angry ranting and the boys' screaming.
At some point during this tirade, Cox rubbed the blunt edge of a pocket knife on B.C.'s leg, then stabbed a mattress several times stating, "[T]his is what I'll do to Patrick and your mom." B.C. testified that this frightened him, though he did not scream or cry. His brother, C.C., suffered from mental and physical health issues and was screeching loudly during the incident, as he often did when agitated. Neither of the boys sustained any physical injury, nor did the State present evidence of resulting mental injury.
*1222 Cox was charged with aggravated child abuse in violation of section 827.03(2)(b), Florida Statutes (2004), which provides that aggravated child abuse occurs when a person "[w]illfully tortures, maliciously punishes, or willfully and unlawfully cages a child." Section 827.03(4) defines maliciously as
wrongfully, intentionally, and without legal justification or excuse. Maliciousness may be established by circumstances from which one could conclude that a reasonable parent would not have engaged in the damaging acts toward the child for any valid reason and that the primary purpose of the acts was to cause the victim unjustified pain or injury.
The information charged Cox under both the malicious punishment and willful torture theories, but at trial the State focused on a theory of torture. The defense contended that there was no knife and that Mrs. Patterson fabricated the story. In its motion for judgment of acquittal the defense presented the following argument as to the aggravated child abuse charge:
I guess they testified that there was a knife so we can't dispute that now, punish or torture, kid was crying so we're not disputing that.
The issue is that [Cox] was going to kill their step-father or their mother in demonstrating how he was going to kill them. That's never been alleged to this point in the trial.
... [T]here was nothing said or done by Mr. Cox as to this is how or what I'm going to do to your parents.
The motion was denied and Cox was convicted of aggravated child abuse. Cox argues on appeal that the State presented no evidence of malicious punishment or willful torture. For the reasons explained below, we agree.
We first address the "malicious punishment" theory. The State presented no evidence that Cox's actions were imposed as a form of punishment against B.C. or C.C. Rather, it appears the children were drawn into Cox's angry outburst aimed at Bonnie and Patrick Patterson. The evidence shows Cox's actions were not a form of punishment and thus malicious punishment cannot serve as a basis for conviction. See § 827.03.
We now consider whether the State presented evidence to support a conviction based on a "willful torture" theory. Though the scant argument presented on the motion for judgment of acquittal is not sufficient to properly preserve this issue for appeal, lack of preservation does not prevent us from reviewing fundamental error. Ellis v. State, 714 So.2d 1160, 1161 (Fla. 2d DCA 1998). "A conviction is fundamentally erroneous when the facts affirmatively proven by the State simply do not constitute the charged offense as a matter of law." Griffin v. State, 705 So.2d 572, 574 (Fla. 4th DCA 1998); see also F.B. v. State, 852 So.2d 226 (Fla.2003).
Section 827.03(2) does not define torture, so we look to case law and the greater statutory scheme for guidance as to what constitutes torture for purposes of aggravated child abuse. Florida's child abuse statutes generally seek to "define the boundary between permissible parental discipline and prohibited child abuse." State v. McDonald, 785 So.2d 640, 642 (Fla. 2d DCA 2001). Aggravated child abuse is largely determined on a case-by-case basis rather than with bright-line rules as to what conduct does and does not constitute aggravated child abuse. Herbert v. State, 526 So.2d 709, 712 (Fla. 4th DCA 1988). This flexibility is critical to allow for consideration of such factors as the age of the victim, the frequency of prohibited conduct, and other circumstances *1223 relevant to a particular case. It is clear, however, that "the first-degree felony of aggravated child abuse [is] preserved for truly aggravated circumstances." McDonald, 785 So.2d at 642; see also Herbert, 526 So.2d at 712 n. 3 ("[P]ortions of section 827.03 prohibit the `willful torturing' and `willful and unlawful caging' of children. This would seem to indicate that the legislature intended to proscribe conduct far more brutal than the spanking of a child by a parent.").
Previous versions of section 827.01, Florida Statutes, defined torture for purposes of aggravated child abuse as "every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused." See Nicholson v. State, 600 So.2d 1101 (Fla.1992) (discussing what acts constitute torture under previous version of sections 827.01 and 827.03). However, this definition was deleted when chapter 827 was extensively amended in 1996.
Cox suggests that we look to the more stringent definition of torture provided in Black's Law Dictionary as follows: "To inflict intense pain to body or mind for purposes of punishment, or to extract a confession or information, or for sadistic pleasure."[2]Black's Law Dictionary 1490 (6th ed. 1990). While we agree that such conduct would certainly constitute "willful torture" pursuant to section 827.03, we decline to apply this common definition of torture as the baseline for conduct constituting torture of a child pursuant to section 827.03(2)(b). Instead, we look to case law on aggravated child abuse in general for guidance as to what conduct falls within the ambit of aggravated child abuse by willful torture.
In Nicholson v. State, 579 So.2d 816 (Fla. 1st DCA 1991), approved, 600 So.2d 1101 (Fla.1992), a mother and her acquaintance, Mary Nicholson, imposed on her four-year-old daughter a regimen of forced exercise, severe beatings, and food deprivation in an effort to free the daughter of what they believed to be evil spirits. This was carried out over four months until the child died of starvation. Id. The supreme court concluded these acts and omissions were sufficient to constitute aggravated child abuse both as malicious punishment and willful torture as previously defined in section 827.01. Id.
In Snyder v. State, 564 So.2d 193 (Fla. 5th DCA 1990), evidence was sufficient to survive a motion for judgment of acquittal for aggravated child abuse where a fourteen-year-old boy was subjected on numerous occasions to videotaped beatings with a paddle and baseball bat. The child suffered severe bruising as a result of the repeated abuse and "was an object to satisfy the sadistic impulses of the appellants." Id. at 196.
While these cases demonstrate the type of conduct that constitutes aggravated child abuse by willful torture, there is a dearth of cases describing conduct that does not rise to the level of this crime. However, this court has held that aggravated child abuse for malicious punishment is reserved for "cases involving parental discipline that results in great bodily harm or permanent disabilities and disfigurements or that demonstrates actual malice on the part of the parent and not merely a momentary anger or frustration." McDonald, 785 So.2d at 646. In Moakley v. State, a father was convicted of aggravated *1224 child abuse after a single incident of spanking his daughter on the buttocks with a leather belt leaving bruises. 547 So.2d 1246 (Fla. 5th DCA 1989). The conviction was reversed for lack of malice and "a lack of evidence ... to establish that the actions of appellant were cruel or merciless or so excessive as to warrant a criminal conviction." Id. at 1247.
In this case, Cox's tirade about his ex-wife and her husband undoubtedly inflicted a substantial amount of fear and anxiety in the young boys. However, no physical injury was inflicted on the children, nor is there proof of any mental injury resulting from the episode. While the conduct to which the children were exposed is unacceptable from any rational parenting perspective, this conduct simply does not involve the level of brutality or extreme pain and suffering necessary to constitute aggravated child abuse by willful torture.
We conclude that the facts proven by the State simply do not constitute the charged offense of aggravated child abuse. Therefore, the conviction for aggravated child abuse is fundamentally erroneous, and we must reverse. Reversed.
NORTHCUTT, C.J., and STRINGER and WALLACE, JJ., Concur.
NOTES
[1] Cox was also convicted of stalking and violating an injunction but does not challenge those convictions in this appeal.
[2] This definition was considered in State v. Harris, 537 So.2d 1128, 1130 (Fla. 2d DCA 1989), which held that acts of omission and neglect were not included in the meaning of "willful torture" under section 827.03. Nicholson v. State, 600 So.2d 1101 (Fla.1992), disapproved Harris in part, holding that willful acts of omission and neglect can constitute torture under section 827.03. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599796/ | 571 So. 2d 375 (1990)
Ralph JOHNSON
v.
STATE.
8 Div. 307.
Court of Criminal Appeals of Alabama.
September 21, 1990.
Rehearing Denied November 30, 1990.
Certiorari Denied March 1, 1991.
*376 John F. Proctor, Scottsboro, and Joseph V. Barker, Stevenson, for appellant.
Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.
Alabama Supreme Court 1900534.
McMILLAN, Judge.
The appellant was indicted for murder, in violation of § 13A-6-2, Code of Alabama (1975). Thereafter, he was convicted of manslaughter, as a lesser-included offense, and sentenced to 20 years in the state penitentiary. He was also ordered to pay $9,489.30 in restitution and a crime victim compensation assessment of $25.
I
The appellant argues that the jury's verdict of manslaughter was a compromised verdict, which was not supported by the evidence, and that it should, therefore, be reversed.
On the day of the offense, the appellant's wife was informed by the appellant's and her daughter that she had been raped by the victim. The appellant's wife then took a rifle and a pistol, which belonged to the appellant, to a neighbor's house. The appellant's wife returned to the neighbor's house later that day and retrieved the pistol. She and her daughter subsequently reported the alleged rape to the police. When the appellant came home that evening, his wife told him about the rape. The appellant's wife and his daughter testified that he became extremely upset. Later that evening, the appellant drove to the trailer of Billie Rachel Garner, a friend of the appellant. The victim had been riding with his brother-in-law in his brother-in-law's vehicle and had told his brother-in-law that he had been accused of raping the appellant's daughter. He further told his brother-in-law that he was planning to talk to the appellant and try to work things out. While driving around, they observed the appellant's vehicle parked at Billie Rachel Garner's trailer, so they turned around and returned to the trailer. The victim informed his brother-in-law that he was going to talk to the appellant. He knocked on the trailer door, entered, and, with his hand still on the doorknob, told the appellant that they needed to talk, but that he wanted to talk outside. The appellant stood up and fired six to seven shots at the victim. The victim began running out of the trailer, and the appellant pursued him. Garner testified that she asked the appellant if he had gone crazy and that she attempted to grab him. The appellant pursued the victim outside, telling him to run, and stating *377 that "I am going to kill you, you son of a bitch." The victim, while attempting to hide behind a car, told his brother-in-law that the appellant had shot him. Garner's brother, who was outside, began to wrestle with the appellant over his gun. The victim's brother-in-law started his vehicle and helped the victim into the car. He took the victim to the hospital. The appellant's wife testified that, when the appellant returned home, he told her that he had talked to the victim and that he had shot at him, but he stated that he did not hit the victim. He further stated that the victim had run like a rabbit.
The appellant testified at trial that, as he watched the victim walk outside of the trailer, he had observed the victim's hand go out of sight and believed that he was grabbing for a weapon. He thus presented the defenses of self-defense and insanity.
According to § 13A-6-3, Code of Alabama 1975:
"(a) A person commits the crime of manslaughter if:
"(1) He recklessly causes the death of another person, or
"(2) He causes the death of another person under circumstances that would constitute murder under § 13A-6-2; except, that he causes the death due to a sudden heat of passion caused by provocation recognized by law and before a reasonable time for the passion to cool and for reason to reassert itself."
There is no dispute that the appellant caused the victim's death. Moreover, there was evidence presented from which a jury could conclude, by fair inference, that the appellant was guilty of manslaughter beyond a reasonable doubt. Wiggins v. State, 354 So. 2d 340 (Ala.Cr.App.1978). The jury could have reasonably concluded that the appellant recklessly caused the victim's death or was acting out of legal provocation, because he believed the victim to be reaching for a weapon.[1]
There was ample evidence that the appellant was familiar with the weapon that he used. It was his pistol, and the appellant presented evidence that he had been a decorated Vietnam soldier. Thus, the appellant must have perceived the risk involved in his conduct. See Dalton v. State, 488 So. 2d 13, 15 (Ala.Cr.App.1986). The appellant clearly acted recklessly by opening fire at the victim.
Moreover, there was sufficient evidence to refute the appellant's defense of self-defense and establish a prima facie case of manslaughter by legal provocation. Although the appellant claimed that he acted because he believed that the victim was reaching for a weapon, there was evidence that the victim was unarmed. "`[Section] 13A-6-3(a)(2) is designed to cover those situations where the jury does not believe a defendant is guilty of murder but also does not believe the killing was totally justified by self-defense.' Shultz v. State, 480 So. 2d 73, 76 (Ala.Cr.App.1985). Furthermore, `the evidence regarding self-defense was conflicting, therefore it is a matter left to the jury to decide. Ex parte Johnson, 433 So. 2d 479 (Ala.1983), Davis v. State, 450 So. 2d 473 (Ala.Cr.App.1984).'" Hill v. State, 516 So. 2d 876, 882 (Ala.Cr.App.1987). See also Shiflett v. State, 507 So. 2d 1056, 1059 (Ala.Cr.App.1987).
Thus, this court found that the jury's verdict of first degree manslaughter was well supported by the evidence in Hurst v. State, 397 So. 2d 203, 206 (Ala.Cr.App.), cert. denied, 397 So. 2d 208 (Ala.1981). In that case, the defendant shot the victim when he and his accomplice first entered the victim's apartment. There was evidence that the defendant's accomplice had been involved in an argument with the victim earlier that day and was returning to "straighten this out." The appellant had argued that the shooting was accidental, but the court held that the evidence supported the conviction of first degree manslaughter.
*378 "[I]f the evidence presented at trial shows that death was caused by a pistol intentionally fired at the person killed, unless self-defense is proved, the offense is either murder or manslaughter in the first degree. Lanier v. State, 43 Ala.App. 38, 179 So. 2d 167 (1965)." Weaver v. State, 402 So. 2d 1099, 1102-03 (Ala.Cr.App.1981). See also Shiflett v. State, 507 So. 2d 1056, 1058-59 (Ala.Cr.App.1987) (wherein this court stated that because "we believe the evidence was sufficient to support a murder conviction, it necessarily follows that there was sufficient evidence to support the lesser-included offense of manslaughter under the theory that the appellant acted recklessly or with legal provocation"). In the present case there was sufficient evidence from which the jury could, by fair inference, conclude that the appellant was guilty of manslaughter beyond a reasonable doubt. Wiggins v. State, supra.
II
The appellant argues that the trial court erred in refusing to charge the jury on his requested charge No. 16, that he had no duty to retreat. The record indicates that the following occurred prior to closing arguments in the judge's chambers:
"THE COURT: The record should show that the court is conducting a pre-charge conference with counsel and the attorneys have been furnished a copy of the court's purported oral charge. The court has informed counsel that defendant's requested jury charges No. 22, 23, 24, 25, 31, 33, 36, 38, and 42 are to be given by the court. And the court has further discussed with counsel whether or not the elements of retreat as it is involved in the doctrine of self-defense should be given to the jury, and I believe that it's the agreement of counselState and the defendantthat the court will not charge on retreat as an obligation of the defendant in this case.
"The remainder of the defendant's written requested charges are denied and refused.
"[DEFENSE COUNSEL]: Defendant would object to the court's refusing to give his requested charges No. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 26, 27, 28, 29, 30, 32, 34, 35, 37, 39, 40, 41, 43, 44, 45, 46, 48, 49, 50, 51, 16, and 15."
Following the trial court's oral instructions to the jury, the trial court asked if there were any exceptions from the defendant and defense counsel responded, "No, sir."
Clearly the trial court was under the impression that both parties had agreed that the court would not charge the jury on the appellant's duty to retreat. Moreover, the appellant failed to adequately bring to the trial court's attention the fact that he was objecting on the failure to charge on duty to retreat. Although he cited the trial court's failure to give jury charge No. 16 in his list of objections to refused charges, this is not sufficient to preserve error pursuant to Rule 14, A.R.Crim.P. Temp. See Corbin v. State, 551 So. 2d 429 (Ala.Cr.App. 1989); Bates v. State, 549 So. 2d 601, 610-11 (Ala.Cr.App.1989); Daugherty v. State, 527 So. 2d 1364 (Ala.Cr.App.1988).
III
The appellant argues that the trial court erred in refusing to allow into evidence a conviction of the deceased for murder, which refusal was especially prejudicial because the appellant was pleading self-defense. The record indicates that the appellant attempted to admit evidence at trial that the victim had been convicted of murder in 1976, approximately 12 years prior to the present crime. There was no indication of any connection between the appellant and the circumstances of this offense, and the person or persons involved in the prior offense and the circumstances of that offense.
In Weaver v. State, 402 So. 2d 1099 (Ala. Cr.App.1981), this court held that a deceased's habit of "`cutting people with a knife'" was inadmissible. This court stated:
"In Shuler v. State, 56 Ala.App. 599, 324 So. 2d 313, cert. denied, 295 Ala. 418, 324 So. 2d 319 (1975), this court observed that inquiries concerning violent hostile acts *379 by a victim toward someone other, than the appellant were not admissible.
"In Gamble, McElroy's Alabama Evidence, § 63.01(3), (3d Ed.1977) we find the following:
"`In some cases where the accused is relying on self-defense he will want to show that the victim had previously committed specific acts of violence toward other persons and that the accused knew of such acts. The purpose of such evidence will be to show the accused's reasonable apprehension of peril. The general rule is that such evidence is admissible if the person toward whom the violence was directed had a very close connection with the accused such that there would be reasonable apprehension of peril on the part of the accused. It is quite clear that such violence towards other persons is not admissible if it is remote in time or lacks any connection in circumstances with the accused.' [Emphasis added]
"In the present case, the specific act shown by the appellant at a hearing out of the presence of the jury, occurred from one to ten years before the shooting in question, and only one incident involved a person who the appellant stated was related to him `a little bit.' Therefore, under these circumstances, we believe that the court was correct in not permitting the appellant to show specific incidents of the victim's dangerous and violent nature. The evidence presented was remote in time and lacked any connection in circumstance with the appellant."
Id. at 1101. See also Langley v. State, 373 So. 2d 1267, 1271-72 (Ala.Cr.App.1979).
The trial court properly refused to allow the appellant to admit evidence of the deceased's prior conviction, as it was remote in time and lacked any connection in circumstance with the appellant.
IV
The appellant alleges that the trial court erred in charging the jury on the element of self-defense pertaining to what the appellant reasonably believed at the time he acted, because the trial court charged that the test should be what a reasonable man believed, rather than what a reasonable man, suffering from the mental disease or defect of the defendant, would have believed at the time he acted.
However, this matter was not preserved for review. Although the appellant objected to a number of requested charges in his list cited above, see Issue II, he failed to state any grounds, in listing the refused instructions. He further stated that he had no exceptions following the trial court's oral charge. Therefore, he has failed to preserve this matter for appeal. See Rule 14, Alabama Rules of Criminal Procedure.
"`No party may assign as error the court's ... failing to give a written instruction... unless he objects thereto before the jury retires to consider its verdict, stating the matter to which he objects and the grounds of his objection.' Rule 14, Temp.A.R.Cr.P. (emphasis added). Here, defense counsel made the following objection, `We'd except, of course, to you not giving all of our written charges as being correct statements of the law, the ones you did not give.' Counsel `failed to set forth the specific grounds for his objection.' Ex parte Johnson, 433 So. 2d 479, 480 (Ala.1983). See Matkins v. State, 497 So. 2d 201, 202 (Ala.1986). The reference to `all of' his written charges as `correct statements of the law' is simply not a specific ground of objection, especially in view of the fact that defense counsel submitted 33 charges, 18 of which were refused. While defense counsel is not required `to deliver a discourse before the trial judge on the applicable law of the case,' Gardner v. Dorsey, 331 So. 2d 634, 637 (Ala. 1976) (construing Rule 51, A.R.Civ.P.), he is required to direct the court's attention to the reason why a particular requested charge, which is at a minimum a `correct statement of the law,' applies in a particular case. `[E]rrors by the trial court such as ... refusals of written charges ... should be brought to the attention of the trial court so that it *380 might cure such errors at that level.' Allen v. State, 414 So. 2d 989, 992 (Ala. Cr.App.1981), affirmed, Ex parte Allen, 414 So. 2d 993 (Ala.1982)."
Connolly v. State, 539 So. 2d 436 (Ala.Cr. App.1988).
Clearly by merely stating the number of the refused requested charges to which the appellant objected, the trial court was not put on notice as to the nature of the appellant's claimed error.
V
The appellant argues that the trial court erred in refusing to allow the appellant's daughter to testify about being raped by the victim. The record indicates that the trial court allowed several witnesses, including Billie Rachel Garner, the victim's brother-in-law, the appellant's wife, and the appellant to testify to the fact that the appellant's daughter claimed to have been raped by the victim. There was also testimony that the appellant was informed of this fact prior to the shooting. An employee of the sheriff's department of Franklin County, Tennessee, testified that the appellant's wife and the appellant's daughter came to his office and reported the rape. An employee of the Tennessee Department of Human Resources testified that she took the appellant's daughter's statement concerning the alleged rape. The appellant's daughter testified that, on the night of the offense, the appellant questioned her about the alleged rape. She stated that she just cried and that the appellant asked his wife about the rape. She testified that the appellant then appeared to "go crazy." He put his camouflage clothing on, and left the house. She testified that she, with her mother, had previously reported the rape. The prosecutor then objected and the trial court instructed the jury as follows:
"I sustain. Ladies and gentlemen, let me explain to you that this evidence is being admitted for a limited purpose. The issue before you and upon which this testimony is being admitted is the defendant's state of mind by virtue of what he had been informed. The evidence of an alleged rape is being admitted for your consideration, not with respect to whether that occurred or didn't occur. There is going to be no evidence before you whether it did or didn't. The issue being admitted in the case is for the defendant's state of mind. That is, whether he had or had not been told that it had occurred. So that's the reason that this is being admitted into evidence, and I will exclude the witness's remark in response to the question about whether it had occurred."
The appellant's daughter then testified that when her father returned, he was dressed in camouflage fatigues and his face was painted black and green. She stated that he told his wife and both of his daughters to leave the house. She further testified that the appellant then went up into the mountains, and she stated that he had a gun.
"In a prosecution for murder it is permissible for the State to prove that the defendant entertained feelings of hostility toward the deceased, and for this purpose, the fact, but not the details or particulars, of recent former difficulties may be shown. Jones v. State, 17 Ala. App. 394, 85 So. 830 (1920).
"In Judge McElroy's `Law of Evidence in Alabama, 2d Ed. Vol. 1, page 107' it is stated:
"`In a series of opinions by the Court of Appeals, written by Judge Harwood, and apparently approved by the Supreme Court's denial of certiorari, the rule now seems to be established that the extent to which the facts (whether called details or some other name) of a former difficulty may be proved is committed in measurable degree to the discretion of the trial court.' (Citing cases)."
Davis v. State, 331 So. 2d 813, 817 (Ala.Cr. App.1976).
We find no abuse of discretion by the trial court in determining that the daughter could not testify as to the rape, except as to its effect on the appellant's state of mind.
*381 VI
The appellant argues that the trial court erred in refusing to affirmatively charge the jury that he should have been found not guilty by reason of mental disease or defect, pursuant to his requested jury charge No. 5. He further argues that the trial court erred in refusing to give his requested charge No. 51, which stated that, in the event of a verdict of not guilty by reason of mental disease or defect, there would be another hearing to determine whether or not the defendant should be committed to a mental institution. However, these issues are not preserved for review, pursuant to Rule 14, A.R.Crim.P. Temp. See Issues II and IV.
VII
The appellant argues that the trial court erred in allowing a psychologist, testifying for the State, to give a medical opinion as to the appellant's sanity at the time of the shooting. The appellant argues that the witness, was not qualified to give a medical opinion, because he was not a medical doctor. Appellant cites Bailey v. State, 421 So. 2d 1364 (Ala.Cr.App.1982), for the general rule that only persons licensed to practice medicine as a profession can testify as experts on the question of insanity. In Bailey v. State, supra, the court held that a clinical technician who had "some practical experience in working with psychologists" was not qualified to testify as an expert on the question of insanity. Id. at 1368. However, the court noted that "[h]ad [the witness] been a psychologist properly qualified on the nature and extent of his knowledge, he should have been allowed to testify as an expert as to the results of the psychological tests he administered to the defendant. Anno., 78 A.L.R. 2d 919 (1961); Alabama Code 1975, Section 12-21-160." Id.
"`Whether the qualification of the witness is sufficient is a question to be determined by the trial court, and the very nature of the test requires that its determination in particular cases be left to the sound discretion of the trial court, and which will not be revised on appeal, except for palpable abuse.' Jones v. State, 181 Ala. 63, 80, 61 So. 434 (1913); C. Gamble, McElroy's Alabama Evidence, Section 127.01(5) (3d ed. 1977)."
Id.
In the present case, there was testimony that the State's witness was a licensed Ph.D. in clinical psychology. There was also testimony that he had been a licensed clinical psychologist in Tennessee for approximately six and a half years. He further testified that he had had occasion to evaluate several hundred individuals who had been charged with crimes. He testified that he was currently serving as coordinator of forensic services at the mental health center. He stated that he had testified in criminal proceedings dozens of times in the past. Based on this testimony, we find no abuse of discretion by the trial court in allowing the witness to testify as an expert, concerning the appellant's sanity at the time of the offense.
AFFIRMED.
All the Judges concur.
NOTES
[1] The evidence presented that the appellant was told about his daughter's rape was insufficient to establish adequate legal provocation for a "heat of passion" killing, encompassed under manslaughter. See Biggs v. State, 441 So. 2d 989, 992 (Ala.Cr.App.1983). See also Cox v. State, 500 So. 2d 1296, 1298 (Ala.Cr.App.1986). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599951/ | 485 N.W.2d 578 (1992)
240 Neb. 975
Richard A. WHORLEY et al., doing business as Greenwood Truck Plaza & Copper Plate Restaurant, Appellants,
v.
FIRST WESTSIDE BANK, a Nebraska Corporation, Appellee.
No. S-89-1389.
Supreme Court of Nebraska.
July 2, 1992.
*580 Victor J. Lich, Jr., of Lich, Herold & Mackiewicz, Omaha, for appellants.
William E. Morrow and Mark J. Peterson, of Erickson & Sederstrom, P.C., Omaha, for appellee.
HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.
CAPORALE, Justice.
The district court sustained the demurrer of the defendant-appellee, First Westside Bank, to the third amended petition filed against it by the plaintiffs-appellants, Richard A. and Rita A. Whorley and R.A.W., Inc., doing business as Greenwood Truck Plaza & Copper Plate Restaurant, and thereafter dismissed the plaintiffs' action. Plaintiffs assign the dismissal as error. We reverse and remand for further proceedings consistent with this opinion.
The petition asserts three separate theories under which the plaintiffs claim to be entitled to recovery as the result of the damages they sustained as the proximate result of the bank's failure to lend them $65,000: (1) breach of contract, (2) promissory estoppel, and (3) breach of the bank's obligation to deal in good faith.
Resolution of this appeal is controlled by the axiom that when ruling on a demurrer, a court must assume that the pleaded facts, as distinguished from any pleaded legal conclusions, are true as alleged and must give the pleading the benefit of any reasonable inference from the facts alleged, but cannot assume the existence of a fact not alleged, make factual findings to aid the pleading, or consider evidence which might be adduced at trial. See Pappas v. Sommer, 240 Neb. 609, 483 N.W.2d 146 (1992).
The allegations of fact are that the plaintiffs consulted with the bank regarding a loan to enable them to purchase the truck plaza and restaurant and to finance improvements to the property. The bank agreed to provide financing in the amount of $575,000, provided the Small Business Administration would guarantee the loan. The business administration guaranteed 86 percent of the loan on April 18, 1985, and required that in "the event of a cost overrun on construction," either the plaintiffs or the bank would "provide additional funds, as needed, to complete construction on a lien subordinate to the collateral required by this Loan."
On May 1, 1985, the plaintiffs executed a promissory note in favor of the bank in the principal amount of $575,000, payable in monthly installments over a 20-year period. The plaintiffs also executed deeds of trust on the real estate on which the business improvements were located, as well as on the Whorleys' home, and a security *581 agreement granting the bank a security interest in various items of tangible and intangible personal property. The bank thereupon made the first disbursement on the loan in the amount of $305,000.
In early September 1985, when $220,000 remained undisbursed on the loan and major remodeling construction had not yet commenced, the plaintiffs determined that the construction costs for remodeling were going to exceed the original projections and that, therefore, the original loan amount of $575,000 would be insufficient to complete the project.
Richard Whorley then met with one of the bank's vice presidents and told him of the overrun. As a result, "[t]he original loan agreement was modified by [the vice president] orally representing and agreeing that the bank would increase the loan amount and loan the additional $65,000.00 to cover the cost overrun." The vice president then advised Whorley to proceed with the project because the business administration was "pressuring the [bank] to complete the loan." The plaintiffs confirmed the $65,000 cost overrun in a September 25, 1985, letter to the bank, and remodeling work commenced in October.
On November 1, 1985, the vice president spoke with Whorley and again advised that construction should proceed, but informed Whorley that the bank would not increase the original $575,000 loan by more than $45,000. Ultimately, the bank refused to loan any "additional funds" to the plaintiffs.
First, the plaintiffs urge that the bank breached the modified contract by refusing to increase the loan to $640,000. In response, the bank argues that as the plaintiffs failed to allege that the third-party guarantor to the original loan agreement, the business administration, agreed to the modification, the plaintiffs have failed to state a breach of contract action.
It is clear that the terms of a written executory contract may be orally modified by the parties thereto at any time after its execution and before a breach has occurred, without any new consideration. Frenzen v. Taylor, 232 Neb. 41, 439 N.W.2d 473 (1989); Cole v. Hickey, 215 Neb. 728, 340 N.W.2d 418 (1983); Havelock Bank of Lincoln v. Bargen, 212 Neb. 70, 321 N.W.2d 432 (1982); W. Wright, Inc. v. Korshoj Corp., 197 Neb. 692, 250 N.W.2d 894 (1977). We have also ruled that where the modification of a contract substantially changes the liability of the parties, mutual assent is required. Grand Island Prod. Credit Assn. v. Humphrey, 223 Neb. 135, 388 N.W.2d 807 (1986); Havelock Bank of Lincoln v. Bargen, supra. See, also, Westbrook v. Masonic Manor, 185 Neb. 660, 178 N.W.2d 280 (1970). The silence of a contracting party to a proposed modification leaves the contract unmodified. See Elgin Mills, Inc. v. Melcher, 181 Neb. 17, 146 N.W.2d 573 (1966). We have also declared that a contract made for the benefit of a third party with the third party's knowledge ordinarily cannot be changed without the third party's approval. Richards v. Estate of Gilmore, 140 Neb. 165, 299 N.W. 365 (1941).
It is true that the business administration's guaranty contemplated the possibility of cost overruns and obligated either the bank or the plaintiffs to provide the necessary funds to cover the overruns, should they occur. However, the business administration's requirement that any liens arising from such a loan be subordinated to those arising under the guaranteed loan necessarily implies that any cost overrun loan be the subject of a separate agreement. Were the overrun provision of the guaranty to be read as a before-the-fact consent to a modification, questions would arise as to whether only the amount of the loan could be modified or whether its other terms, such as its duration and the interest rate, could be modified as well. The requirement of a separate arrangement, on the other hand, obviates any confusion as to what might be modified and as to how the monthly payments were to be applied to the sums borrowed.
Thus, since the plaintiffs alleged that the bank agreed to modify the guaranteed loan, without alleging that the business administration consented to the modification, the district court properly determined *582 that the plaintiffs failed to state a breach of contract action.
The plaintiffs next assert that the bank is, in any event, estopped from refusing to loan them the additional $65,000 by its promise to do so, which promise "was intended to be relied upon and was relied upon [by them] to their prejudice and such reliance should reasonably have been expected by the [bank]." The bank counters with the argument that promissory estoppel is merely a substitute for consideration and that as the plaintiffs failed to allege the duration of the additional loan, the interest rate, the method of payment, or the additional collateral, the promise was not specific and definite enough to form a contract.
Contrary to the bank's view, the applicable rule is that "`[a] promise which the promisor should reasonably expect to induce action or forbearance on the part of the promisee or a third person and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise....'" Rosnick v. Dinsmore, 235 Neb. 738, 748, 457 N.W.2d 793, 799 (1990), quoting from the Restatement (Second) of Contracts § 90 (1981). See, also, Gilbert Central Corp. v. Overland Nat. Bank, 232 Neb. 778, 442 N.W.2d 372 (1989); Yankton Prod. Credit Assn. v. Larsen, 219 Neb. 610, 365 N.W.2d 430 (1985); Farmland Service Coop, Inc. v. Klein, 196 Neb. 538, 244 N.W.2d 86 (1976).
As does the bank in this case, the defendant in Rosnick argued that promissory estoppel only provided a substitute for consideration and could not be used as the basis for an independent cause of action and that to recover under the Restatement, supra, all elements to contract formation, apart from consideration, had to be present, including an offer with reasonably definite terms. We, however, held that "there is no requirement of `definiteness' in an action based upon promissory estoppel," only that the "reliance be reasonable and foreseeable." Rosnick, 235 Neb. at 749, 457 N.W.2d at 800. See, also, Kiely v. St. Germain, 670 P.2d 764 (Colo. 1983) (promissory estoppel is not defined totally in terms of contract principles and is often appropriate when the parties have not mutually agreed on all the essential terms of a proposed transaction); Hoffman v. Red Owl Stores, Inc., 26 Wis. 2d 683, 133 N.W.2d 267 (1965) (it would be a mistake to regard an action grounded on promissory estoppel as the equivalent of a breach of contract action). But cf., Neeley v. Bankers Trust Co. of Texas, 757 F.2d 621 (5th Cir.1985) (under Texas law, the indefiniteness of essential element of putative contract precluded application of promissory estoppel theory to enforce the contract); Jungmann v. St. Regis Paper Co., 682 F.2d 195 (8th Cir.1982) (in Iowa the elements of promissory estoppel require a clear and definite agreement); Keil v. Glacier Park, Inc., 188 Mont. 455, 462, 614 P.2d 502, 506 (1980) (under Montana law, promissory estoppel requires a "promise clear and unambiguous in its terms," and while parties had agreed that plaintiffs would provide an emergency water pump for defendant's use, there was no agreement as to what accessories would be provided, who would provide the maintenance, or what specific price would be paid other than reference to a reasonable rate, which were circumstances that disclosed a classic case of a promise that was not sufficiently clear to establish a contract by promissory estoppel); Weitzman v. Steinberg, 638 S.W.2d 171 (Tex.App. 1982) (doctrine of promissory estoppel enforces obligations which would otherwise be barred at law, for example an oral contract for the sale of real property, and does not create the essential contractual elements where none existed before).
The Rosnick court opined that "the doctrine of promissory estoppel `does not impose the requirement that the promise giving rise to the cause of action ... be so comprehensive in scope as to meet the requirements of an offer that would ripen into a contract if accepted by the promisee.'" Rosnick, 235 Neb. at 749, 457 N.W.2d at 800, quoting Hoffman v. Red Owl Stores, Inc., supra.
*583 Thus, the district court erred in finding that the plaintiffs failed to state a cause of action for promissory estoppel.
Lastly, the plaintiffs claim that the bank also breached its obligation of dealing in good faith as required by Neb.U.C.C. § 1-203 (Reissue 1980), which provides: "Every contract or duty within this act imposes an obligation of good faith in its performance or enforcement."
Having failed to plead facts establishing that the bank was contractually or otherwise bound to them under the code, it follows that the plaintiffs failed to state a cause of action under § 1-203 and that the district court correctly so ruled.
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.
WHITE, J., not participating in the decision. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599970/ | 1 So. 3d 1107 (2009)
James THOMPSON, Petitioner,
v.
STATE of Florida, Respondent.
No. 4D08-1849.
District Court of Appeal of Florida, Fourth District.
January 14, 2009.
Rehearing Denied March 11, 2009.
*1108 Robert David Malove of the Law Office of Robert David Malove, P.A., Fort Lauderdale, for petitioner.
Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for respondent.
TAYLOR, J.
James Thompson petitions this court for a writ of prohibition to prevent his further prosecution for felony driving under the influence (DUI). He contends that the trial court erred in denying his motion for discharge on speedy trial grounds. Specifically, petitioner, who initially faced a misdemeanor DUI charge that was dismissed and upgraded to a felony, argues that, because he was not served with a summons or formally arrested for the felony charge until after the speedy trial period had run, he is entitled to discharge and the state is not entitled to the fifteen-day recapture window of the speedy trial rule. We deny the petition because petitioner received actual notice of the felony filed by the state before the speedy trial period ran; he was not misled into believing that *1109 the charge had been abandoned and precluded from timely filing a notice of expiration of speedy trial time.
On July 30, 2007, the petitioner was arrested for felony DUI. The felony charge was filed in Case Number 07-14097CF10A. On August 23, 2007, the state filed an information charging misdemeanor DUI for this offense in Case Number 07-19134MM10A. On August 30, 2007, the state filed an information charging petitioner with felony DUI for the same offense in Case No. 07-17804CF10A and announced a "no information" on the original felony case (Case No. 07-14097CF10A). An arrest warrant issued for this case on that day.
On September 26, 2007, counsel for petitioner filed a notice of appearance in the misdemeanor DUI case. At a calendar call for that case, which was held on October 18, 2007 and attended by counsel for the petitioner, the state announced a nolle prosequi of the misdemeanor DUI and advised that the case had been "upfiled" to a felony DUI. The state also advised that the petitioner was scheduled for an arraignment on the felony charge on October 26. Petitioner was not personally served with a summons or formally arrested on the warrant for the "upfiled" felony. However, on October 11, 2007 a notice of the arraignment date was mailed to petitioner's home address.
Because the petitioner failed to appear at arraignment, the trial court issued a "no bond" capias. On February 6, 2008, petitioner surrendered on the capias at the Broward County Jail. On February 8, 2008, petitioner's counsel successfully argued that the petitioner's failure to appear at arraignment was not willful, as he had not been personally served with a summons. The trial court released petitioner on his own recognizance with special conditions.
On March 4, 2008, the petitioner moved for immediate discharge, asserting that the speedy trial period expired before the state arrested him or served him with sufficient legal notice. According to the petitioner, the speedy trial period expired on January 21, 2008, 175 days from his arrest on July 30, 2007.[1] Petitioner further argued that, because he was not served with process or formally arrested on the "upfiled" felony DUI until after the speedy trial period had run, the state was not entitled to the "recapture window" of rule 3.191(p)(3). The trial court denied petitioner's motion, whereupon he filed this petition for writ of prohibition.
In response to our order to show cause, the state argued that the petitioner had notice of the filing of the felony charge and notice of the arraignment date. The state attached exhibits to its response showing that the petitioner was sent written notice and that his attorney was given verbal notice of the filing of the felony charge and arraignment date in open court. According to the state, these facts distinguish this case from cases relied upon by petitioner, because in those cases the defendant was not notified in any manner that the state had re-filed charges.
The state cannot circumvent the speedy trial rule or toll the period by filing a nolle prosequi or by dismissing the charges before an information or indictment has been filed. Fla. R.Crim. P. 3.191(o); State v. Agee, 622 So. 2d 473 (Fla.1993); Genden v. Fuller, 648 So. 2d 1183 (Fla.1994). Similarly, the state may not arrest the defendant and then simply do nothing until after the speedy trial period *1110 has run. State v. Williams, 791 So. 2d 1088 (Fla.2001); see also Cordero v. State, 686 So. 2d 737, 738 (Fla. 3d DCA 1997) (holding that the state may not dismiss charges, refile them without notice to the defendant, and thereby circumvent the rule by later availing itself of the recapture window). In the above situations, the state's actions, or inaction, made it impossible for the defendant to file a notice of expiration of the speedy trial time or to demand a speedy trial. Permitting the state the benefit of the recapture period under those circumstances would eviscerate the rule.
In Puzio v. State, 969 So. 2d 1197, 1201 (Fla. 1st DCA 2007), the First District Court of Appeal explained the link between the state's right to recapture and the defendant's ability to exercise the right to file a notice of expiration when the speedy trial period has run. Id. at 1201-02. Because there the state had failed to notify the defendant when it finally filed charges against him, the court explained that the defendant "could not have known that he needed to file a notice of expiration." The defendant "was lulled into believing that the charges against him had been dropped."
In State v. Morris, 662 So. 2d 378 (Fla. 4th DCA 1995), cited by petitioner, we affirmed the speedy trial discharge of a defendant who was not notified or arrested on a cocaine trafficking charge re-filed by the state until after the speedy trial period had expired. There, the defendant had filed a demand for speedy trial on April 12, 1994. His demand entitled him, under Florida Rules of Criminal Procedure 3.191(b) and (p)(3), to have his trial commence no more than a total of sixty-five days later. Id. at 379. On May 18, 1994, the state nolle prossed the charge because of an unavailable witness, but re-filed the charge the next day, still within the speedy trial period. However, the defendant was not arrested on the re-filed charge, and his June 20, 1994 arraignment, at which he voluntarily appeared, did not occur until after expiration of the speedy trial period. The defendant moved for discharge on June 23. We rejected the state's argument that it was entitled to the fifteen-day recapture period, under rule 3.191(p)(3), to bring the defendant to trial.[2] We explained that "[u]nder these circumstances, the state, by nolle prossing and failing to notify defendant of the refiled charges or take him back into custody within the fifty days, deprived defendant of his right to have his trial commence no later than sixty-five days from his April 12 demand." Id. We stated that the state's failure to do anything to put the defendant on notice of the re-filed charges, so that he could have moved for discharge fifty days after filing his demand, violated the purpose of the rule and Agee. Id.
In petitioner's case, the state did not mislead him into believing the charges had been abandoned. To the contrary, petitioner's counsel was given express and specific notice on the record that the charge had been "upfiled" and that an arraignment was scheduled on the felony charge. Although the record does not reflect whether petitioner was present at the hearing when his counsel was so advised, *1111 notice to counsel is imputed to his client. State v. White, 794 So. 2d 682 (Fla. 2d DCA 2001). In addition, petitioner was mailed a notice to appear for arraignment on the felony charge.[3] Hence, the state did not lull petitioner into believing that the charges against him had been abandoned, and the state did not interfere with his ability to file a notice of expiration of the speedy trial time. Thus, the state is entitled to the benefit of the recapture period.
Petitioner argues that the notice relied upon by the state is legally insufficient and that nothing short of actual service of a summons or formal arrest on the warrant for the "upfiled" felony charge is sufficient notice. According to petitioner, the state should not get the benefit of the recapture window because it failed to formally arrest him on the re-filed charges within the speedy trial time. But the speedy trial rule contains no such requirement. In State v. Savitch, 925 So. 2d 482 (Fla. 4th DCA 2006), we determined that a notice of appearance filed by counsel on behalf of a client after the state had re-filed charges clearly established that the client was aware of the re-filed charges. Id. at 483. As in Savitch, the record in this case shows that petitioner had actual notice that the state had re-filed the felony charge. Therefore he was not prevented from asserting his rights under the speedy trial rule, and the trial court properly determined that the state was entitled to the recapture period. See State v. McCullers, 932 So. 2d 373, 376 (Fla. 2d DCA 2006) (finding that the state was entitled to the recapture period where it did not dismiss the charges and did nothing to lull the defendant into the belief that it was unnecessary to file a notice of expiration).
In its order, the trial court opined that we had silently overruled Morris in C.D. v. State, 865 So. 2d 605 (Fla. 4th DCA 2004), a case construing the state's entitlement to the recapture period under the juvenile procedure rules. We take this opportunity to clarify that we did not. In C.D., the state had filed a delinquency petition against the juvenile within the ninety-day speedy trial period but had not served or arraigned him on the petition until after expiration of the speedy trial time. The juvenile filed a motion for discharge and argued that the state's failure to serve and arraign him within ninety days from the date of his arrest deprived the state of the recapture period. We upheld the trial court's denial of the motion for discharge and its decision to allow the state the ten-day recapture period set forth in the juvenile procedure rules. In doing so, we receded from some earlier decisions determining the availability of the recapture period based upon service and notice requirements which were not specified in the rules. We recognized the difficulty created by those cases requiring the trial court to consider whether the juvenile had the ability to move for speedy trial discharge within a "short time" after expiration of the speedy trial period and agreed en banc upon the efficacy of following the clear provisions of the speedy trial rule. Id. at 609-10.
C.D. did not address Morris or a situation where affirmative state action misled a defendant into believing charges had been abandoned and thereby interfered with the defendant's ability to file a notice of expiration of the speedy trial time. The state had not done anything in C.D. to lead the juvenile to believe that the delinquency charges would not be pursued. See also State v. B.S.S., 890 So. 2d 487 (Fla. 5th DCA 2004) (agreeing with C.D. that service of a delinquency petition on the juvenile within the speedy trial period is not *1112 required for the state to be entitled to the recapture window).
The rule we applied in Morris continues to be viable in situations where the conduct of the state misleads a defendant into believing that it is not necessary to exercise the right to file a notice of expiration of the speedy trial time. In this case, petitioner received actual notice of the felony filed by the state before the speedy trial period ran and the state did nothing to lull him into believing that filing a notice of expiration of speedy trial time was unnecessary. The trial court did not err in concluding that the recapture period was available and in denying petitioner's motion for discharge.
The petition is DENIED.
HAZOURI and DAMOORGIAN, JJ., concur.
NOTES
[1] Florida Rule of Criminal Procedure 3.191(a) provides that a person charged with a felony shall be brought to trial within 175 days of arrest.
[2] Typically, when the speedy trial period of rule 3.191(a) has run, a defendant may file a notice of expiration of speedy trial time under rule 3.191(p)(2), and the court must then hold a hearing within five days. Unless one of the reasons under rule 3.191(j) is found, the state then has ten days to bring the defendant to trial or the defendant must be forever discharged. Fla. R.Crim. P. 3.191(p)(3). The time provided by the five- and ten-day periods under this rule has come to be known as the state's "recapture window" or "recapture period."
[3] The record does not conclusively show whether the notice was received. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599703/ | 571 So.2d 244 (1990)
Ernest Lee ALLMAN
v.
STATE of Mississippi.
No. 07-KA-58850.
Supreme Court of Mississippi.
November 21, 1990.
*245 William T. Bailey, Sr., Lucedale, for appellant.
Mike C. Moore, Atty. Gen., DeWitt Allred, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and PRATHER and ROBERTSON, JJ.
DAN M. LEE, Presiding Justice, for the Court:
Appellant, Ernest Lee Allman was indicted by the George County Grand Jury at the October 1986 Term on a single indictment containing three counts of raping his niece, C.A., who was 10 years old in 1986, the year of the alleged incidents. After a jury trial on January 30, 1987, appellant was found guilty on two of the three counts named in the indictment of violating MISS. CODE ANN. § 97-3-65(1) (1972).
On February 19, 1987, the court sentenced appellant as follows:
[T]he court sentences you to serve a period of life in prison on each count to the indictment for which you have been found guilty. That's counts 1 and 2 of the indictment. And the two sentences are to run concurrent.
Following the usual post-trial motions for J.N.O.V., or for a new trial, both of which were denied, appellant filed this appeal in October 1987, assigning twelve (12) errors, none of which we find meritorious. Each of the twelve issues are set forth and discussed hereafter in the body of this opinion.
Statement of the Facts
Due to the sensitive nature of this case, the names of the children involved are designated with initials.
C.A., ten years old at the time of the incident and 11 years of age at trial, testified that she was raped by appellant. The first occasion (Count 1) occurred in the late part of January or the early part of February 1986, during the afternoon hours, in a shed behind C.A.'s grandmother's house. C.A. was assisting appellant in cleaning out a refrigerator located in the shed. Also in the shed at the time was *246 C.A.'s four year old cousin, J.A.C.A. testified, "[h]e had sex with me."
Count 3 allegedly occurred in the summer of 1986, chronologically prior to Count 2. C.A. testified she was in her grandmother's trailer watching TV when appellant came in, sat beside her and "... started talking to me. I thought he was just being nice to me, talking to me ..." then "he started touching me ... [i]n my lower part of my body ... [h]e kept on talking to me and he asked me if I wanted to have sex with him. I said, no, leave me alone... . And he quit and he went back outside."
Count 2 occurred in September 1986. Alone in the trailer, C.A. was watching T.V. when appellant "came in. And he sat down beside me and he asked me what I was watching... . I told him... . And then he started touching me. And then he got my pants down, and then he started again."
Dr. Dayton Whites was called as a witness for the State. Defense counsel objected to the admission of Dr. Whites' testimony on the basis that Dr. Whites first entered the case on September 16, 1986, 7 days after the incident of September 9, 1986 (COUNT 2), and months after the other two incidents of February 1, 1986 (COUNT 1), and June 15, 1986 (COUNT 3). The Court overruled the objection. However, defense counsel was allowed, per his request, to voir dire Dr. Whites out of the presence of the jury and prior to Dr. Whites' testimony in the presence of the jury.
Dr. Whites testified before the jury that he performed a pelvic examination on C.A. in the Emergency Room of the local hospital on September 16, 1986. He had seen her before as a patient so, when she appeared at the hospital for medical attention on this day, he was called to examine her. The doctor asked C.A. some questions for purposes of medical diagnosis and treatment, one of which was had she ever had sexual intercourse and if so how many times. She answered she had and said at least ten times. In sum, Dr. Whites explained the process of a pelvic examination, that he performed one on C.A. using a virginal speculum but that in his opinion he could have used an adult speculum which is "very unusual" for a 10-year-old. In his opinion, his findings were consistent with the fact that C.A. had had intercourse on more than three occasions and that having intercourse with a male adult spread out over a period of time on at least ten occasions could cause the kind of dilation and enlargement he found C.A.'s vagina to have experienced. On cross-examination, the doctor opined that what happened to C.A.'s vagina happened at the very least, within the last few weeks prior to the examination. Other than that, he could not determine how far back in time the process had begun.
Testifying in his own defense, appellant denied ever penetrating C.A. on any occasion. With regard to the incident of February 1986, in the shed, he claimed it was C.A. who initiated a sexual pass at him, that "she pulled her britches down and [he] pulled [his] down" and that he lay down on top of her but then changed his mind and stopped all attempts to penetrate her. With regard to the incident during the summer 1986, appellant denied ever touching C.A. Finally, referring to the incident in the fall 1986, appellant claimed he was lying in bed watching T.V. when C.A. came into the room and made some sexual advances at him but he sent her away. He denies any touching took place much less penetration.
ASSIGNMENTS OF ERROR
# 1
Whether the trial court erred in denying appellant's motion for new trial on basis that role of preacher in court proceedings created prejudicial environment?
The facts of this first assignment of error are murky at best. The story that appellant would like for this Court to believe is that Rev. Roy T. Myers, Pastor of Rocky Creek Baptist Church, George County, Mississippi, acted as foreman of the Grand Jury that indicted appellant. This *247 much is true and can be substantiated in the record. However, the rest of the story is not nearly so easily proven. Appellant claims that the same Rev. Myers, "... at the beginning of this trial on Friday, 30 January 1987, ... was called forward and asked to lead in prayer." At the time of this trial, the prosecutrix was living at the Sheriff's Girls Ranch in the Rocky Creek Community, and had attended church and Sunday School at Rocky Creek Baptist Church where, as previously stated, Rev. Myers was the Pastor. Appellant asserts that after concluding the prayer in court, Rev. Myers, took a seat in the courtroom, across the aisle from the jury panel, by the superintendent of the Sheriff's Girls Ranch, Mr. Turner, for the selection of the petit jury to hear the case and, according to appellant, "[t]here being very few people in the courtroom."
Appellant asserts that the environment in the courtroom of this small community created a condition of prejustice [sic] against appellant "from the prayer at the beginning of the trial to the verdict of the jury." Therefore, appellant did not receive a fair and impartial trial.
The State's response is on target. At the hearing on the Motion for a New Trial, appellant put on no proof to substantiate any of the allegations in his motion, allegations repeated in his brief. In the absence of proof in support of the motion, the presumption in favor of the trial court's actions must prevail. Gordon v. State, 349 So.2d 554, 555 (Miss. 1977). Moreover, appellant failed to object at the appropriate time if he felt so prejudiced. The first the trial court heard of this matter was at the JNOV or New Trial hearing following the trial.
Finally, as the trial judge noted, any connection, in the minds of the jurors, between Reverend Myers and the trial of appellant would be speculative at most. The mere possibility that the jurors may have been influenced by some extraneous matter is not enough to set aside a verdict. Irving v. State, 361 So.2d 1360, 1368 (Miss. 1978), cert. den. 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979).
This Court finds that appellant failed to meet his burden of proof on the motion. The trial judge correctly labeled the effect appellant seeks as "speculation." Neither appellant nor the record reveals exactly what transpired, who was in the court room when the prayer was said or that any one or more jurors were indeed prejudiced by the preacher's prayer, his presence, his connection with the prosecutrix or the fact that he was foreman of the Grand Jury that indicted appellant. "An appellate court only acts on the basis of the contents of the record as made in the trial court and may not act upon statements of facts in briefs or arguments of counsel which are not reflected by the record." Gordon, supra, at 555.
# 2
Whether the trial court erred in denying the motion to quash the indictment because the surplus language added to the indictment did not comport with the appropriate statutory language and therefore prejudiced appellant?
MISS. CODE ANN. § 97-3-65(1) (1972) under which appellant was indicted states in pertinent part as follows:
Every person eighteen (18) years of age or older who shall be convicted of rape by carnally and unlawfully knowing a child under the age of fourteen (14) years, upon conviction, shall be sentenced to death or imprisonment for life in the State Penitentiary; ... In all cases where the child is under the age of fourteen (14) years it shall not be necessary to prove penetration of the child's private parts where it is shown the private parts of the child have been lacerated or torn in the attempt to have carnal knowledge of the child.
Appellant discerns that the above statute states; "... rape by carnally and unlawfully knowing ..." whereas the indictment states: "... unlawfully, wilfully and feloniously rape, ravish and carnally know ..." (emphasis added) Appellant argues that the record is void of "wilfully, feloniously, ravish" and the use of the terms influenced the minds of the jury.
*248 Appellee emphasizes that the term unlawfully appears in both the indictment and the statute. The term feloniously means unlawfully with the intent to commit a felony-grade crime. Winston v. State, 127 Miss. 477, 484-85, 90 So. 177 (1921); Martin v. State, 163 Miss. 454, 457, 142 So. 15 (1932). Willfully simply means voluntarily. Blacks' Law Dictionary, p. 1848 (3rd Ed., 1933). Ravish means rape. Id., p. 1497. Appellee rightfully contends that appellant has not shown that the use of any of this surplus language prejudiced him in any way, Swanier v. State, 473 So.2d 180, 188 (Miss. 1985) (surplus language in jury instruction), and we agree with appellee that this assignment of error is without merit.
# 3
Whether the trial court erred in denying appellant's Motion to Dismiss the Indictment because the indictment had stacked counts?
MISS. CODE ANN. § 99-7-2 (1972) (Supp. 1989) is pertinent to this issue and reads in its entirety as follows:
(1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan.
(2) Where two (2) or more offenses are properly charged in separate counts of a single indictment, all such charges may be tried in a single proceeding.
(3) When a defendant is convicted of two (2) or more offenses charged in separate counts of an indictment, the court shall impose separate sentences for each such conviction.
(4) The jury or the court, in cases in which the jury is waived, shall return a separate verdict for each count of an indictment drawn under subsection (1) of this section.
(5) Nothing contained in this section shall be construed to prohibit the court from exercising its statutory authority to suspend either the imposition or execution of any sentence or sentences imposed hereunder, nor to prohibit the court from exercising its discretion to impose such sentences to run either concurrently with or consecutively to each other or any other sentence or sentences previously imposed upon the defendant.
Appellant claims he is unable to find court authority for or against his position but that "it appears to me (appellant) that the statute above does not authorize the stacking of three different occasions for the alleged commission of the same offense." He concludes that "[f]or this Court to permit the trial of all three charges in one trial of the severity of this case confounds the defense of the case, and sand bags the defendant."
Appellee responds by correctly asserting that the three counts of the indictment involved the same type of conduct by appellant, committed by him upon the same person, only at different times. MISS. CODE ANN. § 99-7-2(1)(a) and (b) (Supp. 1989) clearly allows what was done in the indictment in the case at bar, particularly being that these three transactions, very plainly, were connected by the identity of the victim and by the identity of the kind of act committed by appellant. Furthermore, all of the evidence proving each count was fully admissible to prove each of the other counts. Therefore, if the State had tried appellant at three separate trials, testimony as to the two other acts of rape by this appellant would have been admissible at each of the three trials. See, Mitchell v. State, 539 So.2d 1366, 1372 (Miss. 1989); White v. State, 520 So.2d 497, 500 (Miss. 1988); Woodruff v. State, 518 So.2d 669, 671 (Miss. 1988).
We agree with the state's analysis as it comports in particular with MISS. CODE ANN. § 99-7-2(1)(b) (Supp. 1989). This Court has recently discussed in great detail the pros and cons of single multi-count indictments allowed by MISS. CODE ANN. § 99-7-2 (Supp. 1989). McCarty v. State, 554 So.2d 909 (Miss. 1989). After a thorough study of each of the opinions this Court has written with regard to § 99-7-2 *249 (Supp. 1989), effective from and after July 1, 1986, we think the series of two rapes and one alleged attempt were properly joined under one indictment, since they were part of a common scheme or plan, pursuant to the language of MISS. CODE ANN. § 99-7-2(1)(b) (Supp. 1989). We hold this assignment of error to be meritless.
# 4
Whether the trial court erred by allowing Dr. Whites to testify for the State?
Although not clearly argued in his brief, appellant's argument is probably best expressed in his final sentence on the matter which reads:
[t]he testimony of Dr. Whites places the act on the father of the child, (said father did on a subsequent day in the Circuit Court of George County, Mississippi, ple[a]d guilty to the charge of rape on the person of C.A. [sic]). Simmons v. State, 61 So. 826 [Miss. 1913].
The record reveals C.A. was brought to the hospital on the day Dr. Whites examined her by Mrs. Shirley Roberts, a social worker with the Welfare Department, "because of the story that she alleged." On direct examination, immediately after establishing that C.A. had told Dr. Whites for purposes of medical diagnosis and treatment that she had had intercourse "at least ten times," the following exchange ensued:
Q. Okay. Did she tell you who this person was as part of the medical history?
A. My medical history relates that it was her father.
BY MR. BAILEY: May it please the Court, that would be hearsay. We are going to object to the names of any persons. He can tell what he saw. BY MR. HOLLIMAN:
Q. I will rephrase it. I will strike that. What kind of examination did you perform on C.A. [sic], Dr. Whites?
A. I checked her female organs. I did a pelvic examination.
As evidenced above, the question asked by the prosecutor as to who this person was who had had intercourse with C.A. was objected to by the defense and was withdrawn by the prosecutor. The question having been withdrawn and the defense not having requested any further action by the trial court, appellee contends there was nothing for the trial court to rule upon and, therefore, no ground for assignment of error. Furthermore, appellee argues that there is no basis for any showing that this question and Dr. Whites' answer could have resulted in any prejudice to appellant, since Dr. Whites did not testify that C.A. said anything to him at all concerning appellant.
Dr. Whites' testimony was helpful to the triers of fact in that he explained the following: how to perform a vaginal examination; what condition to expect a 10-year-old female's vaginal cavity to be; that C.A.'s vaginal cavity was not normal; that, while masturbation with a foreign object such as a coke bottle could cause the large vaginal opening he found in C.A.'s case, it was his opinion that this process would be almost too painful to initially perform; that he found C.A.'s vaginal cavity to be "one that had been entered many times," and that he could not say for certain it was appellant who had done so. Dr. Whites' testimony was relevant and admissible under Rules 401, et seq., M.R.E., in that it tended to make more probable the proposition that this ten-year-old girl had had sexual intercourse with an adult male on more than one occasion.
This assignment of error is meritless.
# 5
Whether the trial court erred in failing to grant Instruction D-1 (Peremptory Instruction)?
Appellant recites a great deal of C.A.'s trial testimony and argues that said testimony "surely gives rise to great doubt and the court should have granted a directive [sic] verdict, defendant Instruction No. 1 should have been given." Said instruction read as follows:
The Court instructs the Jury to find the Defendant, Ernest Lee Allman, not guilty.
Albeit a valiant attempt, in our opinion, appellant has taken a great deal of testimony *250 out of context, picking and choosing testimony that favors his position and wishes this Court to review only that testimony, ignoring the balance of C.A.'s testimony. Furthermore, he cites no case law with regard to the standard of review on the trial level and the appellate level relative to whether a peremptory instruction should be given.
Appellee responds by stating that C.A. described the events surrounding counts one (1) and two (2). Her testimony made a prima facie case as to each of these two counts of rape in the indictment. Christian v. State, 456 So.2d 729, 734 (Miss. 1984); Barker v. State, 463 So.2d 1080, 1082 (Miss. 1985) (uncorroborated testimony of rape victim is sufficient to sustain rape conviction). The State's proof showed that C.A. was under the age of fourteen, that appellant was over the age of eighteen, and that appellant, on each of these two occasions, did rape the child and penetrate her private parts. § 97-3-65(1), MISS. CODE (1972) (Supp. 1987). Appellee, therefore, contends the evidence met the test for legal sufficiency. Weeks v. State, 493 So.2d 1280, 1282 (Miss. 1986).
Appellee is correct in its analysis above. The evidence in the case at hand presented a guilt issue for the jury and the trial judge correctly overruled the peremptory instruction. Also, see state law with regards to ISSUE # 10, hereafter which law overlaps with Issue # 5.
# 6 and # 9
Whether the trial court erred in refusing Instruction D-4?
Appellant requested and was denied Instruction D-4 which read as follows:
The Court instructs the Jury for the defendant that you cannot convict the defendant upon the uncorroborated testimony of the prosecutrix and that if you are not convinced beyond every reasonable doubt and to a moral certainty from all the testimony that the defendant is guilty, then your verdict should be: "We the jury find the defendant not guilty."
Appellant asserts that the State used the testimony of Dr. Dayton Whites to corroborate the testimony of the prosecutrix and contends that "nowhere was there in evidence from the examination of Dr. Whites that sex was involved or that Ernest Allman was involved."
This court has stated,
The corroboration proof was sought in the testimony of the witness, Merrill and the physician Dr. Kreb. As to the lat[t]er the physical evidence adduced from personal examination of the prosecutrix was found to be equally consistent with innocence, especially in view of his testimony that her condition could innocently have occurred.
Yancey v. State, 202 Miss. 662, 32 So.2d 151 (1947).
Instruction D-4 is an incorrect statement of the law in that it instructed the jury that corroboration of the victim's testimony was necessary. Christian v. State, 456 So.2d 729, 734 (Miss. 1984); Barker v. State, 463 So.2d 1080, 1082 (Miss. 1985). Thus, the trial court cannot be put in error for refusing to give an instruction that misstates the law. We find appellant's argument meritless.
# 7
Whether the trial court erred in refusing Instruction D-7?
Appellant requested and was denied Instruction D-7 which read as follows:
The Court instructs the Jury that the State must prove, in this case, beyond a reasonable doubt, that the Defendant did unlawfully, wilfully feloniously rape, ravish and carnally know the female child and that it shall not be necessary for the State to prove penetration of the female's private parts where it is shown the private parts of the female have been lacerated or torn in the attempts to unlawfully, wilfully feloniously rape, ravish and carnally know her. The Court further instructs you, that should you find from the facts in this case that there was no penetration of the private parts of the child, or that the child's private parts were not lacerated or torn, then it shall be your sworn duty to find the defendant, not guilty.
*251 Appellant contends that the only evidence of penetration was from the prosecutrix, the medical witness could not say there was sexual intercourse, the alleged events having happened from seven days to nine months before the examination which, according to appellant's version of the facts, was for the purpose of determining if the prosecutrix was pregnant; therefore, it was error not to give Instruction D-7.
We find that the testimony of the victim established that there was penetration of her private parts on both of the occasions charged in Counts One and Two. This being so, rape was proven, and it was not necessary for the State to put on any proof at all of laceration or tearing of the child's private parts. § 97-3-65(1), MISS. CODE ANN. (1972) (Supp. 1987). We further hold that the jury was adequately instructed by Instructions S-2A and S-2B as to the elements of the crime, and D-7 would have been confusing and misleading. Presley v. State, 321 So.2d 309, 310 (Miss. 1975) (not error for the Court to refuse instructions that do not properly state the law demanded by the facts of the case or are misleading or confusing).
Instructions S-2A and S-2B read:
S-2A
The Court instructs the Jury that if you believe from all of the evidence presented in this case beyond a reasonable doubt that the Defendant, Ernest Lee Allman, a male person above the age of eighteen (18) years, did on or about the 1st day of February, 1986, in George County, Mississippi, unlawfully, wilfully and feloniously rape, ravish and carnally know one C.A. [sic], a female person under the age of fourteen (14) years, then in that event, it is your sworn duty to find the defendant guilty of Capital Rape, Count 1.
S-2B
The Court instructs the Jury that if you believe from all of the evidence presented in this case beyond a reasonable doubt that the Defendant, Ernest Lee Allman, a male person above the age of eighteen (18) years, did on or about the 9th day of September, 1986, in George County, Mississippi, unlawfully, wilfully and feloniously rape, ravish and carnally know one C.A. [sic], a female person under the age of fourteen (14) years, then in that event, it is your sworn duty to find the defendant guilty, of Capital Rape Count 2.
We hold this assignment of error to be without merit.
# 8
Whether the trial court erred in refusing Instruction D-2?
Appellant requested and was denied Instruction D-2 which read as follows:
The Court instructs the Jury that in order to warrant a conviction in this the case evidence on the part of the State, on the whole, must be such as to produce a moral certainty of guilt to the exclusion of every reasonable doubt of the guilt of defendant, and, unless the evidence has this effect, the jury must acquit.
Appellant cites the case of Taylor v. State, 254 So.2d 728 (Miss. 1971) (murder) in which this Court held that
[t]he jury was properly instructed that they must return a verdict of not guilty if the state failed to prove guilt of the appellant beyond a reasonable doubt to a moral certainty and to the exclusion of every reasonable hypothesis than that of guilt of the accused.
Id. at 732-33.
Appellant argues that the verbiage in D-2 was the same as this Court allowed in Taylor, supra and not to allow same in the case sub judice was reversible error.
Appellee contends that Instructions S-2A and 2B, supra, D-3 and D-5 properly instructed the jury that the Defendant's guilt must be proven beyond a reasonable doubt.
Instructions S-2A and 2B are repeated hereinbefore. Instructions D-3 and D-5 read:
D-3
The Court instructs the Jury for the defendant that the burden of proving the defendant guilty of every material element *252 of the crime which he is charged is upon the State of Mississippi. Before you can return a verdict of guilty, the State must prove to your satisfaction beyond a reasonable doubt that the defendant is guilty.
D-5
The Court instructs the Jury that under the law no jury should nor has the right to convict the defendant upon mere suspicion, regardless of how strong that suspicion may be, nor simply because there may be a preponderance of evidence against the defendant, nor merely because there is or may be a reason to suspect that the defendant is guilty.
The Court now instructs you ladies and gentlemen of the Jury, that suspicion, no matter how strong or how great or how convincing, never rises to the dignity of evidence under the law, and before a jury on oath can lawfully convict, they must be convinced upon the evidence and the evidence alone that the defendant is guilty beyond a reasonable doubt.
Instruction D-2 was repetitive and, therefore, was properly refused by the court. Hunter v. State, 489 So.2d 1086, 1088-89 (Miss. 1986). The phrase "to a moral certainty" is confusing and misleading, since the State's burden is to prove the defendant's guilt "beyond a reasonable doubt". See, Smith v. State, 394 So.2d 882, 884-85 (Miss. 1981). (Reasonable doubt defines itself and needs no definition by this Court.) This assignment of error is without merit.
# 10
Whether the verdict of the jury was against the overwhelming weight of the evidence?
Appellant begins his argument by asserting that the prosecutrix told the court and jury that the crime was committed and then reversed her testimony on cross-examination. Appellant claims the prosecutrix was confused as to whether it happened in the shed, the house, the trailer, or in the barn. Furthermore, appellant claims that the minor was influenced in naming the defendant herein at the instance of Mrs. Roberts, Social Worker, Department of Public Welfare and Bill East, Criminal Investigator, District Attorney's Office, George, Greene and Jackson Counties. Finally, appellant cites to 13 different occasions in the record wherein the prosecutrix was asked to "slow down a little, speak up, ..." He then asks this Court to ponder the question: How could the jury hear the evidence and finally reach a just verdict when the testimony of the prosecutrix was not understandable?
Appellee's response asserts that C.A. testified as to the details of the rapes charged in Counts One and Two. She did not "reverse her testimony" as appellant asserts. The cross-examiner, perhaps because he was confused, asked questions that seemingly confused this eleven-year-old-child-witness, but she was able to tell her story despite the cross-examiner's efforts to trip her up. The testimony does not come close to supporting appellant's claim that C.A. was influenced by the welfare worker and/or the State's investigator; at any rate, appellant had full opportunity to test the truthfulness of all the State's witnesses on cross-examination.
Appellee concludes that the trial court was correct in refusing to disturb the verdict of the jury. Robinson v. State, 418 So.2d 749, 751 (Miss. 1982); Jones v. State, 358 So.2d 414, 416 (Miss. 1978).
The Law
Where a defendant has requested a peremptory instruction in a criminal case or after conviction moved for a judgment of acquittal notwithstanding the verdict, the trial judge must consider all of the evidence not just the evidence which supports the State's case ... The evidence which supports the case of the State must be taken as true ... The State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence ... If the facts and inferences so considered point in favor of the defendant with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, *253 granting the peremptory instruction or judgment n.o.v. is required. On the other hand, if there is substantial evidence opposed to the request or motion that is, evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair minded men in the exercise of impartial judgment might reach different conclusions the request or motion should be denied. (Emphasis added)
Weeks v. State, 493 So.2d 1280, 1282 (Miss. 1986); Gavin v. State, 473 So.2d 952, 956 (Miss. 1985) (citations omitted).
We note that the testimony of C.A. diametrically conflicts with the testimony of appellant. In short, she says appellant made all the initial sexual advances toward her and that appellant penetrated her on at least two (2) occasions. On the other hand, appellant admits to the incident in the shed wherein he engaged in a failed attempt to have sex with C.A., but that it was C.A. who initiated any and all sexual advances toward him and he never succeeded in penetrating her on any occasion.
Nevertheless, this Court, in attempting to reach its decision on the case sub judice, must keep in mind certain law we recently re-stated in the case of Pinson v. State, 518 So.2d 1220 (Miss. 1988), as follows:
"The Jury is the sole judge of the credibility of the witnesses and the weight and worth of their testimony. They may believe or disbelieve, accept or reject the utterance of any witness. Smith v. State, 463 So.2d 1102 (Miss. 1985); Campbell v. State, 278 So.2d 420 (Miss. 1973." Campbell v. State, 480 So.2d 1161, 1162 (Miss. 1985).
It is not our function to determine whose testimony to believe. Thomas v. State, 495 So.2d 481 (Miss. 1986); Anderson v. State, 461 So.2d 716 (Miss. 1984); and Groseclose v. State, 440 So.2d 297 (Miss. 1983).
We will not disturb a jury's finding on conflicting testimony where there is substantial evidence to support the verdict. Billiot v. State, 454 So.2d 445 (Miss. 1984); Thomas v. State, 495 So.2d 481 (Miss. 1986). Furthermore, the evidence is considered by this Court in the light most favorable to the verdict. Fisher v. State, 481 So.2d 203 (Miss. 1985), and Inman v. State, 515 So.2d 1150 (Miss. 1987).
Id. at 1224.
The jury's verdict in this case is given great deference. The purpose of our justice system in allowing a minor to testify in a case such as the one at hand is to hear what she has to say and let the jury weigh her testimony, together with all the other witnesses. We hold the jury's verdict was not against the overwhelming weight of the evidence and this assignment of error is without merit.
# 11
Whether the trial court erred in denying the Motion to Dismiss the Indictment on the grounds that the Indictment used the language "Female Person" in lieu of "Child"?
The statute involved, MISS. CODE ANN. § 97-3-65(1) (1972) states in part, "... unlawfully knowing a child ... "whereas the indictment stated "... carnally know C.A. [sic], a female person ..."
The entirety of appellant's argument on this issue reads as follows:
I have made a study to support the position that by use of the term female in the indictment rather than child as set forth in the amended statute leads the writer to believe that a reason exists which gave rise to the amended statute.
I have made study of the law in cases such as Carley v. State, 382 So.2d 1090 [(Miss. 1980)] and am not able to find comfort in them.
Appellee points out that § 97-3-65, MISS. CODE ANN. (1972), was amended in 1974 to make punishable the rape of a male as well as a female. The statute now reads, in pertinent part, "a child under the age of fourteen"; the indictment used the language "a female person under the age of fourteen".
The indictment's language is wholly included within the statutory language, since a female person under the age of fourteen is a child under the age of fourteen. The *254 proof showed that C.A. was in fact a female person under the age of fourteen.
Appellant was not prejudiced in the preparation of his defense or exposed to double jeopardy by the indictment's language. Deaton v. State, 242 So.2d 452, 453 (Miss. 1970). The indictment need not use the precise words of the statute. Watson v. State, 483 So.2d 1326, 1328 (Miss. 1986).
We hold there is no merit to this assignment of error.
# 12
Whether appellant was prejudiced by fact that District Attorney did not have written process as to Plea Bargaining?
It is appellant's contention that
being a small county in the circuit with Jackson County, and as a defense attorney, though having been an elected prosecuting attorney, we have the need in the judicial system of some written direction as to plea bargaining... . It appears to me the issue of plea bargaining resolved based on which assistant District Attorney came for the term. It appears to me that plea bargains in this case violates the U.S. Constitution, Fifth Amendment, due process of law and XIV, equal protection of the law, and Mississippi Constitution Section 14.
Appellee's retort is short but to the point; Appellant cites no authority and makes no argument in support of this proposition. Kelly v. State, 463 So.2d 1070, 1072 (Miss. 1985). There is no constitutional right to plea bargain. Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 51 L.Ed.2d 30, 43 (1977).
This assignment of error is meritless.
CONCLUSION
Having examined the briefs and record in this case with some care, we find no reversible error in the conviction on two counts of capital rape and sentences of life imprisonment; accordingly, we affirm the judgment of the Circuit Court of George County, Mississippi.
AFFIRMED.
ROY NOBLE LEE, C.J., HAWKINS, P.J., and PRATHER, ROBERTSON, SULLIVAN, ANDERSON, PITTMAN and BLASS, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599729/ | 169 Wis.2d 341 (1992)
485 N.W.2d 832
STATE of Wisconsin, Plaintiff-Respondent,
v.
Lance D. WINDOM, Defendant-Appellant.[]
No. 91-1938-CR.
Court of Appeals of Wisconsin.
Submitted on briefs February 4, 1992.
Decided May 5, 1992.
*343 For the defendant-appellate the cause was submitted on the briefs of Mary E. Waitrovich, first assistant state public defender.
*344 For the plaintiff-respondent the cause was submitted on the briefs of James E. Doyle, attorney general, with David J. Becker, assistant attorney general.
Before Moser, P.J., Sullivan and Fine, JJ.
SULLIVAN, J.
Lance D. Windom appeals from a judgment of conviction and from an order denying both his postconviction motion to vacate the sentence ordered after his parole revocation and his motion for resentencing before a different judge. Windom complains that his right to effective assistance of counsel, guaranteed by U.S. Constitution Amendment VI and by Wisconsin Constitution Article I, Section 7, was violated when his attorney failed to object to the State's breach of a plea agreement when it made a sentence recommendation at the resentencing hearing. We conclude that the State did not breach the plea agreement, and therefore, Windom's counsel was not ineffective. Accordingly, we affirm.
I.
The undisputed facts of record reveal that Windom was arrested for burglary of a jewelry store on October 31, 1989. On his plea of guilty, Windom was convicted on March 12, 1990, of burglary, party to a crime, in violation of secs. 943.10(1)(a) and 939.05, Stats., respectively. A plea agreement between the State and Windom provided that Windom would plead guilty to the burglary charge and the State in turn would not make a sentence recommendation to the sentencing court. The court withheld prison sentence, placed Windom on probation for three years, and ordered him to serve thirty days in the House of Correction as a condition of probation. The State honored its agreement by remaining silent.
*345 On April 19, 1990, Windom was charged with armed robbery and was subsequently sentenced to five years of incarceration.[1] Windom's probation was revoked.[2] On October 31, 1990, Windom reappeared before the circuit court for resentencing on the burglary charge. The State recommended that any sentence ordered by the court on the burglary conviction should be consecutive to the sentence imposed for the armed robbery offense because a concurrent sentence would unduly reward Windom for engaging in illegal conduct during his probation. The circuit court sentenced Windom to eighteen months imprisonment for the burglary conviction consecutive to the five-year sentence for the armed robbery. Windom's counsel made no objection to the State's consecutive-sentence recommendation.
The facts further show that the prosecuting attorney, by letter dated November 14, 1989, to Windom's attorney, stated:
If your client wishes to resolve this case short of trial, please be informed that upon a plea of guilty the State will be making no specific recommendation but leaving [sic] sentencing up to the court. Please let me know as soon as possible whether or not this will be a trial or a plea so that I may recall my witnesses.
Both Windom and the State, in the circuit court and on appeal, agree that this letter is the only documented evidence of the plea agreement.
*346 II.
This appeal raises the question of whether the burglary charge plea agreement was ambiguous and whether the State violated it when it recommended, on resentencing for the burglary, that its term run consecutive to the sentence for the subsequent armed robbery conviction.
Windom contends that his counsel's failure to object violated his constitutional rights and entitles him to a new sentencing hearing before a different judge. He also seeks specific performance of the plea agreement through a resentencing on the burglary conviction. Windom asserts that the assistant district attorney's letter outlining the terms of the plea agreement was ambiguous. Windom argues that "sentencing" in the State's promise not to make a "specific recommendation but leaving sentencing up to the court" is ambiguous. Windom asserts that a plea agreement is a contract that is constitutionally based and that it is the State's burden to insure that the terms of the agreement are unambiguous, citing United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir. 1986). Windom concludes that an ambiguity should be construed against the government and in favor of a defendant. See id. at 301.
Relying upon United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973), Windom asserts that the initial probation sentence on the burglary conviction and the sentence after probation revocation "were integral parts of the sentencing process." Id. at 1143. Ewing, as did Windom, entered a plea of guilty "in the expectation that the benefits of [the State's] promise would be available throughout the proceedings relevant to the determination of his sentence. The Government was obligated to fulfill its commitment at least until the question of *347 Ewing's sentence was finally resolved by the sentencing judge." Id.[3] Windom also cites State v. Wills, 765 P.2d 1114 (Kan. 1988), for the proposition that absent a provision in the plea agreement enabling the State to argue a different sentencing recommendation in a hearing for sentence modification, "the defendant would reasonably expect the State to be bound by its promise at all hearings which affect the determination of his sentence." Id. at 1119-20.
The State argues that a defendant bears the "burden . . . to show, by clear and convincing evidence, not only that a breach had occurred, but also that it was material and substantial," citing State v. Jorgensen, 137 Wis. 2d 163, 168, 404 N.W.2d 66, 68 (Ct. App. 1987). The State asserts that Windom did not sustain this burden of proof. Citing several federal circuit court opinions,[4] the State also asserts that since a court must ascertain what the parties "reasonably understood" the plea agreement provisions to mean, Windom did not sustain his burden of proving that his interpretation of the plea agreement was reasonable. The State postulates: " [w]hat right-thinking prosecutor would commit himself or herself to a particular course of action that might turn out to be *348 wholly inappropriate in light of subsequent developments . . .?"
III.
[1]
Existing state and federal law provides that:
Plea bargaining has been recognized as an "essential component of the administration of justice." Santobello v. New York, 404 U.S. 257, 260 (1971); State ex rel. White v. Gray, 57 Wis. 2d 17, 21, 203 N.W.2d 638, 640 (1973). As an important phase in the process of criminal justice, plea bargaining must be attended by procedural safeguards to ensure that a defendant is not treated unfairly. Santobello, 404 U.S. at 262. Thus, when a defendant pleads guilty to a crime pursuant to a plea agreement and the prosecutor fails to perform his part of the bargain, the defendant is entitled to relief. Santobello, 404 U.S. at 262.
State v. Beckes, 100 Wis. 2d 1, 3-4, 300 N.W.2d 871, 872-73 (Ct. App. 1980) (footnote omitted), review denied, 100 Wis. 2d 750, 308 N.W.2d 417 (1980).
[2-6]
A plea agreement is analogous to a contract and we therefore draw upon contract law principles for its interpretation.[5]Jorgensen, 137 Wis. 2d at 167, 404 N.W.2d at 68. The law in Wisconsin is that unambiguous contractual language must be enforced as it is written. Dykstra v. Arthur G. McKee & Co., 92 Wis. 2d 17, 38, 284 N.W.2d 692, 702-703 (Ct. App. 1979) (citation omitted), aff'd, 100 Wis 2d 120, 301 N.W.2d 201 (1981). Contractual *349 language is ambiguous only when it is "reasonably or fairly susceptible of more than one construction." Borchardt v. Wilk, 156 Wis. 2d 420, 427, 456 N.W.2d 653, 656 (Ct. App. 1990). Construction of a contract, including the determination of whether its terms are ambiguous, is a legal matter that we decide de novo. Ibid. We may not use the mechanism of construction to revise an unambiguous contract in order to relieve a party to a contract "from any disadvantageous terms" to which he or she has agreed. Dykstra, 92 Wis. 2d at 38, 284 N.W.2d at 703.
[7]
We determine that the plea agreement for the burglary charge was not ambiguous. The meaning of "sentencing," as used in the State's letter to Windom's counsel, is limited to that event which Windom was sentenced to probation and thirty days of incarceration as a condition of probation. If Windom understood the plea agreement to include all sentencings stemming from the burglary charge, then he should have evidenced such an understanding on the record or in a letter to the prosecuting attorney. We will not revise the existing agreement to comport with Windom's interpretation.
[8, 9]
Independent of his assertion that the plea agreement was ambiguous, Windom argues that the State breached the agreement. "Whether a breach of contract exists involves a question of fact. Findings of fact will not be overturned unless clearly erroneous." Jorgensen, 137 Wis. 2d at 169, 404 N.W.2d at 68 (citations omitted). The party asserting a breach of a plea agreement must "show, by clear and convincing evidence, not only that a breach occurred; but also that it was material and substantial." Id. at 168, 404 N.W.2d at 68.
*350 [10]
We determine that the scope of the plea agreement was limited to the original sentence for probation and therefore the State did not breach the plea agreement. There is no evidence to indicate the parties intended the plea agreement to extend beyond the original sentence for burglary. To treat the sentencing after probation revocation as an integral part of the original sentence would bind the State to that plea agreement ad infinitum in all subsequent sentence hearings arising out of the original crime. To bind the State to the plea agreement in this manner would undermine the plea agreement process such that the State would be less inclined to offer charge reductions in exchange for pleas of guilty.[6]
[11]
Independent of our determination of the scope of the plea agreement, we hold that new factors arose in this case to warrant the prosecutor's change in position. The State fulfilled its agreement to remain silent at the sentence hearing in which Windom received probation for the burglary conviction. Windom fails to identify clear and convincing evidence showing that the State breached the plea agreement. Jorgensen, 137 Wis. 2d at 168, 404 N.W.2d at 68. The prosecutor's promise to remain silent induced Windom to plead guilty, and Windom reaped the benefits of the State's promise.[7]*351 Windom's prison sentence for this same conviction occurred only after he committed a subsequent crime. The newly-committed crime was in part the cause of his probation revocation. The fact that Windom violated the terms of his probation was a "new and additional factor" that the State was entitled to consider in the subsequent and separate sentence hearing. Witzel v. State, 45 Wis. 2d 295, 300, 172 N.W.2d 692, 695 (1969). "Something new had been added" to the prosecution of this case, and under his own volition, "the defendant added it." Id.[8] See also State v. Pascall, 358 N.E.2d 1368, 1369 (Ohio Ct. App. 1972) ("[T]here is an implied promise by the defendant that the circumstances under which the bargain was made will remain substantially the same. A subsequent change, such as a conviction here of armed robbery, is sufficient to justify and excuse the prosecutor from fulfilling his promise to recommend probation."); State v. Giebler, 591 P.2d 465, 467 (Wash. Ct. App. 1979) (an assault committed by the convict while waiting for sentencing on his guilty plea was a sufficient change in circumstances to justify the State's withdrawal of its promised sentence recommendation), review denied, 92 Wash. 2d 1013 (1979).
In summary, the State fulfilled its duty under the plea agreement by remaining silent at the original sentencing hearing. The scope of the plea agreement was *352 limited to the original hearing for which Windom was sentenced to probation. In any event, the State had a basis in fact to change its position because of the new factor added by the defendant.
By the Court. Judgment and order affirmed.
FINE, J. (concurring).
Lance D. Windom's contentions on this appeal reflect the Alice-In-Wonderland nature of the plea-bargaining process that pollutes our criminal justice system.[1] As the majority points out, Windom received probation for his burglary. As a condition of his probation, Windom was ordered to serve thirty days in the Milwaukee House of Correction on work-release. That was on March 12, 1990. On April 19, 1990, he committed an armed robbery. As a result, Windom's probation was revoked. At the sentencing-after-revocation hearing for the burglary, the State recommended that the trial court impose a sentence consecutive to the five-year sentence imposed on the armed-robbery *353 conviction. The trial court followed the State's recommendation.
Windom complains that the State's recommendation at the sentencing-after-revocation hearing violated the State's original plea-bargaining commitment to make "no specific recommendation but leaving sentencing up to the court."[2] His complaint borders on chutzpah.[3] As the Court of Appeals of California eloquently *354 put it:
A consummated plea bargain does not insulate a defendant from the consequences of his future misconduct. A defendant gets the benefit of his bargain only once. Like time, a plea bargain once spent is gone forever.
People v. Jones, 180 Cal. Rptr. 228, 233 (Ct. App. 1982). For the foregoing reasons, I join in the majority's decision.
NOTES
[] Petition to review denied.
[1] Prior to serving his thirty-day incarceration as a condition of probation, Windom was arrested for armed robbery.
[2] Windom's probation officer recommended revocation because he failed to keep a required probation appointment, he tested positive for marijuana use, and he was involved in the new charge of armed robbery.
[3] The prosecution in Ewing agreed not to oppose probation in exchange for his plea of guilty to two counts of aiding and abetting the interstate transport of stolen motor vehicles. On Ewing's subsequent motion for a sentence reduction pursuant to Rule 35 of the Federal Rules of Criminal Procedure, the State opposed his request for probation. Ewing, 480 F.2d at 1142-43.
[4] United States v. Jimenez, 928 F.2d 356, 363 (10th Cir. 1991), cert. denied, 112 S. Ct. 164 (1991); United States v. Casamento, 887 F.2d 1141, 1181 (2nd Cir. 1989), cert. denied, 493 U.S. 1081 (1990); United States v. Read, 778 F.2d 1437, 1441 (9th Cir. 1986), cert. denied, 479 U.S. 835 (1986); and United States v. Crusco, 536 F.2d 21, 27 (3rd Cir. 1976).
[5] But see United States v. Bowler, 585 F.2d 851, 854 (7th Cir. 1978) (The Government should not resort to a rigidly literal approach in the construction of plea agreement language.).
[6] "Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons." Santobello v. New York, 404 U.S. 257, 261 (1971).
[7] A promise by the State must be fulfilled "when a plea rests in any significant degree on a promise or agreement . . . so that it can be said to be part of the inducement or consideration." Santobello, 404 U.S. at 262. Santobello concerned a promise by a prosecutor that the state would remain silent as to a sentence recommendation to the court at the guilty plea hearing. Subsequently, a different prosecutor recommended to the sentencing court that a maximum sentence be imposed. Id. at 258-59.
[8] The State in Witzel originally agreed to remain silent on a sentence recommendation at the defendant's sentence hearing. However, since the defendant was out of state and in custody on the day of sentencing, "the district attorney was entitled to take this new and additional factor into consideration in making his recommendation as to the sentence that should be imposed." Witzel, 45 Wis. 2d at 300, 172 N.W.2d at 695.
[1] As I have explained extensively elsewhere, "plea bargaining" is the expediency-based practice where a prosecutor offers an inducement not warranted by the facts in order to persuade a defendant either to plead guilty or otherwise accept conviction. R.A. FINE, ESCAPE OF THE GUILTY (1986); Fine, Plea Bargaining: An Unnecessary Evil, 70 MARQ. L. REV. 616 (1987). See also Alschuler, Plea Bargaining and its History, 79 Col. L. Rev. 1 (1979). Although the practice "can tend to subvert the ends of justice rather than to advance them," Pontow v. State, 58 Wis. 2d 135, 142, 205 N.W.2d 775, 779 (1973), it nevertheless flourishes in mostbut not alljurisdictions because it appears to be necessary "to speed litigation" in our criminal courts, Armstrong v. State, 55 Wis. 2d 282, 287, 198 N.W.2d 357, 359 (1972). In reality, however, by weakening deterrence, the practice encourages criminality and, accordingly, contributes to the influx of criminals that clog our courts.
[2] Despite the inference to the contrary in the bargain between Windom and the State, and the unfortunate practice by some judges, see, e.g., State v. Brown, 150 Wis. 2d 636, 638-639, 443 N.W.2d 19, 20 (Ct. App. 1989) (colloquy by trial judge rubber-stamping plea-bargained sentence recommendation*), sentencing is exclusively the trial court's responsibility subject to appropriate appellate review. Trial judges may not involve themselves in the plea-bargaining process, Rahhal v. State, 52 Wis. 2d 144, 150, 187 N.W.2d 800, 804 (1971), and are not bound by any plea-bargained deals that may be presented to them, State v. McQuay, 154 Wis. 2d 116, 128, 452 N.W.2d 377, 382 (1990).
* The trial-court colloquy in Brown was as follows:
THE COURT: ... It's my understanding the sentence is four years in the Wisconsin State Prison System with credit for 14 days served. Did I write that down correctly?
MS. SAYLES [the prosecutor]: Yes.
THE COURT: Mr. Lubarsky [defense counsel], that's your understanding?
MR. LUBARSKY: Yes.
THE COURT: Mr. Brown, is that your understanding?
MR. BROWN.: Yes, sir.
THE COURT: Is there anything you would like to say today?
MR. BROWN: No, sir.
THE COURT: Okay. The sentence will be then as stated on the record . . .. We are adjourned. Thank you.
Brown, 150 Wis. 2d at 638-639, 443 N.W.2d at 20.
[3] The Yiddish word chutzpah is colorfully defined by the classic example of the gall displayed by the young man who, after he is convicted of murdering his parents, seeks leniency because he is an orphan. See L. ROSTEN, THE JOYS OF YIDDISH 93 (Pocket Book 1970). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599898/ | 1 So. 3d 802 (2009)
STATE of Louisiana
v.
Perry A. SMITH.
No. 08-KA-528.
Court of Appeal of Louisiana, Fifth Circuit.
January 13, 2009.
Rehearing Denied February 17, 2009.
Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Desiree M. Valenti, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
Prentice L. White, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
Panel composed of Judges MARION F. EDWARDS, FREDERICKA HOMBERG WICKER, and GREG G. GUIDRY.
FREDERICKA HOMBERG WICKER, Judge.
In this criminal proceeding, Perry A. Smith appeals his guilty plea conviction and sentence. The defendant was charged by bill of information with possession of a firearm by a convicted felon, La.R.S. 14:95.1, allegedly occurring on January 16, 2007. Later that year, the defendant pleaded guilty to the amended, lesser included offense of attempted possession of a firearm by a convicted felon, La.R.S. 14:27 and R.S. 14:95.1. The defendant also pleaded guilty to an unrelated charge of possession of heroin, a violation of La.R.S. 40:966(C). Pursuant to a negotiated plea agreement, the trial judge sentenced the defendant to five-year concurrent sentences in the instant matter, proceeding number 07-1087, and in the unrelated bill, proceeding number 05-5258. The trial judge further ordered that only the first three years be served in the Department of Corrections. That three years was to be served without benefit of parole, probation, or suspension of sentence. After three years of imprisonment, the defendant was ordered to be placed on home incarceration for the remaining two-year term. As part of the defendant's plea bargain, the state agreed not to file a habitual offender bill of information.
*803 In 2008, the defendant filed a pro se timely application for post-conviction relief. Upon finding that the defendant had not exhausted his appeal rights, the trial judge granted the defendant an out-of-time appeal. The defendant's application for post-conviction relief and the order granting the appeal pertain solely to the instant matter, proceeding number 07-1087. Therefore, proceeding number 05-5258 is not the subject of this appeal.[1]
On appeal, the defendant argues that the trial judge erred in granting him an appeal before holding an evidentiary hearing on his claim that his trial counsel was ineffective in failing to advise him that he was agreeing to a sentence imposed without benefit of parole, probation, or suspension of sentence. The defendant maintains that he would not have pleaded guilty had he known his sentence would be imposed without the statutory benefits. He further contends that the district court erred in dismissing the ineffective assistance and illegal sentencing claims he urged in his application for post-conviction relief without addressing the merits. The thrust of his argument is that he should be allowed to withdraw his plea to attempted possession of a firearm by a felon because his plea was unknowingly entered. Upon error patent review, we find that the sentence for attempted possession of a firearm by a felon is illegal. Accordingly, we pretermit a discussion of the defendant's assigned errors. We follow the principles enunciated in State v. Campbell, 01-0329 (La.11/2/01), 799 So. 2d 1136 (per curiam) and State v. Williams, 00-1725, pp. 16-17 (La.11/28/01), 800 So. 2d 790, 797. Hence, we annul and set aside the sentence imposed for attempted possession of a firearm by a felon, and remand for further proceedings.
ILLEGAL SENTENCE
An error patent review shows that the trial court imposed an illegal sentence. The court ordered that in lieu of imprisonment that the remaining two years of the defendant's five-year sentence be served in home incarceration, even though the home incarceration article prohibits home incarceration in this case.
The defendant entered a guilty plea to attempted possession of a firearm by a convicted felon. La.R.S. 14:95.1(B), pertinently provides that whoever is found guilty of being a convicted felon in possession of a firearm "shall be imprisoned at hard labor for not less than ten nor more than fifteen years without the benefit of probation, parole, or suspension of sentence [.]" (Emphasis added). Therefore, the penalty provision for possession of a firearm by a convicted felon mandates imposition of the statutory restrictions. It also provides that the sentence be served at hard labor.
The attempt statute, La.R.S. 14:27(D)(3), pertinently provides that whoever attempts to commit a crime shall be punished "in the same manner as for the offense attempted[.]" In State ex rel. Sullivan v. Maggio, 432 So. 2d 854, 857 (La. 1983), the Supreme Court analyzed the "in the same manner" phrase as it applied to an attempted armed robbery offense. The *804 armed robbery crime, like the instant crime, required the statutory restrictions. The Court held: "A realistic and genuine construction of the two provisions requires that persons who attempt armed robbery shall be punished at hard labor without benefit of parole, probation or suspension of sentence." Id. We agree with the Third Circuit that the same reasoning applies to the crime of attempted possession of a firearm by a convicted felon. See: State v. Everett, 05-214, p. 4 (La.App. 3 Cir. 11/2/05), 916 So. 2d 1210, 1212. Therefore, the defendant's sentence for attempted possession of a firearm by a convicted felon in this case required imprisonment without benefit of probation, parole, or suspension of sentence.
Moreover, La. Const, art. I, § 17 and La.C.Cr.P. art. 782(A) provide different jury requirements for relative felonies[2] and hard felonies. A person is entitled to a twelve-person jury for a crime such as possession of a firearm by a convicted felon, a crime necessarily punishable by imprisonment at hard labor. But, he is entitled to a six-person jury for a crime punishable by a term of imprisonment with or without hard labor. Id. Those jury requirements apply as well to attempted offenses. See: State v. Palermo, 00-2488, p. 11 (La.5/31/02), 818 So. 2d 745, 753. Here, the sentence for possession of a firearm by a felon is at hard labor; it is not a relative felony. Likewise, the sentence for the attempt is a hard felony.
The trial judge imposed the statutory restrictions on the three-year portion of the sentence. However, he imposed home incarceration in lieu of imprisonment, for the remaining two-year term. Since he imposed home incarceration in lieu of imprisonment, La.C.Cr.P. art. 894.2 governs.
La.C.Cr.P. art. 894.2(A)(1) provides that a defendant may be sentenced to home incarceration in lieu of imprisonment where "[t]he defendant is eligible for probation or was convicted of a misdemeanor or a felony punishable with or without hard labor." (Emphasis added). Thus, under Article 894.2(A)(1), a defendant who is convicted of a felony, which imposes statutory restrictions on the sentence, is still eligible for home incarceration provided that the felony is one that is "punishable with or without hard labor," i.e. a relative felony.
The Louisiana Supreme Court recognized the trial judge's authority under Article 894.2 "to sentence a defendant to home incarceration in lieu of imprisonment, even though the statute the defendant was convicted under requires the defendant be sentenced to a term of imprisonment without benefit of probation, parole, or suspension of sentence." State v. Rome, 96-0991, p. 5 (La.7/1/97), 696 So. 2d 976, 979. (Citation omitted). But, the Court also recognized that "before the trial judge may sentence a defendant to home incarceration in lieu of a traditional corrections facility, the defendant must satisfy all of the criteria established by La.C.Cr.P. art. 894.2." Id.
In Rome, the defendant case met "the requirements of paragraph (A)(1) of the statute as he was convicted of a felony punishable with or without labor." 96-0991 at 5, 696 So.2d at 979. His sentence was illegal, however, on other grounds. *805 Former Article 894.2,[3] which is not applicable here, required the Department of Public Safety and Corrections through the division of probation and parole's prior recommendation before sentencing the defendant to home incarceration in lieu of imprisonment. 96-0991 at 5, 8, 696 So.2d at 979, 981. The Court annulled and set aside the illegal sentence because that requirement had not been met. 96-0991 at 8, 696 So.2d at 979, 981
In the present case, the trial judge could not impose a sentence of home incarceration because the felony is not one that is "punishable with or without hard labor," i.e. a relative felony. Thus, the sentence is illegal. "An illegal sentence may be corrected at any time by the court that imposed the sentence or by an appellate court on review." La.C.Cr.P. art. 882.
In this case, the defendant bargained for and received a negotiated sentence and an agreement that the state would not file a habitual offender bill. As such, a sentencing errors patent review would necessarily affect the negotiated plea bargained sentence. Even so, a defendant does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725, pp. 16-17 (La.11/28/01), 800 So. 2d 790, 797.
We are mindful that the Louisiana Supreme Court cautions against exercising error patent review to disturb a negotiated plea. In State v. Campbell, 01-0329 (La.11/2/01), 799 So. 2d 1136 (per curiam) (citation omitted), the Supreme Court stated that, "[a]n appellate court should refrain from employing errors patent review to set aside guilty pleas about which the defendant makes no complaint and which resulted in the dispositions of the cases favorable to the defendant." Thus, the purpose of the Campbell edict is to avoid vacating the guilty plea and providing the defendant with a remedy that he did not request. As such, the edict applies to an error patent review of guilty pleas. State v. Robinson, 06-1406 (La.12/8/06), 943 So. 2d 371, 372 (per curiam) ("[A] guilty plea colloquy is not part of the record for purposes of error patent review.").
Still, recognizing the impact that a negotiated illegal sentence has on a plea bargain, this court has considered the Campbell prohibition in its sentencing error patent review where a negotiated illegally lenient sentence is based on a plea bargain. In some situations, we have exercised our discretion and refrained from the court's authority under La.C.Cr.P. art. 882 to correct illegal sentences at any time. See: State v. Thomas, 07-940, p. 6 (La.App. 5 Cir. 3/25/08), 983 So. 2d 943, 946; State v. Grant, 04-341, pp. 4-5 (La. App. 5 Cir. 10/26/04), 887 So. 2d 596, 598.
In other situations, however, we have chosen to recognize such error patent. See: State v. Hines, 07-313, pp. 2-3 (La. App. 5 Cir. 11/27/07), 970 So. 2d 707, 709; State v. Quinones, 03-907, pp. 11-12 (La. App. 5 Cir. 12/30/03), 864 So. 2d 824, 831.
But in recognizing the error patent in Hines and Quinones, we left intact the *806 guilty pleas. We vacated the sentences and reserved the defendant's right to withdraw his guilty pleas. Thus, we guarded against the Campbell prohibition of setting aside the pleas, which were indirectly affected by the negotiated illegally lenient sentences.
In this case, we exercise our discretion to notice the illegally lenient sentence.
In conclusion, the sentence for attempted possession of a firearm by a convicted felon, which imposed home incarceration in lieu of imprisonment is annulled and set aside, and the case is remanded to the district court in order that the defendant may be sentenced according to the law. However, we reserve the defendant's right to withdraw his guilty plea to the offence of attempted possession of a firearm by a convicted felon since it was predicated on the waiver of Boykin constitutional rights.
DECREE
We hereby affirm the defendant's conviction of attempted possession of a firearm by a felon. The sentence is annulled and set aside and the case remanded to the trial court for resentencing. The defendant's right to withdraw his plea of guilty to the crime of attempted possession of a firearm is reserved.
CONVICTION AFFIRMED; ATTEMPTED POSSESSION OF FIREARM BY CONVICTED FELON SENTENCE ANNULLED AND SET ASIDE; CASE REMANDED.
GUIDRY, J., dissents with reasons.
GUIDRY, J., dissents with reasons.
I respectfully disagree with the action taken by the majority, vacating the Defendant's negotiated sentence entered pursuant to a plea bargain. See State v. Campbell, 01-0329 (La.11/2/01), 799 So. 2d 1136.
The Defendant pled guilty and was sentenced on September 27, 2007. On April 28, 2008, he filed an application for post-conviction relief arguing that his counsel was ineffective. He requested an evidentiary hearing. Instead of addressing the asserted claim, the trial judge, on his own motion, gave the Defendant an out of time appeal. On appeal, the Defendant argues that his case should be remanded to the district court for an evidentiary hearing on his claim of ineffective assistance of counsel. Instead, the majority "affirms" his conviction, vacates his bargained for sentence, and reserves to the Defendant the right to withdraw his plea. In my view, this Court erred in doing so and should have, instead, remanded the case for an evidentiary hearing on the Defendant's ineffective assistance of counsel claim.
It is well settled that ineffective assistance of counsel claims are generally addressed in post-conviction proceedings rather than on direct appeal, State v. Demise, XXXX-XXXX, p. 35 (La.4/3/01), 802 So. 2d 1224, 1247-1248, cert. denied, 534 U.S. 926, 122 S. Ct. 283, 151 L. Ed. 2d 208 (2001), to allow the trial court to conduct, if warranted, a full evidentiary hearing, State v. Howard, XXXX-XXXX, p. 15 (La.4/23/99), 751 So. 2d 783, 802, cert, denied, 528 U.S. 974, 120 S. Ct. 420, 145 L. Ed. 2d 328 (1999). State v. Berry, 08-151 (La.App. 5 Cir. 6/19/08), 989 So. 2d 120; State v. Nguyen, 06-969 (La.App. 5 Cir. 4/24/07), 958 So. 2d 61, 65, writ denied, 07-1161 (La.12/7/07), 969 So. 2d 628 (citing State v. Truitt, 500 So. 2d 355 (La.1987)). This case exemplifies the reason for the rule. Defendant's claim, that his counsel was ineffective for failing to advise him that his sentence would be served without benefit of parole, probation or suspension of sentence, cannot be addressed on appeal because we have no record from which to determine its merit.
*807 Defendant filed his claim as a post-conviction relief application asking for an evidentiary hearing. He did not ask for or want an out of time appeal because he knew his claim could not be considered on appeal. On appeal, he asks only for a remand for an evidentiary hearing. Therefore, in my view, rather than "affirming" his conviction and vacating his bargained for sentence, this Court should remand the case for an evidentiary hearing on the Defendant's ineffective assistance of counsel claim. Accordingly, I dissent.
APPLICATION FOR REHEARING
Rehearing denied.
GUIDRY, J., Grants Rehearing with Reason.
The Defendant filed an application for post-conviction relief alleging that his counsel was ineffective and requesting an evidentiary hearing. He did not simply assert a motion to withdraw his guilty plea. I vote to grant the rehearing and would order the case remanded for an evidentiary hearing on the Defendant's ineffective assistance or counsel claim.
WICKER, J. Denies Rehearing with Reasons:
Mr. Smith requests a rehearing in this case arguing that this Court should vacate its judgment that corrected an illegal negotiated sentence. Mr. Smith states that he does not complain of his sentence. Rather, he seeks an evidentiary hearing on his post-conviction claim that trial counsel was ineffective for failing, to advise him that his five-year sentence had the statutory restrictions of parole, probation, and suspension of sentence. He claims that had he been properly informed, he would have elected to proceed to trial or attempted to negotiate a more favorable plea with the state. For the forgoing reasons, I vote to deny Mr. Smith's application for rehearing.
The thrust of Mr. Smith's argument on appeal is that his guilty plea was induced by counsel's alleged failure to advise him of the restrictions. State v. Dixon, 449 So. 2d 463, 464, 465 (La.1984) (citations omitted) held that under settled law, a guilty plea is constitutionally infirm when a defendant is induced to enter that plea by a plea bargain or by what he justifiably believes was a plea bargain, and that bargain is not kept. In such cases, the defendant has been denied due process of law because the plea was not entered freely and knowingly. Even when there is no such agreement, if a defendant justifiably believed there was and pleaded guilty in part because of that justifiable belief, the guilty plea was not knowingly made. The remedy in such a case is to either enforce the bargain or to allow a defendant to withdraw the guilty plea. In State v. Dixon, the Louisiana Supreme Court recognized that a post-sentencing motion to withdraw a guilty plea based on a constitutional infirmity can be brought either by appeal or by post-conviction relief. 449 So.2d at 464.
Therefore, Mr. Smith raised an issue cognizable on appeal. However, a defendant does not have a constitutional or statutory right to an illegal sentence. State v. Williams, 00-1725, pp. 16-17 (La.11/28/01), 800 So. 2d 790, 797.
A plea agreement with a negotiated illegal sentence is an absolute nullity which cannot be confirmed on appeal. State v. Hines, 07-313, p. 4, 970 So. 2d 707, 709. Therefore, Mr. Smith is not entitled to specific performance of the plea agreement that provided for an illegal sentence. As such, he is only entitled to his alternate requested remedy of electing to proceed to trial or attempting to negotiate a more favorable plea with the state.
*808 By vacating the illegal sentence and reserving Mr. Smith's right to withdraw his guilty plea, we have provided Mr. Smith with the remedy he seeks which is provided by law. Furthermore, in keeping with State v. Campbell, 01-329, p. 1 (La.11/2/01), 799 So. 2d 1136, we did not vacate the defendant's guilty plea, but reserved to him the right to maintain his guilty plea in light of the mandatory statutory restrictions or to withdraw his guilty plea prior to resentencing on remand. See: State v. Chisley, 03-426, pp. 9-10 (La.App. 5 Cir. 10/15/03), 860 So. 2d 45, 50-51, writ denied, 03-3358 (La.4/2/04), 869 So. 2d 874. See also: State v. Leday, 05-1641, p. 6 (La.App. 3 Cir. 5/3/06), 930 So. 2d 286, 289-90, citing State v. Chisley.
Accordingly, I vote to deny the application for rehearing.
NOTES
[1] The confusion arose when the defendant filed his pro se application for post-conviction relief, which referred only to the instant matter in the caption. We note that the form for the Uniform Application for Post-Conviction Relief provided that the Clerk would provide the docket number of the proceeding. A review of that application reveals that the defendant discussed both plea convictions. Thus, it appears that he intended to seek relief as to both of them. The trial judge, however, granted an appeal as to the instant matter only since just that district court number (which apparently was provided by the Clerk and not the defendant) was listed on the defendant's pleading.
[2] The expression "relative felony" is used to refer to crimes for which hard labor may or may not be imposed. Such "relative felonies" are tried by six-member juries. See, e.g., State v. Robinson, 361 So. 2d 864, 865, n. 1 (La.1978) (per curiam) (Court refers to such crimes as "relative felonies"); State v. Boudreaux, 526 So. 2d 230, 231-32 (La.App. 5 Cir. 1988), writ denied, 532 So. 2d 176 (La. 1988) ("Aggravated battery is a relative felony punishable by imprisonment with or without hard labor for not more than ten years.").
[3] Article 894.2(2) now provides: "In felony cases, the Department of Public Safety and Corrections, through the division of probation and parole, recommends home incarceration of the defendant and specific conditions of that home incarceration, or the district attorney recommends home incarceration, or, after contradictory hearing, the court determines that home incarceration would serve the best interests of justice." The 1997 La. Acts, No. 663 amended the article to add: "or the district attorney recommends home incarceration, or, after contradictory hearing, the court determines that home incarceration would serve the best interests of justice." Thus, unlike the former article, the Department's recommendation is no longer the sole means by which the court can impose home incarceration. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599946/ | 485 N.W.2d 82 (1992)
Martin ERICKSON d/b/a Martin's Welding, Inc., Appellee,
v.
WRIGHT WELDING SUPPLY, INC., and Cleveland Welding Supply, Inc., Defendants, and
Airco, Inc., Appellant.
No. 91-42.
Supreme Court of Iowa.
May 13, 1992.
Rehearing Denied June 18, 1992.
*83 Don N. Kersten and Mark S. Brownlee of Kersten & Carlson, Fort Dodge, for appellant.
William H. Roemerman of Crawford, Sullivan, Read, Roemerman & Brady, Cedar Rapids, for appellee.
Considered by McGIVERIN, C.J., and CARTER, NEUMAN, SNELL, and ANDREASEN, JJ.
ANDREASEN, Justice.
Our initial question in this complex products liability action is whether one of the defendants is entitled to protections provided by section 613.18 of the Iowa Code (1987). As to the plaintiff's strict liability claim, the trial court held the defendant was not entitled to the benefits of the statute because the case was filed before the effective date of the statute. We conclude the statute was applicable to the later-added defendant. Based on this conclusion, we must next determine if the defendant preserved this issue notwithstanding its failure to raise the statute as an affirmative defense in its responsive pleadings. Finding that the issue was preserved, we reverse and remand.
I. Background.
In 1986, the Iowa legislature approved "An act relating to liability," including provisions relating to products liability. 1986 Iowa Acts ch. 1211, § 32 now codified at Iowa Code § 613.18. The act is applicable to "all cases filed on or after July 1, 1986." 1986 Iowa Acts ch. 1211, § 47. The act provides immunity or limits liability of nonmanufacturers *84 in suits based upon strict liability under certain circumstances.
On February 11, 1986, a fire and explosion destroyed Martin Erickson's welding shop in Auburn, Iowa. On May 14, 1986, Erickson filed a petition against Wright Welding Supply, Inc. (Wright) alleging it was at fault for the fire and explosion. On March 30, 1987, almost ten months after the effective date of the statute, Erickson filed an amended and substituted petition, adding Airco, Inc. (Airco) and Cleveland Welding Supply, Inc. (Cleveland), as defendants. The amended petition alleged a product liability claim based upon theories of strict liability, negligence and res ipsa loquitur against all defendants.
Throughout the trial process, Airco claimed that it was entitled to statutory protections of Iowa Code section 613.18. The court denied Airco's claim, ruling that the "case" had originally been filed prior to the effective date of the statute.
At the end of the trial a directed verdict was granted to Cleveland. The case was then submitted to the jury upon theories of strict liability and negligence as against Airco and Wright. The jury returned a verdict apportioning fault as follows: Airco fifty percent, Erickson thirty-five percent, and Wright fifteen percent. The special verdict forms did not indicate the theory or theories the jury relied upon in rendering its verdict. Judgment was entered upon the verdict.
Airco filed a combined motion for judgment notwithstanding the verdict (JNOV), motion for new trial, and motion to amend judgment entry. See Iowa R.Civ.P. 242, 243, 244. In support of its motion, Airco restated its position that since it was added as a party after the effective date of Iowa Code section 613.18, it was entitled to the protections provided by the statute. The court denied the motion. Airco appealed; Wright did not appeal and is not a party here.
Today, we also decide Bingham v. Marshall & Huschart Machinery Co., 485 N.W.2d 78 (Iowa 1992), another products liability case involving Iowa Code section 613.18. We refer the reader to Bingham for general background discussion of section 613.18.
II. The "Relation Back" Doctrine.
At trial, the district court did not believe section 613.18 was applicable because Erickson had filed suit against Wright before July 1, 1986, the effective date of the Act. The court concluded the "case" had been filed in May 1986 and implicitly found that the amendment adding Airco as a defendant related back to the original May 1986 filing.
The court looked to the plain meaning of the term "case." We find the term a general term for an action, cause, or suit. Black's Law Dictionary 195 (5th ed. 1979). We think that the case against Airco was not filed until after the effective date of the statute unless, under our procedural rules, the amendment relates back to the filing of the original suit against Wright.
Generally, when we are faced with "relation back" issues, the question is whether an amendment to a petition correcting the name of a defendant or substituting a defendant is effective with relation to a statute of limitations. See, e.g., Grant v. Cedar Falls Oil Co., 480 N.W.2d 863 (Iowa 1992) (correcting name); Jacobson v. Union Story Trust & Sav. Bank, 338 N.W.2d 161 (Iowa 1983) (changing parties).
In deciding such cases, we interpret Iowa Rule of Civil Procedure 89, "Making and Construing Amendments," which provides in pertinent part:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim was asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining *85 his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
When presented with such issues, we have consistently held that the amendments do not relate back to the date of the filing of the original petition if the new party has not received notice of the institution of the action "within the period provided by law for commencing the action against him." See id. Here, however, we are not dealing with a statute of limitations issue.
Airco has advanced two alternate theories in support of its contention that Erickson's amended filing does not relate back. Airco first argues Iowa Rule of Civil Procedure 89, allowing for relation back, is not applicable to cases not involving statute of limitations problems. Since this case does not involve a statute of limitations problem, the rule is not applicable and thus there is no provision for relation back.
Under its second theory, Airco impliedly agrees rule 89 may apply to cases involving issues other than the statute of limitations. However, the argument continues that under the specific facts of this case the rule is inapplicable. Airco argues that the rule itself and the interpretations that we, and other courts interpreting similar rules, have placed on the rule, limit its applicability to "changes" in parties; not to the "addition" of parties. Thus, since Airco was "added" as a party, the rule is inapplicable and once again there is no provision for relation back.
We are not persuaded by Airco's first argument. "While `relation back' is generally applied only with reference to the statute of limitations, the concept may also find application in other contexts." 3 Moore's Federal Practice § 15.15[5] (2d ed. 1985) (and cases cited therein) [Federal Practice]; Moore, Vestal & Kurland, Moore's Manual § 9.09[9] (1977) (and cases cited therein) [Manual]. The case before us obviously presents another context in which the rule may be used.
We do, however, agree with Airco's second argument and conclude on the facts of this case that the amendment adding Airco does not relate back. Although it is apparent from our review of cases and treatises on Federal Rule of Civil Procedure 15(c) (formerly identical to Iowa rule 89) that there is split of authority whether an amendment adding a party relates back (compare Manual at § 9.09[9] ("It remains true that where the failure to name the proper defendant is not a misnomer or misdescription, adding the proper party as a defendant will not relate back to the original filing."); Marlowe v. Fisher Body, 489 F.2d 1057, 1064 (6th Cir.1973); Graves v. General Ins. Corp., 412 F.2d 583, 585 (10th Cir.1969); United States v. Western Casualty & Surety, 359 F.2d 521, 523 (6th Cir. 1966); United States v. Chapman Constr. Inc., 85 F.R.D. 255, 256 (W.D.Okla.1979); Herm v. Stafford, 455 F. Supp. 650, 654 (W.D.Ky.1978) with Federal Practice at § 15.15[4.-2] ("Although the rule refers to `an amendment changing the party' it has properly been held to sanction relation back of amendments which add or drop parties, as well as those substituting new parties for those earlier joined.") (and cases cited therein); Andujar v. Rogowski, 113 F.R.D. 151, 155 n. 5 (S.D.N.Y.1986)), we think that under the facts presented today the better rule is that the addition of another defendant does not relate back to the original filing of the suit against the first defendant.
Accordingly, since Airco was added as another defendant the amended petition bringing it into the suit does not relate back. Airco is therefore entitled to assert the protection of Iowa Code section 613.18. Having reached this conclusion, we next determine if Airco was required to raise the statute as an affirmative defense.
III. Affirmative Defense.
Airco did not plead an affirmative defense premised upon section 613.18. Erickson argues Airco cannot raise the statutory defense issue on appeal because it failed to raise it as an affirmative defense in its responsive pleadings. Airco urges *86 the issue was properly raised in its motions to dismiss, its challenges to the instructions, and in its posttrial motions.
We are guided in our analysis by the interrelationship between Iowa Rule of Civil Procedure 72: "[The answer] must state any additional facts deemed to show a defense."; Rule 101: "Any defense ... which admits the facts of the adverse pleading but seeks to avoid their legal effect, must be specially pleaded."; and Rule 104: "Every defense in law or fact to any pleading must be asserted in the pleading responsive thereto."
An affirmative defense is one which rests on facts not necessary to support the plaintiff's case. Peoples Trust & Sav. Bank v. Baird, 346 N.W.2d 1, 4 (Iowa 1984); Baker v. Beal, 225 N.W.2d 106 (Iowa 1975). Thus, any defense which would avoid liability although admitting the allegations of the petition is an affirmative defense. 1 B. Lindahl Iowa Practice § 13.39 (1991).
We do not believe the immunity from suit or limitation of liability provided by section 613.18 is an affirmative defense that must be raised in the pleadings and proven by the defendant. The plaintiff has the burden of proving the elements of strict liability. Before the adoption of section 613.18, the plaintiff need only show the defendant was a seller. Since the adoption of the statute, a plaintiff must establish the seller is not in the newly defined class of sellers immune from suit or whose liability is precluded by the statute. The plaintiff must prove the elements of its case, including proof that the seller is not immune from suit or is subject to liability.
We thus conclude Iowa Code section 613.18 is not an affirmative defense and need not be raised in responsive pleadings. Although Airco is not required to raise the statutory issue in its pleading, it is appropriate that this issue be raised by motion or pleading at the early stages of the litigation process. Parties should utilize the most efficient method to promptly establish the true facts and then present the statutory issue for court determination.
IV. Negligence Count.
Erickson argues that even if Airco is entitled to the prospective defense of section 613.18, as to the strict liability claim, the judgment entered upon the jury verdict should be affirmed because there was sufficient evidence to support a finding that Airco was negligent. Unfortunately, the court did not submit separate instructions or interrogatories to the jury. The court instructed:
The Plaintiff must prove all of the following propositions with respect to Defendant Airco, Inc.:
1. Defendant Airco, Inc., was at fault, based on negligence and/or strict liability....
In answering this question, the jury responded to an interrogatory by answering the question "was Airco, Inc., at fault," "yes."
In civil cases, "when a trial court errs in submitting even one of several theories of recovery and the jury returns only a general verdict for the plaintiff the verdict cannot stand and the defendant is entitled to a new trial." Gordon v. Noel, 356 N.W.2d 559, 565 (Iowa 1984). See also Nichols v. Westfield Indus., Ltd., 380 N.W.2d 392, 397 (Iowa 1985) (where the forms of verdict do not reveal the basis upon which the jury finds a defendant to be negligent, the submission of a specification which is without support in the record requires reversal).
Because we conclude that Airco was entitled to assert the protections of section 613.18, and also conclude the instruction submitted to the jury on strict liability was an incorrect statement of the law as to Airco's fault in strict liability, we must reverse and remand for a new trial on both the strict liability and negligence claims.
REVERSED AND REMANDED FOR NEW TRIAL. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/480696/ | 807 F.2d 997
U.S.v.Kooistra
86-3003
United States Court of Appeals,Eleventh Circuit.
11/24/86
1
N.D.Fla.; Appeal after remand 796 F.2d 1390
AFFIRMED | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/2749956/ | Fourteenth Court of Appeals
HOUSTON, TEXAS 77002
RECORDS RETENTION SCHEDULE IN CIVIL CASES
(Secretary to complete entire top portion at time opinion is delivered – have signed by authoring judge)
CASE NO.: 14-14-00637-CV
DATE CASE FILED: 8/7/2014
STYLE: In Re Sarah Booth
COUNTY: Fort Bend
DESCRIPTION/SUBJECT OF CASE: Mandamus
PANEL: SM, MWB, KPW
AUTHOR: McCally
PER CURIAM: YES
OPINION ISSUED: October 21, 2014
OPINION DECISION: DISMISSED
RECOMMEND: DESTROY: Yes HISTORICAL: No
COMMENTS:
SIGNED: Anna Etheridge (Staff Attorney)
DATE: October 21, 2014
–––––––––––––––––––––**FOR CLERK’S USE ONLY**––––––––––––––––––
MANDATE ISSUED: ___________________________________________________
LETTER TO STATE ARCHIVES (date): __________________________________
COMMENTS: ________________________________________________________
–––––––––––––––––––––**FOR CLERK’S USE ONLY**––––––––––––––––––
(Dispose of 6 years after final disposition)
DATE DESTROYED: _____________________________________________
DATE SENT TO STATE ARCHIVES FOR PERMANENT RETENTION: | 01-03-2023 | 11-08-2014 |
https://www.courtlistener.com/api/rest/v3/opinions/1599967/ | 1 So. 3d 191 (2009)
M.K.
v.
STATE.
No. 5D08-224.
District Court of Appeal of Florida, Fifth District.
January 27, 2009.
Decision without published opinion. Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599943/ | 571 So. 2d 533 (1990)
Michael L. RACKLEY, Appellant,
v.
STATE of Florida, Appellee.
No. 90-810.
District Court of Appeal of Florida, First District.
December 11, 1990.
Rehearing Denied January 18, 1991.
Michael L. Rackley, pro se.
No appearance for appellee.
SHIVERS, Chief Judge.
Appellant/defendant appeals the trial court's summary denial of his motion for post-conviction relief, filed pursuant to Fla. R.Crim.P. 3.850. We reverse the denial with regard to two of the five grounds raised in the motion, and remand for further proceedings.
On April 17, 1989, appellant entered a negotiated plea of guilty to one count of *534 sale of cocaine, the State agreeing to recommend a sentence of ten years incarceration "with credit for 95 days as an [habitual offender]." In a separate hearing conducted on April 21, 1989, the trial court found appellant to be a habitual felony offender within the meaning of section 775.084, Florida Statutes, and imposed a sentence of ten years incarceration pursuant to the negotiated plea. The written sentence entered by the court that date specifically stated "The defendant shall not be eligible for gain-time granted by the Department of Corrections except that the Department may grant up to 20 days of incentive gain-time each month as provided for in section 994.275(4)(b)."
In February of 1990, appellant filed the instant motion for post-conviction relief. According to the factual allegations contained in the motion, appellant's original assistant public defender told appellant that he was "looking at" a term of four years whether he stood trial or pled, and that the State had offered a four-year deal if he agreed to plead guilty. Seeing no reason to enter a plea, appellant rejected the offer. Approximately two weeks later, a new assistant public defender allegedly told appellant again that the most he could receive, even if he went to trial, was four years. In April of 1989, appellant learned that the State intended to seek habitual felony offender status. He later appeared before the trial court, and was informed that he was now facing a possible 30-year sentence with a 10-year mandatory minimum. Subsequently, the second assistant public defender informed him that the State had agreed to a 10-year habitual offender sentence if appellant would enter a plea of guilty. According to appellant, she then informed him that, although he would not be eligible for administrative gain-time, he would still be eligible to have one third of his sentence reduced by statutory gain-time, would be eligible for 20 days per month of incentive gain-time, and would actually serve about four years. Based on this advice, appellant accepted the State's offer and entered into the negotiated plea of guilty on April 17, 1989. On April 21, 1989, he appeared for sentencing, represented by yet a third assistant public defender. According to appellant, it was not until the April 21 sentencing hearing that the court first indicated that he would not be eligible for statutory gain-time. Appellant alleged that he asked his counsel at that point what the court meant, but that counsel merely responded "Don't worry." In May of 1989, according to appellant, he learned that he definitely would not be eligible for statutory gain-time, and that he would serve a minimum of six years.
Based on these facts, appellant alleged in his motion that trial counsel was ineffective for failing to inform him, prior to his accepting or rejecting the original four year offer, that he could be prosecuted as a habitual offender. Second, he alleged that the second assistant public defender was ineffective for failing to explain to him that the trial court would be required to provide valid reasons for departing from the four year guideline sentence. Third, appellant alleged that counsel was ineffective for failure to investigate a defense offered to her by the appellant. Fourth, he alleged that counsel was ineffective for failing to inform him that he would not receive statutory gain-time as a habitual offender. And last, he alleged that he was coerced by the trial court and that, because of the above misrepresentations by trial counsel, his plea was not voluntarily and intelligently entered.
The trial court summarily denied appellant's motion on February 14, 1990, stating:
As the attached ten-page sentence shows, the conditions of Defendant's sentence (no gain-time will be granted) were made clear to him at sentencing. When Defendant decided to plea guilty, he gave up his right to a trial. Whitlow v. State, 256 So. 2d 48 (Fla. 2d DCA 1971). Therefore, his counsel had no need to investigate his case any further. A plea form signed by a Defendant stating that his plea was freely and voluntarily entered and that he was pleased with his attorney defeats any later claims based on an involuntary plea and/or ineffective assistance of counsel. Hagans v. State, 492 So. 2d 753 (Fla. 1st DCA 1986).
*535 We affirm the trial court's denial of the ineffective assistance claims raised in grounds 1, 2, and 3, and of the coercion claim raised in ground 5. This court has held on numerous occasions that claims of either ineffective assistance of counsel or coercion are refuted by oral statements to the contrary made at a sentencing hearing, or by written statements to the contrary contained in a negotiated plea. See, e.g., Stewart v. State, 511 So. 2d 375 (Fla. 1st DCA 1987); Hagans v. State, 492 So. 2d 753 (Fla. 1st DCA 1986); Thomas v. State, 419 So. 2d 1141 (Fla. 1st DCA 1982); Loconte v. State, 382 So. 2d 26 (Fla. 1st DCA 1979). Appellant's written negotiated plea contains statements that he was not coerced into entering his guilty plea and that he was satisfied with the services of his attorney, as well as other statements which refute the claims made in grounds 1, 2, 3, and the coercion claim in ground 5.
However, we reverse the trial court's denial of ground 4, and of the allegation in ground 5 that the plea was not voluntarily entered. In ground 4, appellant alleged that his trial counsel failed to inform him that he would not be eligible for statutory gain-time as a habitual offender. In denying this ground, the trial court held that the written sentence showed that the "conditions of defendant's sentence (no gain-time will be granted) were made clear to him at sentencing." Although the written sentence does contain such a statement, appellant's negotiated plea of guilty was entered four days prior to the written sentence, and to the sentencing hearing during which appellant alleges he first learned that he would not be eligible for statutory gain-time. Under these circumstances, the written statements contained in the April 17 negotiated plea would not refute the allegation in ground 4, or the allegation of involuntariness in ground 5. We therefore reverse the denial of those two grounds, and direct the trial court to either attach portions of the files and records conclusively showing that appellant is entitled to no relief on those grounds, or to conduct further proceedings consistent with Rule 3.850.
AFFIRMED in part and REVERSED in part.
JOANOS and ZEHMER, JJ., concur. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599947/ | 571 So. 2d 828 (1990)
STATE of Louisiana, Plaintiff-Appellee,
v.
George DEARBORNE, Jr., Defendant-Appellant.
No. CR90-277.
Court of Appeal of Louisiana, Third Circuit.
December 12, 1990.
Writ Denied March 1, 1991.
Henry Lemoine, Andy VanDyle, Pineville, for defendant-appellant.
Cliff Strider, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
*829 Before DOMENGEAUX, C.J., and DOUCET and KNOLL, JJ.
KNOLL, Judge.
This appeal concerns whether the sentencing court imposed a constitutionally excessive sentence.
Defendant, George Dearborne, Jr., was indicted for second-degree murder in violation of LSA-R.S. 14:30.1 and use of a firearm in the commission of second-degree murder in violation of LSA-R.S. 14:95.2 (repealed 1988, and reenacted as LSA-C. Cr.P. Art. 893.1 et seq.). Pursuant to a plea bargain, the State amended the charge of second-degree murder to manslaughter, a violation of LSA-R.S. 14:31, and nolle prossed the charge of use of a firearm in the commission of second-degree murder. Defendant withdrew his previous plea of not guilty and entered a plea of guilty to manslaughter. Defendant was sentenced to twenty-one years at hard labor, the maximum penalty. We affirm.
FACTS
This case arose out of the killing of Alexandria City Police Officer, Luetwinta Johnson Dearborne, defendant's wife. She was found dead in the couple's bedroom with two gunshot wounds to her head. Both gunshots came from the deceased's service revolver which was found in defendant's hands upon arrival at the crime scene. Defendant originally told the police that after arriving home from work, he put a meat patty on the stove, turned on the television, and then encountered an intruder. He then told police that he struggled with the intruder which resulted in a gunshot wound to defendant's left hand when he grabbed the gun barrel. Subsequent investigation revealed the deceased's service revolver also caused defendant's injury to his left hand. Finally, defendant claimed to have chased the intruder and fired at him before calling the police. However, subsequent investigation by the Alexandria City Police Department revealed that defendant's version of the events was a physical impossibility. Moreover, discovery of additional evidence resulted in the defendant changing his statement several times to conform with newly discovered evidence.
A police report prepared by Sergeant Ray K. Delcomyn, which was enclosed with the presentence investigation report, shows many inconsistencies in defendant's statement as to what occurred. The surgeon who operated on defendant's left hand said defendant could not have been shot as he grabbed a gun barrel, because his hand was opened completely and fingers spread apart. Evidence shows the meat patty was put on the stove shortly before the police arrived because the under-surface was barely scorched upon their arrival. The blood spatters show defendant did not chase an intruder out of the house after being shot in the hand. All six cartridges had indentations on their primers, but only three went off because the hammer of the gun got caught in a pillow which was used to cover the gun, muffle the noise, and prevent blood from spattering. All of this evidence discloses a deliberate, systematic plan created by defendant to cover up the murder of his wife.
After reviewing the presentence investigation report and considering evidence presented by defendant, the sentencing court imposed twenty-one years at hard labor. In complying with LSA-C.Cr.P. Art. 894.1 the sentencing court gave reasons for its sentence. The reasons for sentence show a careful and thorough consideration of the presentence investigation, defendant's background and the nature of the crime. In affirming the sentencing choice, we incorporate and adopt the reasons as our own, which we set forth below:
"BY THE COURT: Let me say offhand that the arguments of defense counsel were persuasive, and one of the things that I certainly agree with is that my duty at this time is not one of the most pleasant aspects of this job. This is a tragic case. It has destroyed an entire family. That is a fate accomplished. There is nothing anybody can do about that at this time.
Mr. Dearborne, you were originally charged with the offense of second degree murder. The offense was reduced *830 by the Office of the District Attorney to manslaughter, to which you have pled guilty. In reaching a decision on the sentence you are about to receive I have carefully considered the information supplied to me by your attorneys and their arguments. In accordance with Article 894.1 of the Code of Criminal Procedure I have gone over the sentencing guidelines in reaching a decision on this case.
The pre-sentence report shows that you have no prior criminal history and a commendable military service, as well as a commendable record as a police officer. You have apparently been a law abiding [sic] citizen prior to the commission of this crime, and there is no doubt in this Court's mind that prison will be hardship [sic] to you. But you have admitted to the Court that you have killed your wife. Your conduct caused serious harm to the family of Mrs. Dearborne and to everyone concerned with this. Her life was taken. The Court is of the opinion that you committed a senseless and brutal act. There can be no excuses for the taking of a human life. The manner in which the offense was committed was especially heinous. You were a police officer when you committed this crime. If we cannot expect the highest standard of conduct from those empowered to enforce our laws, then there is not much hope for an orderly and law abiding [sic] community.
Again, I have carefully considered the evidence presented to me as to your good character. It is, however, my duty to this community and to this court to base my decision on what I believe to be right and just, no matter how unpleasant that duty may be. The Court is of the opinion that any lesser sentence than which I am about to impose would depreciate [sic] the seriousness of your crime. Your conduct cannot go unpunished to the full extent of the law. To do less would be making a mockery of our laws and our hope for a law abiding [sic] community. As I have said, we looked upon you as a police officer to protect us from harm. We trusted you with our lives and our property, and you betrayed this trust in the worst possible manner."
Moreover, the record shows that defendant knew that when he pleaded guilty to manslaughter, he was exposed to the maximum sentence. The following colloquy took place when defendant entered his guilty plea:
"BY THE COURT: Do you further understand, sir, that the maximum sentence which you could receive in this matter is twenty-one (21) years at hard labor with the Department of Corrections?
BY MR. DEARBORNE: Yes sir."
EXCESSIVE SENTENCE
Article I section 20 of the Louisiana Constitution prohibits the imposition of an excessive sentence. A sentence is excessive when it is grossly disproportionate to the severity of the offense or nothing more than the needless and purposeless imposition of pain and suffering. To determine whether a penalty is grossly disproportionate to the crime, the court considers the punishment and the crime in light of the harm to society and whether the penalty is so disproportionate as to shock our sense of justice. State v. Bonanno, 384 So. 2d 355 (La.1980). A sentencing court may consider the effect of a reduced penalty because of a plea bargain. State v. Lanclos, 419 So. 2d 475 (La.1982); State v. Fontenot, 532 So. 2d 412 (La.App. 3rd Cir. 1988), writ denied, 538 So. 2d 589 (La.1989).
The defense cites a line of cases which say maximum sentences are reserved for the worst kind of offender or the worst kind of crime. State v. Telsee, 425 So. 2d 1251 (La.1983). The defense also requested leniency because defendant was an Alexandria City Police Officer, had an excellent military record, and became a productive member of society even though others raised in his situation turned to crime.
The record shows that defendant, originally indicted for second-degree murder, shot his wife twice in the head at pointblank range with her own police service revolver while she lay in bed. In an effort to muffle the sound of the gunshot and/or *831 reduce the back spatter of blood, defendant fired the first shot through a pillowcase at point-blank range. Defendant pulled the trigger of the revolver three more times, but no shots rang out because the firing pin of the revolver was caught in the cloth fabric of the pillowcase. Defendant discarded the pillowcase and pulled the bedspread over the revolver and fired one more shot at point-blank range.
Moreover, in an effort to cover up the homicide, defendant shot himself in the left hand and also "planted" a loaded 22 caliber rifle in the backyard. In addition, defendant, an Alexandria police officer, with knowledge of internal procedures, techniques, etc., fabricated several stories in an effort to thwart the police investigation. All of the forensic evidence shows that defendant committed a brutal and calculated murder of his wife and mother of their minor child. He committed a very heinous offense.
The jurisprudence is clear that the maximum sentence is appropriate in cases involving the most serious violations of the offense of manslaughter. State v. Hahn, 526 So. 2d 260 (La.App. 2nd Cir.1988), writ denied, 532 So. 2d 150 (La.1988); State v. Freeman, 521 So. 2d 783 (La.App. 2nd Cir. 1988), writ denied, 538 So. 2d 586 (La.1989). Considering the nature of this crime, we find that the sentence of 21 years at hard labor is not constitutionally excessive. Further, we have considered the punishment and the crime in light of the harm to society, and we do not find the punishment so disproportionate as to shock our sense of justice.
For the foregoing reasons, the defendant's sentence is affirmed. Costs of this appeal are assessed to defendant.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1599974/ | 1 So. 3d 309 (2009)
AIRCRAFT LOGISTICS, INC., Appellant,
v.
H.E. SUTTON FORWARDING COMPANY, LLC, Appellee.
No. 3D07-3196.
District Court of Appeal of Florida, Third District.
January 21, 2009.
*310 Steven J. Cohen, Miami, for appellant.
Adorno & Yoss and Jack R. Reiter and Jordan S. Kosches, Miami, for appellee.
Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
PER CURIAM.
Plaintiff, Aircraft Logistics, Inc., appeals a final summary judgment in its negligence action against H.E. Sutton Forwarding Company, LLC. Finding no error in the trial court's conclusion that H.E. Sutton owed Aircraft no duty as a matter of law, we affirm the summary judgment.
Aircraft owned a single engine Piper Saratoga plane based at Miami Executive Airport in Opa-Locka, Florida.[1] H.E. Sutton owned a portable cattle loading ramp. In consideration for the sums H.E. Sutton spent at the airport on fuel and maintenance for the ramp, the airport housed the ramp for Sutton. It is undisputed that the ramp was in the airport's exclusive care, custody and control and was used by the airport to load and unload horses from planes.
In 2006, Aircraft's plane was tied down at the airport. In May, 2006, on the day of the incident giving rise to the lawsuit, the weather forecast was for showers. However, at one point a sudden thunderstorm erupted causing micro-bursts of wind of over sixty miles per hour. There were no storm warnings in effect at the time. The winds were of such intensity that a hangar roof was torn off, and a Boeing 737 jumbo jet and a fully loaded G4 jet were spun around (over 180 degrees). The gusts lifted the ramp into Aircraft's plane. The plane was a total loss.
Aircraft initially sued H.E. Sutton for negligence to recover the value of the plane. Aircraft asserted that H.E. Sutton had failed to properly secure the ramp, resulting in the damages to Aircraft's plane. H.E. Sutton asserted that the ramp was in the airport's sole care, custody or control at the time of the incident. Aircraft then amended its complaint to *311 include the airport as a defendant and asserted that the ramp was in the airport's control. Aircraft settled with the airport, and a stipulated dismissal with prejudice was entered below.
In its answers to interrogatories, H.E. Sutton stated that there were means of securing the ramp under normal conditions, but that there was no way to secure the ramp under the conditions that day. H.E. Sutton filed a summary judgment motion arguing that Aircraft had not established Sutton owed it any duty, and that the damages were the result of an Act of God. Aircraft responded asserting that no damages would have resulted had the ramp been properly secured, regardless of the weather conditions. The trial court granted H.E. Sutton's motion, concluding that H.E. Sutton owed Aircraft no duty. Aircraft appeals.
The trial court properly found, as a matter of law, that H.E. Sutton owed Aircraft no duty under the facts of this case. "[D]uty exists as a matter of law and is not a factual question for the jury to decide." McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla.1992). McCain is the seminal case on the analysis of foreseeability in determining the existence of a legal duty as an element of negligence. See Aguila v. Hilton, Inc., 878 So. 2d 392, 395 (Fla. 1st DCA 2004). Since McCain, other courts have also held that foreseeability as it relates to duty is a question of law. Williams v. Davis, 974 So. 2d 1052, 1056 n. 2 (Fla.2007); Fla. Dept. of Corrections v. Abril, 969 So. 2d 201, 205 (Fla. 2007); Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1110 (Fla.2005); Whitt v. Silverman, 788 So. 2d 210, 217 (Fla.2001); Siegel v. Husak, 943 So. 2d 209, 214 (Fla. 3d DCA 2006); Paszamant v. Retirement Accounts, Inc., 776 So. 2d 1049, 1053 (Fla. 5th DCA 2001). On this basis, the trial court properly considered the question on summary judgment.
McCain explained that "[t]he duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader `zone of risk' that poses a general threat of harm to others." McCain, 593 So.2d at 502. McCain implies that "the defendant must be in a position to control the risk." Aguila, 878 So.2d at 392. Nothing in this record, in which the material facts are undisputed, demonstrates that H.E. Sutton was in a position to control the risk, or that its conduct created a broader zone of risk toward Aircraft's property.
There was an agreement between the airport and H.E. Sutton that the airport would use the ramp and house it, alleviating H.E. Sutton of the burden of constantly transporting the ramp. On the day of the storm, H.E. Sutton had not been to the airport in over a month. The airport was using the ramp. The ramp was in the airport's sole care, custody and control.
Additionally, nothing was advanced to refute H.E. Sutton's assertion that under the conditions that day the ramp could not have been secured so as to avoid damage. The fact that harm may occur does not automatically create a legal duty. Aguila, 878 So.2d at 396.
Even ship owners are not subject to automatic liability if their vessels collide with other ships or structures. The issue in Burklow & Associates, Inc. v. Belcher, 719 So. 2d 31 (Fla. 1st DCA 1998), was whether a boat owner had a duty to remove a boat from a dock in the period prior to issuance of a hurricane watch or warning in the face of an anticipated, forecast storm to avoid damage to other property. The court found no such duty imposed by statute or caselaw. Id. at 36.
*312 There is simply no basis in law for imposing a duty to secure property on the owner of the property in the absence of some anticipated need for doing so. Moreover, where (as here) the property owner relinquished control of the property to an independent entity, the property owner cannot be said to have a duty to secure that property. Even in the context of a dangerous instrumentality, which the ramp is not, courts have crafted an exception to liability when the vehicle is not in the owner's control. Once the owner relinquishes control to an independent contractor, such as a valet parking attendant or a repair person, the owner is not liable for possible negligent misuse of the vehicle. Castillo v. Bickley, 363 So. 2d 792 (Fla. 1978); Baptista v. Enter. Leasing Co., 707 So. 2d 397 (Fla. 3d DCA 1998); Fahey v. Raftery, 353 So. 2d 903 (Fla. 4th DCA 1977). Such a relinquishment of control occurred here.
Finding no basis to reverse the court conclusion that no duty was owed as a matter of law, the summary judgment is affirmed.
Affirmed.
SCHWARTZ, Senior Judge (specially concurring).
I agree to affirmance but only because the appellee had surrendered complete control of the ramp to the airport and thus no longer had a duty to maintain it properly or to safeguard surrounding aircraft from its possible dangers. As the court correctly states, no such obligation arises from the mere ownership of a non-dangerous instrumentality.[2]
NOTES
[1] The airport is operated by Miami Executive Airport, Inc., a co-defendant below.
[2] I do not agree, however, with the trial judge that the fact that the wind arose suddenly and was unusually powerful for the season, rendered it an intervening "Act of God" which was the sole legal cause of the accident. Because one of the very purposes of properly securing the ramp was to prevent its being moved by any wind and the fact is that the plane, which was properly moored, did not move, but the ramp, which wasn't, did I believe that foreseeability and legal causation were jury questions. The controlling rule to this effect is stated in K-Mart Enterprises of Florida, Inc. v. Keller, 439 So. 2d 283, 286 (Fla. 3d DCA 1983): "[A] tortfeasor need not be able to foresee as it is necessarily impossible to foresee the exact concatenation of events which has in fact ended in damage to another. It is required only that the general `type of result,' which has occurred fall within the scope of the danger or "risk" created by the negligent act in question." (citations omitted) (emphasis added). See Smith v. Grove Apartments, LLC, 976 So. 2d 582, 587-88 (Fla. 3d DCA 2007). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1551086/ | 908 A.2d 1247 (2006)
171 Md. App. 209
William KNOCHE
v.
STATE of Maryland.
No. 574, September Term, 2005.
Court of Special Appeals of Maryland.
October 11, 2006.
*1249 Frank E. Trock, Baltimore, for appellant.
Gerald Langbaum (John K. Barry, J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.
Panel MURPHY, C.J., EYLER, JAMES R. and Kenney, JJ.
KENNEY, J.
William Knoche appeals the Circuit Court for Baltimore County's grant of a declaratory judgment upholding the constitutionality of Maryland Code (1981, 2005 Repl.Vol.), § 1-213 of the Health Occupation Article ("Health Occ.").[1] Knoche poses two questions for our review,[2] which we have reworded and recast as follows:
I. Was Knoche denied procedural due process under Health Occ. § 1-213 because he was not provided notice and hearing prior to the non-renewal of his State issued dental license?
II. Was Knoche denied substantive due process under Health Occ. § 1-213 because the statute does not rationally relate to the State's interest in assuring quality dental care of its citizens?
III. Does the retroactive application of Health Occ. § 1-213, which requires, among other things, that an undisputed income tax obligation be paid before a dental license will be renewed, constitute an ex post facto law in violation of the Constitution of the United States and Article 17 of the Maryland Declaration of Rights?
For the following reasons, we answer each of those questions in the negative, and shall affirm the judgment of the circuit court.
FACTUAL AND PROCEDURAL HISTORY
The facts are undisputed. Dr. William Knoche, a practicing dentist, has not filed a Maryland income tax return since 1980. On September 4, 1990, the Comptroller of the Treasury, Income Tax Division, assessed Knoche's tax liability, including interest *1250 and penalties, for calendar years 1980, 1981, and 1982 at $14,313.68, $19,403.08, and $21,937.44, respectively. On February 14, 1991, the Income Tax Division issued Knoche assessments for calendar years 1983-1989. The assessments, including interest and penalties, ranged from $17,359.43 for the 1983 calendar year to $14,482.56 for the 1989 calendar year.
The assessment notices indicated that the assessments would become final within thirty days unless Knoche filed either a proper tax return or an appeal to the Maryland Tax Court. Knoche neither filed returns for the years 1980-1989 nor appealed the assessments to the Maryland Tax Court. By operation of Maryland Code (1988), § 13-805 of the Tax General Article ("Tax-Gen."), Knoche's unpaid tax assessment constituted a lien in favor of the State. Pursuant to Tax-Gen. § 13-807, the Income Tax Division filed the lien with the Circuit Court for Baltimore County, which entered the lien in the amount of $166,591.91 in the judgment docket of the court on April 20, 1992.
In 2003, the General Assembly enacted H.B. 935, the Budget Reconciliation and Financing Act of 2003. Its purpose, among others, was to ensure tax compliance by not renewing certain State licenses if the license holders had not paid their taxes. See 2003 Laws of Maryland ch. 203 § 24. This requirement applied to licenses issued under Maryland Code § 1-204 of the Business Occupations and Professions Article, § 1-210 of the Business Regulation Article, § 1-203 of the Environment Article, § 1-213 of the Health Occupations Article, § 1-402 of the Natural Resources Article, § 1-205 of the Tax-General Article, and § 1-103 of the Transportation Article. The law went into effect July 1, 2003.
Licenses subject to Health Occ. § 1-213 include dental licences. Relevant to this appeal, Health Occ. § 1-213 provides:
(a) In general.A license or permit is considered renewed for purposes of this section if the license or permit issued by a unit of State government to a person for the period immediately following a period for which the person previously possessed the same or a substantially similar license.
(b) Verification of payment of taxes or unemployment insurance contributions.Before any license or permit may be renewed under this article, the issuing authority shall verify through the office of the Comptroller that the applicant has paid all undisputed taxes and unemployment insurance contributions payable to the Comptroller or the Secretary of Labor, Licensing, and Regulation or that the applicant has provided for payment in a manner satisfactory to the unit responsible for collection.
In July 2004, Knoche received a letter from the Maryland State Board of Dental Examiners ("the Board"), indicating that his dental license would not be renewed because of his outstanding tax liability. In August 2004, Knoche received a cease and desist order from the Board, precluding him from practicing dentistry in Maryland until the Comptroller certified that he had paid all outstanding taxes or had otherwise provided for payment in a satisfactory manner. On August 4, 2004, Knoche requested a hearing from the Comptroller. The Comptroller responded on August 11, 2004, that no hearing process was available.
On November 19, 2004, Knoche filed a complaint for declaratory judgment in the Circuit Court for Baltimore County, asserting that H.B. 935, codified at Health Occ. § 1-213,[3] was unconstitutional on its *1251 face and as applied to him because he was denied "the right to work in his chosen profession" without being afforded a hearing. The State filed a motion to dismiss, or in the alternative, a motion for summary judgment on January 3, 2005. Among other things, the State maintained that Health Occ. § 1-234 constituted a permissible exercise of the State's right to protect and preserve the public health. It stated that the statute did not violate due process because anyone whose license was subject to non-renewal, including Knoche, was afforded the opportunity to dispute his or her tax obligations in the Maryland Tax Court.
Attached as exhibits to the State's motion were the affidavits of Patricia Baker, assistant manager of the Annapolis Collection Office of the Compliance Division of the Comptroller, and John Hearn, Deputy Clerk of the Maryland Tax Court. In her affidavit, Baker explained that Knoche had not filed a tax return since at least 1980, and that, despite being assessed penalties and interest for tax years 1980-1989, he had not made any payments on his assessed tax liability. In his affidavit, Hearn stated that he had reviewed the docket index and determined that Knoche had not appealed his tax assessments to the Tax Court. Therefore, the State maintained that appellant had effectively waived any right he had to an administrative hearing.
On January 28, 2005, Knoche filed an opposition to the State's motion. In addition, Knoche filed a cross-motion for summary judgment.
Following argument on the cross-motions, the circuit court granted summary judgment in favor of the State. On April 11, 2005, the court issued a declaratory judgment, upholding the constitutionality of Health Occ. § 1-213, "on its face and as applied." This timely appeal followed.
STANDARD OF REVIEW
Under Maryland Rule 2-501(f), a court "shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." "The trial court will not determine any disputed facts, but rather makes a ruling as a matter of law. The standard of appellate review, therefore, is whether the trial court was legally correct." Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 114, 753 A.2d 41 (2000). We review "a trial court's grant of a motion for summary judgment de novo." Remsburg v. Montgomery, 376 Md. 568, 579, 831 A.2d 18 (2003). See also Todd v. Mass Trans. Admin., 373 Md. 149, 154, 816 A.2d 930 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359, 800 A.2d 707 (2002); Schmerling v. Injured Workers' Ins. Fund, 368 Md. 434, 443, 795 A.2d 715 (2002).
In our review, we determine first whether a genuine dispute of material fact exists, "and only where such dispute is absent will we proceed to review determinations of law." Remsburg, 376 Md. at 579, 831 A.2d 18. "The facts properly before the court, and any reasonable inferences that may be drawn from them," are construed "in the light most favorable to the non-moving party." Id. at 579-80, 831 A.2d 18. "We generally `uphold the grant of a summary judgment only on the grounds relied on by the trial court.'" Nationwide Mut. Ins. Co. v. Wilson, 167 Md.App. 527, 535, 893 A.2d 1177, cert. granted, 393 Md. 242, 900 A.2d 749 (2006) quoting Mitchell v. Baltimore Sun Co., 164 Md.App. 497, 508, 883 A.2d 1008 (2005) (quoting Ashton v. Brown, 339 Md. 70, 80, 660 A.2d 447 (1995)).
*1252 DISCUSSION
I. Procedural Due Process
Knoche contends that the circuit court erred in concluding that Health Occ. § 1-213 does not violate constitutionally protected rights to procedural due process, both facially and as applied, because it does not provide for a hearing before an individual may be deprived of his or her professional license.
The Fourteenth Amendment provides, in pertinent part, "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV § 1. Likewise, Article 24 of the Maryland Declaration of Rights provides that "no man ought to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed, or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by the judgment of his peers, or by the Law of the land." See also Pitsenberger v. Pitsenberger, 287 Md. 20, 27, 410 A.2d 1052 (1980) ("[I]t should be pointed out that Article 24 of the Maryland Declaration of Rights and the Fourteenth Amendment of the United States Constitution have the same meaning, and that Supreme Court interpretations of the Fourteenth Amendment function as authority for interpretation of Article 24.").
It is well settled that, in order to satisfy the requirements of procedural due process, the State must provide notice and a hearing prior to depriving a person of life, liberty, or property. Dusenbery v. United States, 534 U.S. 161, 167, 122 S. Ct. 694, 151 L. Ed. 2d 597 (2002) ("[W]e have determined that individuals whose property interests are at stake are entitled to `notice and an opportunity to be heard.'") (quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 48, 114 S. Ct. 492, 126 L. Ed. 2d 490 (1993)).
The State does not dispute that Health Occ. § 1-213 does not provide for a hearing; that Knoche would otherwise be entitled to a hearing before the Board prior to his license being revoked; or that a license to practice dentistry, like a license to practice medicine, is a property interest protected by the due process clause of the Fourteenth Amendment and Article 24. Rather, the State claims that Knoche was provided with notice and an opportunity to be heard in the Maryland Tax Court in regard to his tax liability. Because Health Occ. § 1-213 only applies where the tax and the unemployment insurance contribution liabilities are "undisputed," and Knoche did not dispute his tax obligation in the Tax Court, the State contends that Knoche was not deprived of his rights to procedural due process. We agree.
Maryland Code (1988, 2004 Repl.Vol.), § 13-508 of the Tax General Article provides that, when a person or governmental agency disputes a tax assessment, they may file, within thirty days of the issuance of the assessment, an application of revision of the assessment with the "tax collector,"[4] or if the assessment is paid, a claim for refund. When a person or governmental agency does not dispute the assessment or seek a refund within thirty days, the assessment becomes final. Tax-Gen. § 13-508(b). If an application for revision or a claim for refund is filed, however, the *1253 Comptroller or an employee of that office must "hold an informal hearing" on the application or claim. Following the hearing, the Comptroller or an employee of that office must act on the application or claim, which may include assessing additional taxes, penalties, and interest. Tax-Gen. § 13-508(c). A notice of final determination is then mailed to the party. Id.
Where the person or governmental agency is aggrieved by the action in the final notice, within thirty days of the mailing of the final notice, they may appeal to the Maryland Tax Court, "an independent administrative unit of the State government." Tax-Gen. § 3-102; § 13-510. Proceedings in the Tax Court are governed by Tax-Gen. §§ 13-514 to 13-529, which provide a party with the procedural rights to a prompt hearing, to appear before the Tax Court pro se or represented by counsel, to introduce evidence, subpoena witnesses, and conduct depositions, and to submit certain fact issues for resolution by a jury. If a party is aggrieved by an order of the Tax Court, the party may then seek judicial review in an appropriate circuit court. Tax-Gen. § 13-532.
Health Occ. § 1-213 only applies in the case of an "undisputed" tax liability. Therefore, the statute only applies to those licensees who have either exhausted their procedural rights and lost or waived their rights to a hearing to contest their tax liability. Because the operative fact is an undisputed tax liability, any party aggrieved by the non-renewal provisions of Health Occ. § 1-213 will have been provided notice and an opportunity for a hearing to dispute liability. No additional hearing is necessary. Moreover, to provide for a hearing before the State Board of Dental Examiners would necessarily imply that the Board could somehow adjudicate a tax dispute or decide to grant a license renewal despite the undisputed outstanding tax liability, which Health Occ. § 1-213 specifically prohibits.
Here, Knoche does not dispute that he has not filed an income tax return since 1980. In fact, in his brief, Knoche noted that his current tax obligation, including interest and penalties, for the decade of the 1980s likely exceeds $280,000. Nor does he dispute that he was provided notice and an opportunity to dispute in the Maryland Tax Court his tax liability for each of the years he failed to pay taxes. The statute affords all the process due to a licensee.
II. Substantive Due Process
Knoche contends that the non-renewal of his dental license effectively constitutes a revocation or suspension, which, under Health Occ. § 4-318, entitled him to a hearing before the Board concerning his competence as a dentist, and his good moral character and sound judgment. In other words, he claims that Health Occ. § 1-213 denies him substantive due process because the statute is not rationally related to the State's legitimate interest in assuring quality dental care to its citizenry.
Health Occ. § 1-213 does not apply to a suspect classification and does not impinge upon a fundamental right. Therefore, it will be upheld so long as it is rationally related to a legitimate government purposes. See Hunter v. State, 110 Md.App. 144, 161, 676 A.2d 968 (1996) (concluding that the practice of midwifery, like the practice of medicine, is not a fundamental right and therefore, subject to rational basis review). We will uphold a statute so long as it is rationally related to any legitimate state interest. See F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993) (stating that "those attacking the rationality of the legislative classification *1254 have the burden `to negative every conceivable basis which might support it'" and "we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature") (quoting Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S. Ct. 1001, 35 L. Ed. 2d 351 (1973)).
The General Assembly enacted H.B. 935 for the purposes of collecting undisputed income tax and unemployment contributions. The act was entitled "The Budget Reconciliation and Financing Act of 2003" and sought to "increas[e] various revenues, provid[e] for transfers to the general fund, and includ[ed] other miscellaneous provisions designed to mitigate the fiscal condition of the State." Maryland Department of Legislative Services, 90 Day Report, 2003 Session, Part B. The legislative history of H.B. 935 indicates that the General Assembly expected the "tax clearance for licenses" provisions to result in the collection of $10 million in past due taxes in 2004, 2005, and 2006, and $5 million in 2007 and 2008, respectively. Id.
The State's interest in collecting public revenues is clearly a legitimate interest, and the statute is rationally related to achieving that objective. See Rucker v. Comptroller of Treasury, 315 Md. 559, 567, 555 A.2d 1060 (1989) (upholding a statute, which permitted delinquent corporate taxes to be assessed against corporate officers). Requiring individuals licensed by the State to comply with the State's tax laws before renewing a license also serves the purpose of ensuring that those licensed by the State are fit to hold such licenses. Although Health Occ. § 4-315 requires a hearing before a dental license may be revoked, denied, or suspended for thirty-one enumerated reasons, including instances where the applicant or licensee "is disciplined by a court of any state or county for an act that would be grounds for disciplinary action under the [State Board of Dental Examiner's] disciplinary statutes" or "[i]s convicted of or pleads guilty or nolo contendere to a felony or to a crime involving moral turpitude," the General Assembly could have rationally determined that the failure to pay an undisputed income tax obligation renders the licensee unfit to practice dentistry. Other states have upheld similar statutes on both grounds. See, e.g., Walden v. Bd. of Registration in Nursing, 395 Mass. 263, 479 N.E.2d 665, 670-71 (1985) (finding that a Massachusetts statute requiring all applicants for a professional license to file a sworn statement, indicating compliance with state tax laws, was rationally related to legitimate government purposes of "raising revenue and assuring that tax returns are filed" and that the failure to pay such taxes "could be treated rationally as an anti-social act demonstrating unfitness to carry on a responsible profession in which adherence to other laws is required").
III. Ex Post Facto
Knoche also claims that Health Occ. § 1-213, as applied, constitutes an ex post facto law because it provides for a retroactive punishment, namely the non-renewal of his license, which was not an applicable sanction for failure to file his tax returns at the time of his filing omission.
Article I, Section 10 of the Constitution of the United States provides, in relevant part, "No State shall . . . pass any . . . ex post facto Law." Accord Maryland Declaration of Rights Article 17. It is well settled that the prohibition of ex post facto laws "`applies only to penal statutes which disadvantage the offender affected by them.'" Collins v. Youngblood, 497 U.S. 37, 41, 110 S. Ct. 2715, 111 L. Ed. 2d 30 (1990) (quoting Calder v. Bull, 3 Dall. 386, 390-92, 1 L. Ed. 648 (1798)). "This includes *1255 `[e]very law that changes the punishment and inflicts a greater punishment, than the law annexed to the crime when committed.'" Demby v. Secretary, Dep't of Public Safety & Corr. Servs., 163 Md.App. 47, 61, 877 A.2d 187 (2005) (quoting Collins, 497 U.S. at 42, 110 S. Ct. 2715 (quoting 3 Dall. 386, 390, 1 L. Ed. 648 (1798))).
Knoche did not file tax returns between 1980 and 1989. During those years, the willful failure to file a State income tax return constituted a misdemeanor, punishable "by a fine not exceeding $500 or imprisonment not exceeding 6 months or both." Tax-Gen. § 13-1001; Md.Code of 1957 (1969 Repl.Vol.), art. 81 § 369. The State characterizes the statute as "civil" and "non-penal" in nature. On the other hand, the consequence of willfully failing to file income taxes is potentially enhanced if the resulting tax liability is not satisfied. Nevertheless, a person need not be convicted of the willful failure to file a tax return to risk forfeiture of a dental license under Health Occ. § 1-213 for failure to pay taxes. In fact, the statute does not purport to impose a sanction for the failure to file tax returns, but rather requires that a person seeking license renewal pay any undisputed taxes due at the time of the renewal. Even though Knoche may have committed a criminal act in failing to file his taxes, that is not the reason that his license is not being renewed. He can avoid the application of Health Occ. § 1-213 by simply satisfying, in a manner satisfactory to the unit responsible for collection, a tax liability that can no longer be disputed as a matter of law.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
NOTES
[1] Our opinion was filed on August 4, 2006. Appellee filed a request to publish the opinion and a Motion for Reconsideration of Award of Costs, both of which are hereby granted.
[2] Knoche presented the following:
1. Whether the trial judge committed reversible error by finding that Health Occupations Article 1-213 (as enacted by House Bill 935) which provides that a license to practice dentistry may not be renewed unless the applicant has paid all "undisputed taxes" or provided for payment in a manner satisfactorily to the State of Maryland is constitutional on its face and that its provisions do not deny due process of law to [Knoche.]
2. Whether the trial judge committed reversible error by finding that Health Occupations Article § 1-213 (as enacted by House Bill 935) which provides that a license to practice dentistry may not be renewed unless the applicant has paid all "undisputed taxes" or provided for payment in a manner satisfactorily to the State of Maryland is constitutional as applied to [Knoche] and that its provisions does not deny due process of law to [Knoche.]
[3] In his complaint for declaratory judgment and memorandum in support thereof, Knoche referenced § 1-204 of the Business Occupations and Professions Article.
[4] Tax General § 13-101(c) defines "tax collector" as follows:
(1) "Tax collector" means the person or governmental unit responsible for collecting a tax:
(2) "Tax collector" includes:
(i) the Comptroller;
(ii) the Department, with respect to:
1. the financial institution franchise tax; and
2. the public service company franchise tax; and
(iii) the register of wills, with respect to the inheritance tax. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/240132/ | 236 F.2d 24
110 U.S.P.Q. 164
Marion B. ROBINSON, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.
No. 302, Docket 23686.
United States Court of Appeals Second Circuit.
Argued April 9, 1956.Decided July 12, 1956.
Timen & Waters, New York City (Otis Mark Waters, W. Philip Van Kirk, New York City, of counsel on the brief), for plaintiff-appellant.
Leonard P. Moore, U.S. Atty., E.D. New York, Brooklyn, N.Y. (Lloyd H. Baker, Samuel V. Greenberg, Robert J. Lederman, Asst, U.S. Atty., E.D. New York, Brooklyn, N.Y., of counsel on the brief), for defendant-appellee.
Before CLARK, Chief Judge, and HINCKS and LUMBARD, Circuit Judges.
LUMBARD, Circuit Judge.
1
The question for decision is whether a claimant whose invention was used by the Government during a period when issuance of the patent was delayed under an order of secrecy may sue in the District Court under 35 U.S.C.A. § 183 for such use and for damages resulting from the secrecy order even though the Navy Department denied in toto the claim for compensation. Judge Byers dismissed the complaint for lack of jurisdiction. We hold that suit was properly brought in the District Court and accordingly reverse.
2
The plaintiff alleged in his amended complaint the following facts: His patent application No. 418497 was allowed for issuance of letters patent by Notice of Allowance dated October 21, 1949. Thereafter this application, together with all plaintiff's applications having common subject matter, was placed under a Secrecy Order dated June 21, 1950 and his patent was withheld under that order.1
3
The complaint alleged further that the plaintiff applied to the Secretary of War, the Secretary of the Navy, and the Secretary of Defense for compensation for the damage caused by the secrecy order and for the use of his inventions by the Government. It alleged finally that the Department of the Navy, Office of Naval Research 'failed to settle the claim of plaintiff for compensation.'
4
The answer admits that the plaintiff filed certain patent applications and that they were subjected to secrecy orders; it also admits that on or about April 1, 1952 the Department of the Navy, Office of Naval Research 'denied plaintiff's claim for compensation.' The answer denied further that there had been any use of plaintiff's inventions by the United States and alleged the invalidity of the patents.
5
The plaintiff brought this action under 35 U.S.C.A. § 183.2 The Government contends that under that section it is a prerequisite to jurisdiction in the District Court that the head of a department or agency had made an award to the claimant in some amount. This argument is based on that portion of § 183 which reads:
6
'A claimant may bring suit against the United States in the Court of Claims or in the District Court of the United States for the district in which such claimant is a resident for an amount which when added to the award shall constitute just compensation for the damage and/or use of the invention by the Government.' (Emphasis supplied.)
7
Judge Byers dismissed the complaint on the basis of this argument. In a similar case brought in the Southern District of New York, Judge Dawson denied the Government's motion to dismiss the complaint even though the appropriate government department had taken no action on an application for an award of damages. Judge Dawson pointed out that a contrary holding would deny the claimant his day in court. Farrand Optical Co. v. United States, D.C.1955, 133 F. Supp. 555.
8
Section 183 of Title 35 was enacted on July 19, 1952 as a part of the general revision of that title. 66 Stat. 806. It was derived substantially unchanged from former § 153 which was enacted on February 1, 1952. 66 Stat. 4. Prior to February 1, 1952 the applicable provision was 35 U.S.C.A. § 42 which derived from an act of October 6, 1917, 40 Stat. 394, 65th Cong., 1st Sess. as amended by 54 Stat. 710, 76th Cong. 3rd Sess. 1940. 35 U.S.C.A. § 42 provided only for suit in the Court of Claims and read in pertinent part as follows:
9
'When an applicant whose patent is withheld as herein provided and who faithfully obeys the order of the Commissioner of Patents above referred to shall tender his invention to the Government of the United States for its use, he shall, if and when he ultimately receives a patent, have the right to sue for compensation in the Court of Claims, such right to compensation to begin from the date of the use of the invention by the Government: Provided, That the Secretary of War or the Secretary of the Navy or the chief officer of any established defense agency of the United States, as the case may be, is authorized to enter into an agreement with the said applicant in full settlement and compromise for the damage accruing to him by reason of the order of secrecy, and for the use of the invention by the Government.'
10
The secrecy order in the instant case was issued on June 21, 1950 and rescinded on July 25, 1950. Thus it was issued under the old § 42 rather than under the 1952 law. The Act of February 1, 1952, however, in providing for the repeal of the older provision specified that
11
'such repeal shall not affect any rights or liabilities existing on the date of approval of this Act. * * * A claim arising under the repealed Acts and unsettled as of the defective date of this Act, may be presented and determined pursuant to the provisions of this Act.'Thus a person injured by an order issued under the old Act is entitled to the full benefit of the remedial procedures of the currently applicable provision. We turn then to the question of what are the prerequisites to jurisdiction in the District Courts under 35 U.S.C.A. § 183.
12
This section appears to set up alternative procedure by which a claimant may secure compensation for injury resulting from a secrecy order. One procedure is to wait until the issuance of a patent and then sue in the Court of Claims. This remedy is, however, limited to those claimants 'who did not apply for compensation' to the head of the appropriate department or agency. The other procedure is to apply to the department or agency; and if an agreeable settlement is not arrived at, to sue in the District Court or the Court of Claims 'for an amount which when added to the award shall constitute just compensation'. The Government contends that there is a gap in these procedures and that a person who applies to the department or agency and is awarded nothing may not sue under § 183 either in the Court of Claims or in the District Court. It would indeed be anomalous if in such a situation a claimant had no judicial remedy. The Government argues, however, that such a claimant may nevertheless sue in the Court of Claims under 28 U.S.C.A. § 1498 and that this is the proper remedy for the claimant in the instant case.
13
With this contention of the Government we are unable to agree. First of all, there is considerable doubt that the plaintiff has any remedy under § 1498. That section provides a remedy for the recovery of compensation for use by the United States of an invention 'described in and covered by a patent'. Thus it has been held that a patentee may not recover under that section for use by the Government prior to the issuance of a patent. Gearon v. United States, Ct.Cl. 1953, 115 F. Supp. 910 certiorari denied 1955, 348 U.S. 942, 75 S. Ct. 364, 99 L. Ed. 737. The remedy of § 183, on the other hand, provides compensation for use by the Government in a period during which a patent has been withheld because of a secrecy order. For this period a patentee could not recover under § 1498. Moreover, § 183 provides not only for the recovery of compensation for the Government's use of an invention, but also for 'the damage caused by the order of secrecy'. There is no other statutory provision which gives a remedy for the recovery of such damages. If a patentee cannot sue under § 183 he is without a remedy to redress these injuries.
14
Section 183 apparently sets out a comprehensive scheme for providing compensation in all cases where secrecy orders are issued. There is no indication that Congress intended that this scheme should be supplemented by any other statutory provision such as § 1498. There is certainly no indication in the statutory language that Congress intended that some persons should be deprived of a judicial remedy if they should first seek compensation from the appropriate executive agency. The remedy which may be pursued only in the Court of Claims is expressly restricted to claimants 'who did not apply for compensation to the appropriate agency head.' We think it reasonable to infer that the alternative remedy which the claimant may pursue either in the District Court or in the Court of Claims is available to all those who did so apply for compensation, whether or not an award was made in their favor. The statutory language relied upon by the Government requires no contrary conclusion. The statute merely says that 'A claimant may bring suit against the United States in the Court of Claims or in the District Court * * * for an amount which when added to the award shall constitute just compensation'. This does not purport to state a jurisdictional requirement that an award in some amount must first be made. It merely requires that the appropriate department must have been given an opportunity to act on the application, and defines the measure of recovery in the Court of Claims or in the District Court. If the agency head determines that the secrecy order has resulted in no damage, or if for some other reason he declines to make a settlement, then the award is zero and the patentee may recover under this section the full compensation which the court determines to be just.
15
Furthermore a holding that claimants like Robinson are barred from the District Court if they first apply to a government department which awards them nothing would defeat an important and salutary purpose of the statute which is to encourage applications to the departments concerned so that matters might there be settled or payments made on account where the amount of damages is not agreed upon. Were we to affirm there would be little incentive for an applicant to apply to the appropriate agency and run the risk that his application would deprive him of access to the courts.
16
The legislative history of § 183 shows that Congress intended that every claimant should be able to bring suit in the District Court if he so desired. The words 'or in the District Court of the United States for the district in which such claimant is a resident' were added by an amendment on the floor of the Senate. Senator McCarren proposed the amendment and it was adopted without any discussion other than his remarks in explanation and support of the addition. The justification he advanced in support of the amendment was the inconvenience to claimants in coming to Washington to press their suits in the Court of Claims. Senator McCarren remarked that 'force was lent to this argument' by the fact that the then recently passed Mutual Security Act of 1951 preserved the right of a claimant to sue in his own federal District Court. Senator McCarren also said that 'the purpose of (the amendment) is to give the same right under this bill that is given under the Mutual Security Act of 1951, namely the right of a claimant to bring his action in the Court of Claims or in the United States District Court.' 97 Cong.Rec. 13670 (82nd Cong., 1st Sess.1951).
17
The section of the Mutual Security Act of 1951 to which Senator McCarren referred was § 517, 65 Stat. 382-83. This section was re-enacted without any significant change by § 506 of the Mutual Security Act of 1954, 68 Stat. 852, and is now contained in 22 U.S.C.A. § 1758. This section provides a remedy whereby a patentee may recover compensation for damages resulting from the Government's use of an invention or disclosure of information about an invention in connection with the Mutual Security Program. Although § 1758(c) provides that the head of the appropriate executive agency may 'enter into an agreement with the claimant, in full settlement and compromise of any claim', § 1758(b) makes it clear that in all cases the claimant may sue for compensation either in the District Court or in the Court of Claims. His right to sue in the District Court is in no way conditioned on the recognition of the validity of his claim by the appropriate agency head. Representative Rogers (of Colorado), in explaining the Senate's amendment before the House, repeated the analogy of the Mutual Security Act. 98 Cong.Rec. 459-60 (82nd Cong. 2nd Sess.1952). We think that this history is persuasive evidence that Congress intended to permit every claimant under § 183 to pursue his remedy in the appropriate District Court, irrespective of the action taken by the agency which issued the secrecy order.
18
Since the jurisdiction of the District Court is supported both by the language of § 183 and by the extrinsic evidence of the intent of Congress, the judgment dismissing the complaint for lack of jurisdiction must be reversed.
1
The complaint also contains allegations relating to previous patent applications which were subjected to a secrecy order in 1943, but the complaint did not allege that these applications were in condition for allowance while that order was in effect and the appellant is apparently not pressing on this appeal his claims arising out of the 1943 order
2
35 U.S.C.A. § 183 reads as follows:
'Right to compensation
'An applicant, his successors, assigns, or legal representatives, whose patent is withheld as herein provided, shall have the right, beginning at the date the applicant is notified that, except for such order, his application is otherwise in condition for allowance, or February 1, 1952, whichever is later, and ending six years after a patent is issued thereon, to apply to the head of any department or agency who caused the order to be issued for compensation for the damage caused by the order of secrecy and/or for the use of the invention by the Government, resulting from his disclosure. The right to compensation for use shall begin on the date of the first use of the invention by the Government. The head of the department or agency is authorized, upon the presentation of a claim, to enter into an agreement with the applicant, his successors, assigns, or legal representatives, in full settlement for the damage and/or use. This settlement agreement shall be conclusive for all purposes notwithstanding any other provision of law to the contrary. If full settlement of the claim cannot be effected, the head of the department or agency may award and pay to such applicant, his successors, assigns, or legal representatives, a sum not exceeding 75 per centum of the sum which the head of the department or agency considers just compensation for the damage and/or use. A claimant may bring suit against the United States in the Court of Claims or in the District Court of the United States for the district in which such claimant is a resident for an amount which when added to the award shall constitute just compensation for the damage and/or use of the invention by the Government. The owner of any patent issued upon an application that was subject to a secrecy order issued pursuant to section 181 of this title, who did not apply for compensation as above provided, shall have the right, after the date of issuance of such patent, to bring suit in the Court of Claims for just compensation for the damage caused by reason of the order of secrecy and/or use by the Government of the invention resulting from his disclosure. The right to compensation for use shall begin on the date of the first use of the invention by the Government. In a suit under the provisions of this section the United States may avail itself of all defenses it may plead in an action under section 1498 of title 28. This section shall not confer a right of action on anyone or his successors, assigns, or legal representatives who, while in the full-time employment or service of the United States, discovered, invented, or developed the invention on which the claim is based. July 19, 1952, c. 950, § 1, 66 Stat. 806.' | 01-03-2023 | 08-23-2011 |
https://www.courtlistener.com/api/rest/v3/opinions/1600024/ | 571 So.2d 742 (1990)
STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Plaintiff-Appellee,
v.
Bernard Bennett LOBEL, Defendant-Appellant.
Nos. 21990-CA, 21991-CA.
Court of Appeal of Louisiana, Second Circuit.
December 5, 1990.
*743 Brook, Morial, Cassibry, Fraiche & Pizza by Anna E. Dow, Baton Rouge, for defendant-appellant.
Bertrand & Soileau by Ronald J. Bertrand, Charles E. Soileau, Rayne, for plaintiff-appellee.
Before SEXTON, NORRIS and HIGHTOWER, JJ.
SEXTON, Judge.
These consolidated lawsuits involve the expropriation of two parcels of land by the plaintiff, the State of Louisiana, Department of Transportation and Development (DOTD), for the construction of Interstate Highway 49. The defendant, Bernard Bennett Lobel, the former owner of the property, appeals the quantum awarded as compensation for the expropriation. We affirm.
Mr. Lobel owned two tracts of land upon which he operated 28 rental houses of the type commonly referred to as "shotgun" houses, 8 units in the tract designated as Parcel No. 70-3 (at issue in appeal No. 21,990-CA) and 20 units in Parcel No. 69-5 (at issue in appeal No. 21,991-CA). On October 1, 1987, DOTD expropriated the entirety of Parcel No. 70-3 and a portion constituting 16 of the 20 rental units of Parcel No. 69-5. DOTD deposited into the registry of the court $48,555, its estimate of Mr. Lobel's loss from the expropriation of Parcel No. 70-3, and $78,881, its estimate for Parcel No. 69-5.
At trial the parties stipulated that the deposit of $48,555 accurately reflected the market value of Parcel No. 70-3. The parties also stipulated that the market value of the expropriated portion of Parcel No. 69-5, together with the severance damage to the remainder of that tract, was $80,388, or $1,507 more than DOTD had deposited. The primary issue at trial, as it is on appeal, was whether Mr. Lobel was entitled to any amount over the stipulated market value in order to fully compensate him for the expropriation.
The trial court rendered judgment ordering DOTD to pay Lobel $9,300 in addition to the $127,436 deposited, plus interest, court costs, $3,500 in expert witness fees, and attorney fees in the amount of $2,325.
The trial court's written opinion reveals that the $9,300 additional compensation award was based on the stipulated market value of the properties, which was $1,507 in excess of the amount deposited, plus an additional $7,793. This additional sum represented the rental income lost by Lobel when several tenants vacated the premises in anticipation of, but prior to the actual date of the expropriation.
The trial court's written opinion noted that it did not consider the rental property a unique and necessary part of an ongoing business, considering it to be more in the nature of an investment. Therefore, the trial court found that the market value of the property was appropriate compensation, specifically rejecting Lobel's argument that he should have been awarded replacement value to fully recompense his lost rental income.
On appeal, Lobel's initial assignment of error is that the trial court erred in finding that market value, rather than replacement cost, was the proper measure of compensation. Lobel disputes the trial court's finding that the rental property was more in the nature of an investment, rather than an ongoing business. Further, Lobel argues, by their nature and location, these rental properties were unique and therefore indispensable to his business. Thus, he argues the appropriate measure of his loss should be the replacement cost of the rental property to fully remedy the loss of his income stream. Lobel's expert real estate appraiser testified that it would take $200,800 in replacement property to reestablish his former net income.
Property may not be taken or damaged by the state except for public purposes and with just compensation to the owner. In every expropriation the owner shall be compensated to the full extent of his loss. LSA-Const. Art. 1, § 4. The expropriatee is not limited to the market *744 value of his property, if such does not fully compensate his loss. State, Department of Transportation and Development v. Dietrich, 555 So.2d 1355 (La.1990); State Department of Highways v. Bitterwolf, 415 So.2d 196 (La.1982); State Department of Highways v. Constant, 369 So.2d 699 (La.1979).
In Constant, the Louisiana Supreme Court was first confronted with the issue of whether it was constitutionally appropriate to award an expropriatee an amount sufficient to replace his expropriated property where such an amount was in excess of the market value of the property. After determining that the constitution did permit such an award, the court turned to whether the replacement value was the correct amount, under the facts of the case, to fully compensate the landowners.
The state had expropriated the entire loading and parking area of the defendants' marina operation. The land expropriated constituted the only "dry" or compacted land (as opposed to "wet" or semimarsh land) in the immediate vicinity. This dry land was essential for loading and parking, especially for various pieces of heavy equipment. The dry land was therefore indispensable to the defendants' marina operations. The ultimate result of the taking was the virtual destruction of the commercial viability of the remainder or unexpropriated portion of the marina. In light of the unique situation involved, the supreme court found that the market value of the expropriated land was insufficient to fully compensate the defendants. The defendants were instead awarded an amount which would enable them to replace the expropriated parking and loading area.
While awarding the defendants the replacement value of the expropriated property, the court intimated that an award of replacement value was the exception, not the rule.
We do not, by these rulings, announce any general principle that replacement cost is always the most appropriate measure of awarding a landowner compensation for the taking of a physical asset used in his business....
Generally, we assume, the landowners may be compensated fully by other approaches than by awarding them the replacement cost of the improvement taken, especially where (unlike the present instance) the property is not shown to be both unique in nature and location and also indispensable to the conduct of the landowners' business operations on the site from which a part is taken....
State Department of Highways v. Constant, supra at 706.
Although there have been several reported cases in which replacement cost, not market value, was found to be appropriate compensation for an expropriation, these cases, like Constant, have involved unique situations in which the businesses would likely have been destroyed, or at least affected to a substantially detrimental extent, were the expropriated property not replaced.
In Monroe Redevelopment Agency v. Kusin, 398 So.2d 1159 (La.App. 2d Cir. 1981), writ denied, 405 So.2d 530 (La.1981), there was uncontradicted evidence that the expropriated warehouses and showroom were an indispensable part of the defendant's furniture business. This court found no error in the award of replacement value, although this was an amount in excess of market value.
Similarly, in City of Shreveport v. Standard Printing Company of Shreveport, Inc., 427 So.2d 1304 (La.App. 2d Cir.1983), writ denied, 434 So.2d 1106 (La.1983), writ granted, 435 So.2d 426 (La.1983), writ recalled, 441 So.2d 787 (La.1983), this court affirmed an award in excess of market value to enable defendants to replace their printing and office supply business. In that case it was found to be essential to the future existence of the business that the office building on the expropriated property be relocated in Shreveport's central business district, the area from which the company derived 90 percent of its customers. A move away from the central business district and thus away from 90 percent of the customers would have had a significant adverse impact on the business.
*745 Implicit in the cited cases is a finding by the courts that compensation constituting merely the market value of the expropriated property would likely not have prevented the defendants from losing their businesses. Some unique factor of the expropriated property made such property indispensable to the defendants' businesses and rendered the strict market value of the properties insufficient compensation. To place the defendants in as nearly similar a position as they enjoyed prior to the expropriation therefore required an amount sufficient to enable them to replace the indispensable property and thereby avert the probability that they would lose their businesses.
In the instant case, we find no error in the trial court's determination that the evidence presented failed to show by a preponderance of the evidence the unique nature of the expropriated rental properties such that awarding Mr. Lobel the stipulated market value for these properties would presumably have resulted in the destruction of, or substantial injury to his business. We find ample evidence in the record of similar types of rental units which had similar rental rates, thereby precluding a finding of uniqueness.
The factors espoused by Mr. Lobel simply fail to support his contention that these shotgun houses were truly unique. Although the expropriated rental units did have a high degree of tenant stability, the advanced age of many of the tenants implies that this stability would shortly and rapidly have begun to decline. Although the units were well-maintained, the houses were some 50 years old. Mr. Lobel admitted to the increased need for maintenance as the houses became older.
Additionally, we note that Mr. Lobel described his operation of the expropriated rental houses as merely one of his primary sources of income. Mr. Lobel acknowledged that he is a real estate developer and admitted owning, in addition to the expropriated rental property, three small apartment complexes comprising 27 total rental units. Mr. Lobel himself referred to the expropriated rental units, not as his business, but as an investment.
In short, we do not find these rental units to be of the significantly unique nature envisioned in Constant, Kusin, and Standard Printing, such that the failure to replace them would have a significant adverse impact on Mr. Lobel's business. Rather, we find this case more in line with cases in which market value was found to be the appropriate measure of compensation. See State, Department of Transportation and Development v. Shannon-Page Investment Company, 478 So.2d 702 (La.App. 3rd Cir.1985) (market value appropriate to compensate defendant for expropriated rental warehouse), and State, Department of Transportation and Development v. Campisi, 509 So.2d 618 (La.App. 3rd Cir.1987) (market value appropriate to compensate defendant for expropriation of leased service station). We find no error in the trial court's award of the stipulated market value of the expropriated property.
Lobel next argues that the trial court was in error in failing to award him $2,857 in damages for plumbing repairs, excessive water bills, and other miscellaneous repairs. These repairs were allegedly necessitated by vandalism which occurred when Mr. Lobel's tenants moved out in anticipation of, but prior to the actual date of expropriation. The trial court's reasons for judgment takes note of this claim for damages as estimated by the defendant's appraiser, Mr. McCormick. However, in the next sentence, which calculates the total award of compensation, this item is not included. Importantly, the trial court judgment does not include this item. Where there is a demand for an item of damages and it is not included in the judgment, it is considered tacitly rejected, even though it may have been allowed in the trial court opinion. Hebert v. Hebert, 351 So.2d 1199 (La.1977).
In the instant case, it is difficult to determine from the opinion whether the trial judge intended to allow this award and simply made an error in calculation, or whether the judge was simply making reference to it.
*746 As this item of damages was not included in the judgment, we thus must conclude that the trial court rejected this item of plaintiff's damages. We do not find this conclusion clearly wrong in light of the inconclusive evidence regarding the cause (specifically the connexity between the announced plans for expropriation and the vandalism), the extent, and the reasonableness of the repair of these damages presented at trial.
The judgment of the trial court is therefore affirmed at appellant's cost.
AFFIRMED. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/628129/ | 2 F.3d 335
144 L.R.R.M. (BNA) 2107
Robert H. MILLER, Regional Director of region 20 of theNational Labor Relations Board, for and on behalfof the NATIONAL LABOR RELATIONS BOARD,Petitioner-Appellant,v.CALIFORNIA PACIFIC MEDICAL CENTER, Respondent-Appellee.Robert H. MILLER, Regional Director of region 20 of theNational Labor Relations Board, for and on behalfof the NATIONAL LABOR RELATIONS BOARD,Petitioner-Appellee,v.CALIFORNIA PACIFIC MEDICAL CENTER, Respondent-Appellant.
Nos. 92-15721, 92-15746.
United States Court of Appeals,Ninth Circuit.
Aug. 27, 1993.
Prior report: 9th Cir., 991 F.2d 536.
Before: WALLACE, Chief Judge, BROWNING, HUG, TANG, SCHROEDER, FLETCHER, FARRIS, PREGERSON, POOLE, D.W. NELSON, CANBY, NORRIS, REINHARDT, BEEZER, HALL, WIGGINS, BRUNETTI, KOZINSKI, NOONAN, THOMPSON, O'SCANNLAIN, LEAVY, TROTT, FERNANDEZ, RYMER, T.G. NELSON, and KLEINFELD, Circuit Judges.
ORDER
1
Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. | 01-03-2023 | 04-16-2012 |
https://www.courtlistener.com/api/rest/v3/opinions/2441158/ | 968 N.E.2d 217 (2008)
383 Ill. App. 3d 1143
360 Ill. Dec. 138
PEOPLE
v.
HAMPTON.
No. 1-06-3287.
Appellate Court of Illinois, First District.
August 22, 2008.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1028364/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4451
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHARIFF YSALAM CAUGHMAN,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:07-cr-00307-BO-1)
Submitted: October 23, 2008 Decided: March 24, 2009
Before NIEMEYER and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne M. Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shariff Ysalam Caughman pled guilty pursuant to a
written plea agreement to one count of possession with intent to
distribute five grams or more of cocaine base, in violation of
21 U.S.C. § 841(a)(1) (2006), and one count of possession of a
firearm in furtherance of a drug trafficking offense, in
violation of 18 U.S.C. § 924(c) (2006). The district court
sentenced Caughman to a 131-month term of imprisonment. On
appeal, Caughman’s counsel has filed an Anders ∗ brief, noting
that Caughman waived the right to appeal his sentence in the
plea agreement and that there are no meritorious issues for
appeal. However, counsel questions whether Caughman’s sentence
is longer than necessary to achieve the objectives of 18 U.S.C.
§ 3553(a) (2006). Caughman has filed a pro se supplemental
brief raising several issues. The Government has moved to
dismiss the appeal based on Caughman’s waiver of appellate
rights. We dismiss in part and affirm in part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Amaya-
Portillo, 423 F.3d 427, 430 (4th Cir. 2005). Generally, if the
district court fully questions a defendant regarding the waiver
of his right to appeal during the Fed. R. Crim. P. 11 colloquy,
∗
Anders v. California, 386 U.S. 738 (1967).
2
the waiver is both valid and enforceable. United States v.
Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v.
Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). The question of
whether a defendant validly waived his right to appeal is a
question of law that we review de novo. United States v. Blick,
408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that
Caughman knowingly and voluntarily waived the right to appeal
his sentence. Moreover, the sentencing claim Caughman’s counsel
raises on appeal falls within the scope of the waiver. We
therefore grant the Government’s motion to dismiss this portion
of the appeal.
Although the waiver provision in the plea agreement
insulates Caughman’s sentence from appellate review, the waiver
does not preclude our consideration of any errors in Caughman’s
convictions that may be revealed by our review pursuant to
Anders. In accordance with Anders, then, we have examined the
entire record in this case and have found no meritorious issues
not covered by the waiver. Our review of the transcript of the
plea colloquy leads us to conclude that the district court
substantially complied with the mandates of Fed. R. Crim. P. 11
in accepting Caughman's guilty plea and that any omissions did
not affect his substantial rights. The district court ensured
that the plea was entered knowingly and voluntarily and was
3
supported by an independent factual basis. See United States v.
DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). Moreover,
none of the issues in Caughman’s pro se supplemental brief raise
meritorious issues for appeal.
Accordingly, we affirm Caughman’s convictions and
dismiss the appeal of his sentence. This court requires that
counsel inform his client, in writing, of the right to petition
the Supreme Court of the United States for further review. If
the client 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 the client. 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 IN PART;
DISMISSED IN PART
4 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/8304598/ | HICKERSOlSr, J.
The original bill was filed by R. P. Richardson, Jr., in his individual capacity and as trustee for Margaret Richardson Womack and P. Watt Richardson against various nonresident defendants to partition land in kind. The land consists of many thousands of acres of mountain land lying in Marion, Grundy, and Sequatchie Counties, Tennessee.
An amendment to the original bill struck the word “Jr.” wherever it appeared after the name of R. P. *322Richardson; struck the names of Margaret Richardson Womack and P. Watt Richardson from the bill; and alleged that R. P. Richardson was the owner of the record legal title to an undivided 8.9397% of the lands sought to he partitioned.
The nonresident defendants were brought before the court by publication and the cause proceeded upon a pro confesso as to them.
Commissioners were appointed under the usual procedure to partition the land in kind and report to the court. These commissioners made their report as follows:
(a) R. P. Richardson was allotted land in severalty representing 8.9397 % interest in all the land.
(b) James R. Stevens, III, and Mrs. Elsie D. Stevens were allotted land as tenants in common, representing 2.5543% interest in all the land. Wé shall refer to this group as the Stevens interest.
(c) W. S. Mitchell, Sr., W. S. Mitchell, Jr.,' Mrs. Lois Roots Hemingway, and Mrs. Miriam Roots Crawford were allotted land as tenants in common, representing 33.588% interest in all the land. We shall refer to this group as the Mitchell interest.
(d) Milton M. Eagan, P. K. Lutkin, and N. B. Hinkley were allotted land as tenants in common, representing 54.9175% interest in all the land. We shall refer to this group as the Eagan group.
This report of the commissioners was confirmed by chambers decree in which the solicitors for complainant were awarded a reasonable fee for their services; and. a reference was ordered to ascertain the amount. Proof was taken upon the reference, and a report of the master was confirmed fixing this fee at $10,000. The fee was allocated amongst the various owners according to their *323interests in all the land; that is, against the Richardson interest for $893.97; against the Stevens interest for $255.43; against the Mitchell interest for $3,358.80; and against the Eag’an interest for $5,491.47. This decree provided: "In the event said fees are not paid within 60 days from date of entry of this order the lien herein fixed and declared shall be enforced with reference to the lands of any or all the parties hereto who have failed to pay the amount of fee herein adjudged against them by the sale of the lands or such portion thereof as is necessary; and to this end, in event default is made in the payment of said fees by all or any of the parties against whom the same have herein been fixed and allowed, the Clerk and Master is directed to sell the property, or such portion as is necessary, according to law, at the east door of the courthouse in Jasper, Tennessee, on terms of one-third cash and the balance on credit of six and 12 months to the highest and best bidder, taking notes with security, drawing interest from date, and retaining' a lien on the lands for further security; said sale to be made in bar of the equity of redemption, the title of the purchaser to be absolute.”
That part of the fee which was awarded against the Richardson interest and against the Stevens interest was paid. That part of the fee which was awarded against the Mitchell interest and against the Eagan interest was not paid.
In obedience to the decree fixing the fee, the clerk and master sold all the lands which represented the Mitchell interest and the Eagan interest on May 11, 1946; and A. A. Kelly and Burnett Sizer, solicitors for complainant, became the purchasers at a bid of $500 for the Eagan lands and $1,000 for the Mitchell lands. These purchasers complied with the terms of the sale by credit*324ing their judgment against the Eagan interest with $500 and against the Mitchell interest with $1,000.
Burnett Sizer and A. A. Kelly assigned their bid to S. P. Raulston and Paul D. W. Kelly; and the sale was confirmed to them on June 29, 1946.
On May 1, 1946, prior to this sale, W. S. Mitchell, Jr., one of the nonresident defendants who had been brought before the court by publication, filed a petition in the cause to set aside the former decrees alid permit him to file an answer and proceed, “as if the cause were then newly begun.” Code Section 10462.
The chancellor denied the petition, and the Court of Appeals affirmed. The Supreme Court reversed and stated, Mitchell v. Richardson, 187 Tenn. 189, 213 S. W. (2d) 111, 115: “It is insisted in brief that certain decrees of the Chancery Court proceeding or with reference to the partition decree and the attorneys’ fee decree are void; also in reply brief, that certain rights of bona fide purchasers have intervened and cannot be interfered with. This opinion is not to be understood as ruling upon any of these questions, but is limited to holding that petitioner Mitchell may file an answer within such time as is allowed by the chancellor, and thereupon witnesses on either side may be examined and such other proceedings may be had thereon ‘ as if the cause were then newly begun’. The validity or invalidity of any action already taken will, we take it, be determined by the Chancellor, if properly raised, upon these further proceedings. ’ ’
S. P. Raulston and Paul D. W. Kelly sold part of the land which they had purchased as assignee of the bid of A. A. Kelly and Burnett Sizer to Sam Anderson by deed dated December 16, 1946; and they sold part of it to *325H. E. Hoodenpyl and C. C. Parker by deed dated October 18, 1946.
On September 8, 1947, tbe Mitchell interest filed a petition in the canse, later amended, by which they sought leave to answer and by cross bill to have all former decrees in the cause declared void and to have the conveyances based upon such decrees declared to be a cloud upon the title of the Mitchell interest in all the land and cancelled and removed as such.
This petition was granted, and on March 8, 1948, the Mitchell interest filed their answer and cross bill.
On September 13, 1948, Charles C. Moore was allowed to intervene and become a joint party complainant to the cross bill. He alleged that he had purchased all of the interests of all of the tenants in common in the land sought to be partitioned in the original bill, except the land located in Grundy County which had been allotted to R. P. Richardson and to the Stevens interest by the commissioners and confirmed to them by the court; and that the owners of the different interests had, by agreement, partitioned their lands in kind amongst themselves.
R. P. Richardson filed a petition in the cause on September 10, 1948, in which he alleged that he, Charles C. Moore, and P. B. Kemp owned as tenants in common all the lands sought to be partitioned in kind in the original bill; that they had partitioned the lands by agreement amongst themselves; and that they had executed and delivered deeds to each other to carry the partition agreement into effect. He prayed that this partition, made by the parties by agreement, be ratified and confirmed by the court, “without prejudice to the prosecution of the cross bill to determine issues arising thereunder. ’ ’
*326Various defenses were interposed to the petition of Charles C. Moore and to the petition of R. P. Richardson.
The canse came on to he heard upon the merits before the chancellor, especially upon the answer and cross bill, .the defensive pleadings thereto, the petitions of Charles C. Moore and R. P. Richardson, the defensive pleadings thereto, the testimony and the whole record.
The chancellor stated in his opinion:
“The effect of the order sustaining the petition filed by group II, the Mitchell heirs, was to vacate as to them the orders and decrees previously entered in this cause. This would have left them, therefore, entitled to answer and make defense to the original bill but, meanwhile, they had sold out to Mr. Moore. Necessarily Mr. Moore has acquired no greater rights in the premises than his predecessors in title enjoyed. His relief under the cross-bill, therefore, is granted to the extent that the deed by the Clerk & Master to Iielly and Raulston will be declared a cloud on title only in so far as it affects the interests he acquired from Croup II, the Mitchell heirs; limited further to the extent that in so far as the cross-bill seeks to declare and remove as a cloud on title the deed of Kelly and Raulston to Hoodenpyl and Parker and to Sam Anderson, it will be dismissed. The Court is of opinion that these cross-defendants can invoke the aid of Section 10464 of the Code.
“For the purpose and to the extent indicated the petition of Charles C. Moore seeking to become a cross-complainant, is sustained and final decree will be entered on the cross-bill as indicated.
“The petition of R. P. Richardson, seeking confirmation of the original partition subject to the rights of the parties to prosecute the cross-bill will be dismissed at his cost. By what authority such petition is filed has *327not been cited and none by tbe court can be fonnd. Tbe balance of tbe costs of tbe canse are adjudged one-balf against cross-complainant, Charles C. Moore, and one-half against cross-defendants, Kelly and Raulston.”
Tbe decree of tbe chancery court, based upon this opinion, provides:
“It is therefore ordered, adjudged and decreed that tbe cross-complainant Charles C. Moore recover tbe interests in tbe lands conveyed to him by W. S. Mitchell et al., being .33.588 percent of all lands sold to Paul D. W. Kelly and S. P. Raulston by S. L. Havron, Clerk & Master, except as to tbe tracts conveyed by said Kelly and Raulston to H. E. Hoodenpyl and C. C. Parker and to Sam Anderson, to which tracts relief is denied and tbe cross bill dismissed.
“Tbe deed of S. L. Havron, Clerk & Master, to Paul 1). "W. Kelly is cancelled and removed as a cloud on cross-complainant C. C. Moore to tbe extent of 33.588 percent interest in all tbe lands sold to Paul Kelly and S. P. Raulston by S. L. Havron, Clerk & Master, except as to tbe said tracts conveyed by Kelly and Raulston to Sam Anderson and H. E. Hoodenpyl and C. C. Parker.
“Tbe petition of R. P. Richardson filed on September 10, 1948, seeking a confirmation of tbe partition between tbe parties to tbe original bill is dismissed at tbe costs of said petitioner.
“A reference is ordered to determine tbe amount and value of tbe timber cut from tbe lands by or under tbe authority of Paul Kelly and S. P. Raulston and on tbe incoming of tbe report tbe cross-complainant C. C. Moore will have and recover of tbe cross-defendants Paul D. W. Kelly and S. P. Raulston tbe reasonable value of 33.599 percent of tbe timber cut by said defendants. Tbe reason*328able stumpage value will be the basis of fixing value of sucb timber.
“The costs of the cause are adjudged as directed in the opinion for which execution will issue.
‘‘ To the action of the court in dismissing his cross bill as to the 66.412 percent interest in the land sued for and in denying relief and dismissing the cross bill as to the lands sold by Paul D1. W. Kelly and S. P'. Eaulston to Sam Anderson, H. E. Hoodenpyl and 0. G. Parker, the cross-complainant excepted and now excepts and prays and is granted an appeal to the next term of the Court of Appeals at Nashville, Tennessee, which is granted upon appeal bond being filed within thirty days from the entry of this order.
‘ ‘ To that part of the decree sustaining the cross bill as to 33.588 percent of the lands and awarding the cross-complainant a decree therefor the cross-defendants, Paul D. W. Kelly and S. P. Eaulston excepted, now except and pray and are granted an appeal to the Court of Appeals at Nashville, Tennessee. Thirty days are allowed for filing appeal bond.”
Cross complainants and Paul D. W. Kelly and S. P. Eaulston perfected limited appeals to this court.
We shall first consider and determine the questions made by the assignments filed in behalf of cross complainants :
1. It is assigned as error that the original decree confirming the report of the commissioners by which the lands were partitioned in kind and under which solicitors for complainant were awarded a reasonable fee for their services in the cause was void because: (1) The court had no power to allot certain tracts of land to groups of defendants to be held by them as tenants in *329common without their consent. (2) The court had no power to confirm this sale at chambers without notice. (3) The court was exercising a special or limited jurisdiction, conferred by statute, in entering this decree at chambers; and the decree must show on its face that the court had jurisdiction to enter it.
(1) Code Section 9168 provides: “Mode of partition.- — In these cases the partition shall be made according to the respective rights of the parties, setting apart to such as desire it their shares in severalty, and leaving the shares of others, if desired, in common; and if there are minors, the court may, in its discretion, leave their shares in common, or set them apart to each in severalty, as may appear to be just, upon the proof introduced.”
It is contended by cross complainants that the chancellor had no power under this statute to allot land in this partition suit to defendants to be held by them as tenants in common in the absence of their consent which was not given.
We think the last clause of Code Section 9168 compels the construction of the first clause for which cross complainants contend. The last clause deals with the interests of minors, who cannot consent; and the court is given the power, “in its discretion” to “leave their shares in common, or set them apart to each in severalty, as may appear to be just, upon the proof introduced.”
The first clause deals with persons who are sui juris, and no discretion is given to the chancellor to leave their shares to be held in common without their consent.
Code Section 9209 is a somewhat similar statute, which provides: “Sale of life estate with rest. — The court may, with the assent of the person entitled to an estate in dower, or by curtesy, or for life, to the whole or any part *330of the premises, who is a party to the proceedings, sell such estate with the rest.”
Code Section 9209 was construed in Helmick v. Wells, 171 Tenn. 265, 102 S. W. (2d) 58, wherein the court said: “Wells has not consented to a sale of his life estate; on the contrary, he resists such sale. In the absence of such consent, a decree ordering the sale of the life estate, along with the other interests in the land, for division, would be in violation of section 9209 of the Code, and therefore void. ’ ’
The original decree confirming the report of the commissioners was void because the court had no power under the statute to allot certain lands under this partition proceeding to be held by the parties to the suit as tenants in common without their consent which was not given. The facts of the present case justify and demand that this construction of the statute be given. An attorney’s fee was charged against the Eagan interest in the sum of $5,491.47. This group represented an interest of 54.9175% of all the land sought to be partitioned. Three parties owned this interest. The lands allotted to them consisted of many thousands of acres to be held by them as tenants in common. The land so allotted to them was sold as a whole to satisfy this judgment for the solicitors’ fee against their interest. In order to protect himself each of the three parties who owned this land would have been compelled to pay the entire sum of $5,491.47 for this amount was awarded against all of them in a lump sum. Now it could well be that one member of the Eagan group might have wanted to pay his part of the fee so as to keep his land, but he could not do so under the decree and the sale. We hold the court was compelled to allot to each tenant in common his part *331of the land in severalty unless they agreed to have the land allotted to them as tenants in common.
(2) The original decree confirming the report of the commissioners was entered at chambers with no notice to cross complainants. They contend the decree was void for that reason.
Concerning confirmation of land sales at chambers by the chancellor, Code Section 10504 provides: “The chancellor at chambers, or in vacation, is empowered to hear and determine as to the confirmation of reports of sales, and to the same extent and as effectually as in open court during term; provided, however, that the defendant or party adversely affected, or his solicitor of record, be given five days ’ written notice, or accept or waive notice in writing, of the day, hour and place when such report will be presented to the chancellor, in vacation or at chambers. ’ ’
Our Supreme Court construed this statute relating to confirmation of land sales by the chancellor at chambers, prior to the 1925 amendment of the statute, in Jordan v. Jordan, 145 Tenn. 378, 239 S. W. 423, 430, where the court held that a confirmation of a sale of land by the chancellor at chambers without notice was void. The court said:
“Certainly the chancellor was without power and his action was void in pronouncing this chambers decree unless the power and authority therefor is found in the acts above referred to. A court cannot validly adjudicate the subject-matter which does not fall within its province as defined and limited by law. Chickamauga Trust Co. v. Lonas, 139 Tenn. 228, 201 S. W. 777, L. R. A. 1918D, 451.
“The mere consent of parties or waiver of the court’s action cannot confer power upon the court to act in cases where it is not conferred by law. His action is a *332mere nullity, absolutely void, and subject to collateral attack. ’ ’
This decision was announced before Chapter 124, Acts of 1925, relating to confirmation of land sales at chambers by chancellor was enacted. The 1925 Act in no way affected the decision of the court in Jordan v. Jordan.
In Chickamauga Trust Company v. Lonas, 139 Tenn. 228, 201 S. W. 777, 778, L. R. A. 1918D, 451, our Supreme Court approved this statement of the rule taken from 15 R. C. L. 853:
“ While it is well settled that a judgment cannot be questioned collaterally for an error committed in the exercise of jurisdiction, the rule is equally well established that a judgment may be attacked in a collateral proceeding for error in assuming jurisdiction. Even where a court has jurisdiction over the parties and the subject-matter, yet if it makes a decree which is not within the powers granted it by the law of its organization, its decree is void. Thus a judgment may be collaterally attacked where the court had jurisdiction of the parties and the subject-matter of action, but did not have jurisdiction of the question which the judgment assumed to determine, or to grant the particular relief which it assumed to afford to the litigants. . . .
“One form of usurpation of power on the part of a court in rendering a judgment is where it attempts to disregard limitations prescribed by law restricting its jurisdiction. . . . Where a court is authorized by statute to entertain jurisdiction in a particular case only, and it undertakes to exercise the power and jurisdiction conferred in a case to which the statute has no application, in so doing it will not acquire jurisdiction, and its judgment will be a nullity and subject to collateral attack.”
*333If we assume that the confirmation of a report partitioning land in kind wonld be treated as a “sale for partition” and give the chancellor the power to confirm the report at chambers under Code Section 10504, we think notice of the confirmation must be given to the parties adversely affected in order to confer jurisdiction upon the chancery court to enter the decree of confirmation. In such cases, notice to the defendant, or to the party adversely affected, as required by this statute of, “the day, hour, and place when such report will .be presented to the chancellor,” is as essential to the jurisdiction of the chancellor to enter the decree at chambers as the service of process upon an original bill is essential to the jurisdiction of the court. Service of process upon, the defendant under an original bill is necessary to give the court jurisdiction of the person. Notice of confirmation at chambers is necessary to give the chancellor the special jurisdiction conferred by this statute to confirm a sale at chambers.
(3) The chancery court is a court of general jurisdiction. When it exercises this general jurisdiction, there is- a presumption that no jurisdictional defect existed in the absence of a showing to the contrary. Here, however, the chancery court was exercising a special and limited jurisdiction expressly conferred by statute: to confirm land sales at chambers.
In such cases, our Supreme Court said in New York Casualty Company v. Lawson, 160 Tenn. 329, 24 S. W. (2d) 881, 883:
“The bill does not impeach the judgment as voidable upon any such ground of equitable relief. It attacks it as void. A void judgment is one which shows upon the face of the record a want of jurisdiction in the court assuming to render the judgment, which want of *334jurisdiction may be either of the person, or of the subject-matter generally, or of the particular question attempted to be decided or the relief assumed to be given. Chickamauga Trust Co[mpany] v. Lonas, 139 Tenn. 228, 235, 201 S. W. 777, L. R. A. 1918D, 451; Vanvabry v. Staton, 88 Tenn. 353 [334], 12 S. W. 786; Finley v. Gaut, 67 Tenn. (8 Baxt.), [148] 149; Holmes v. Eason, 76 Tenn. (8 Lea) [754], 755.
“It may be said that, in the absence of such an affirmative showing of a jurisdictional defect, there is a presumption that none existed. While this is the rule which is applied to a judgment of a court of general jurisdiction rendered in the exercise of such jurisdiction, it is not the rule for a judgment of a court of special and limited jurisdiction or for a judgment of a court of general jurisdiction where such judgment rests, not upon such general jurisdiction, but upon special and limited powers derived from statute. The rule for a judgment of either of these kinds is that every jurisdictional fact must affirmatively appear upon the record, or the judgment is void. This is true of judgments in attachment proceedings. Harris v. Hadden, 75 Tenn. (7 Lea), 215; Ingle v. McCurrey [McCurry] 48 Tenn. (1 Heisk.), [26] 29; Walker v. Cottrell, 65 Tenn. (6 Baxt.) [256] 257; Pope v. Harrison, 84 Tenn. (16 Lea), 82, 95.”
See also Magevney v. Karsch, 167 Tenn. 32, 65 S. W. (2d) 562, 92 A. L. R. 343; and Carney v. McDonald, 57 Tenn. 232. In this latter case, the court held: “It appears that the motion was made within twelve months, and while the cause was still in court, for the execution of the judgment. The court, therefore, had the power to order the correction of the clerical mistake. But in doing so, the Judge was in the exercise of a special jurisdiction — a jurisdiction which by the principles of *335the common law, he could not have exercised. It was therefore essential to the validity of the order made, that it should have shown, either that the error was apparent on the record, or in the papers, or on the minutes of the Judge; and in addition, it should appear that the opposite party was duly notified. None of these essential requisites appear in the record ordering the correction. We are, therefore, of opinion that this order was a nullity. ’ ’
It is our conclusion that the jurisdictional facts must appear in the face of the decree where land sales are confirmed at chambers; otherwise the decrees are void and of no effect and may he attached collaterally.
2. It is assigned as error that the whole proceeding is void because the court did not have jurisdiction of the subject matter.
Gross complainants assert that E. P. Eichardson, Jr., as trustee, filed the hill; that by amendment the word “Jr.” was stricken from the bill; and the names of the other parties complainant were stricken, leaving the sole complainant as E. P. Eichardson as trustee; and that legal title to no portion of the land was vested in E. P. Eichardson, trustee.
There is no merit in this assignment. The bill, as amended, taking the caption and the body, shows that E. P. Eichardson as trustee and individually brought the suit. It was expressly alleged that legal title to the land of the Eichardson interest was vested in E. P. Eichardson. The proof shows this to be true. The averments of the bill, as amended, and the proof, give the court jurisdiction of the subject matter in so far as it was necessary to allege and prove that E. P. Eichard-son was the owner of the legal title to the undivided *336interest in the land sought to be partitioned. It matters not that the caption showed that R. P. Richardson, trustee, brought the suit. Rose v. Third National Bank, 27 Tenn. App. 553, 183 S. W. (2d) 1; Altman v. Third National Bank, 30 Tenn. App. 81, 203 S. W. (2d) 701.
3. Cross complainants assign as error that the proceedings relating to the sale to satisfy the decree for attorneys’ fees are void and state several reasons in support of this assignment. These proceedings relating to the sale of the lands of the Mitchell interest and of the Eagan interest to satisfy the decree for attorneys’ fees awarded against these interests stem from the original decree confirming the report of the commissioners at chambers whereby the land was partitioned in kind and a reasonable attorneys’ fee was awarded to the solicitors for complainant. Having held that this original decree is void, a nullity and of no effect, it follows that all proceedings had thereunder are likewise void. Wherefore, it is not necessary for us to respond to each reason advanced by cross complainants why these subsequent proceedings are void. We might add that cross complainants contend these subsequent proceedings were void for substantially the same reasons which they gave in regard to the original decree.
4. Cross complainants assign as error that the chancellor dismissed their cross bill as to A. G. Hoodenpyl, C. C. Parker, and Sam Anderson; and refused to set aside the deeds from S. P. Raulston and Paul D. W. Kelly to these parties as a cloud upon the title of cross complainants.
Cross defendants contend that they and their vendees are protected by Code Section 10464 which provides: “Decree will confer good title. — The decree if executed *337before - it is set aside under any of the foregoing- provisions, shall be a protection to all persons acting upon its validity, and confer a good title to all property sold under it.”
Cross defendants further contend that they and their vendees are protected by Code Section 10503, which provides: “Irregularities, lack of notice, etc., cured unless objection is made, when. — Any lack of notice or mere irregularity or failure to comply with the provisions of this article shall be cured unless objections shall be made and proper steps to take advantage of same shall be. taken before or during the next regular or special term of said court succeeding the entry of such order or decree on the minutes by the clerk and master. ’ ’
We have held that the chancellor did not have jurisdiction to enter these chambers decrees which are attacked. Not having jurisdiction, the decrees are void, a nullity, have no force and effect against anyone, and can be collaterally attacked. The jurisdictional facts had to be stated in the decrees to make them presumptively valid when the chancellor attempted to exercise the special and limited jurisdiction conferred upon him by statute to confirm land sales at chambers. These jurisdictional facts do not appear in the decrees.
Wherefore, the partition proceedings and all chambers decrees entered therein are void on their face for lack of jurisdictional facts stated therein; and such decrees cannot protect S. P. Eaulston and Paul D. W. Kelly or their vendees under the foregoing Code Sections. Chickamauga Trust Company v. Lonas, 139 Tenn. 228, 201 S. W. 777, L. R. A. 1918D, 451; Jordan v. Jordan, 145 Tenn. 378, 239 S. W. 423; New York Casualty Company v. Lawson, 160 Tenn. 329, 24 S. W. (2d) 881; *338Magevney v. Karsch, 167 Tenn. 32, 65 S. W. (2d) 562, 92 A. L. R, 343.
5. Error is assigned that the court held that Charles C. Moore came into court with unclean hands, “and for this reason the court, as nearly as possible, will leave the parties where it found them at the time of filing the answer and cross hill.”
Charles C. Moore had been attempting for many months to buy the Mitchell interest in the lands in controversy. The negotiations between him and the Mitchell interest resulted in a contract between the Mitchell interest and Charles C. Moore whereby Mr. Moore did purchase this interest for $3,000. This contract is dated September 3, 1947, and provides that Charles C. Moore will prosecute the suit of the Mitchell interest to clear the title to the land involved in the contract.
We do not know of any rule which would forbid the Mitchell interest from entering into this contract to sell their interest in the land involved in the partition proceeding with the provision that they would prosecute their suit to clear the title to the land, Mr. Moore acting as their attorney. According to their contract, Charles C. Moore, acting as attorney for the Mitchell interest, on September 8,1947, filed a petition in the cause in their name to be allowed to defend by answer and cross bill as if the suit were then newly begun. The petition showed merit and these parties were granted leave to file their answer and cross bill.
Captain W. S. Mitchell, Jr., had theretofore filed a similar petition in the cause which had been denied by the chancellor. He reviewed this decree in the appellate courts, Mr. Moore acting as his attorney, with the result that the Supreme Court held that Captain W. S. Mitchell, *339Jr., ■who was a lawyer himself, could defend the partition proceeding. Mitchell v. Richardson, 187 Tenn. 189, 197, 213 S. W. (2d) 111.
Pursuant to the leave granted them so to do under their petition of September 8, 1947, the Mitchell interest filed their answer and cross bill on March 8, 1948. This answer and cross bill related back to the filing of the petition. Bledsoe v. Wright, 61 Tenn. 471.
On September 17, 1947, the Mitchell interest executed a deed conveying their part in the land to Charles 0. Moore. This deed was placed in escrow with the Hamilton National Bank and was delivered to Charles C. Moore on May 13, 1948.
R. P. Richardson and P. B. Kemp had acquired all the interests in the land sought to be partitioned prior to November 27, 1947, except the Mitchell interest. They had agreed with Charles C. Moore to partition these lands in kind by agreement. Deeds were executed for that purpose and placed in escrow with the Hamilton National Bank. The deed from P. B. Kemp and R. P. Richardson to Charles C. Moore is dated November 24, 1947. It was delivered to Charles C. Moore by the escrow agent on August 31, 1948. The deed from Moore to Richardson is dated November 24, 1947. It was delivered by the escrow agent to Richardson on August 31, 1948.
The deed from Moore to Richardson contains this provision: “The property herein conveyed was acquired by the Grantor by virtue of a deed of W. S. Mitchell, et al. dated Sept. 17, 1947 and recorded in the Register’s Office, Altamont, Tennessee, in Deed Book ‘QQ’, page 593.”
In explanation of this provision it is shown that the book and page where the deed from W. S. Mitchell, et *340al., to Charles C. Moore was registered in the Register’s Office of Grundy County, Tennessee, was left blank in the deed from Moore to Richardson and Kemp as that deed was originally prepared; and that these blanks were filled in when the deed was recorded in compliance with Code Section 8085-8086. This deed shows on its face that it was, “filed for registration May 18, 1948.” Since the deed from Mitchell to Moore was not delivered to Moore until May 13, 1948, and was not filed for registration until May 18, 1948, it would have been impossible to state the book and page where it was registered when the deed from Charles C. Moore to R. P. Richardson and F. B. Kemp was executed on November 24, 1947.
In reaching the conclusion that Charles C. Moore came into court with unclean hands, the chancellor stated: “The answer and cross bill alleged that respondents owned an undivided interest of approximately one-third of all the lands in controversy. This answer and cross bill was sworn to by Charles 0. Moore, notwithstanding the fact that he had bought out the respondents and had himself on the 24th day of November 1947, ‘made peace’ with the complainant, R. P. Richardson, whose bill and the attending proceeding thereon were under fire in the answer and cross bill. In his petition filed September 14,1948, he says, ‘These conveyances operate to compromise and settle all controversies between the parties to the original bill in this cause, leaving* for determination only the issues arising under the said cross-bill.’ To this end he seeks to be permitted to prosecute the cross bill in his own right. ’ ’
We have, therefore, this case: Charles C. Moore purchased the Mitchell interest by deed dated September 17, 1947; but the deed was held in escrow and not delivered *341to Mm until May 13, 1948. The Mitchell interest and Charles C. Moore had agreed that the deed would not he delivered until the grantors conld file the suit to clear their title. It is the rule that a deed does not become effective so as to pass title until it is delivered. The intention of the grantor determines the time and conditions of the delivery. Tanksley v. Tanksley, 145 Tenn. 468, 239 S. W. 766; Wilson v. Winters, 108 Tenn. 398, 67 S. W. 800.
We find no misconduct on the part of Mr. Moore in this transaction. He simply wanted to buy the Mitchell interest, and did so under a contract and deed which deed permitted the Mitchell interest to file suit to clear their title before the deed was delivered, accepted, and the title passed. This was clearly the intention of the Mitchell interest and Charles C. Moore. The Mitchell interest certainly had the right to intervene and protect their interest by answer and cross bill. Their dealings with Mr. Moore should be liberally construed to preserve their rights, not to destroy them.
When Charles 0. Moore was later permitted to intervene and become a party complainant to the answer and cross bill, his suit would be treated as a suit of the Mitchell interest. He should not be repelled on the theory of unclean hands.
6. Under the fourth assignment, cross complainants insist that the chancellor erred in refusing to enter the compromise decree between the parties to the original bill and their vendees as owners of the land in controversy.
This assignment cannot be sustained for two reasons:
(1) Cross complainants prayed a limited appeal, and they did not appeal from that part of the decree of the *342chancellor in which he refused to enter the compromise decree of the parties.
(2) Cross complainants were allowed to file their answer and cross bill. The relief prayed for therein was granted them. The chambers decrees in the partition proceeding have been declared void. The owners of the land do not need the aid of the chancery court to partition their lands in kind amongst themselves. Being sui juris, they can effect such partition by their own conveyances. Upon the remand they can move to dismiss the original bill.
7. Defendants contend that cross complainants are estopped to assert that the chambers decrees are void.
It is the contention of defendants that R. P. Richardson filed the original bill; that all decrees were entered upon his suit; and that he is estopped to attack the decrees.
(1) R. P. Richardson is not attacking the decrees. They are attacked by nonresident defendants who were brought before the court by publication; and against whom the decrees were entered upon pro confesso, at chambers, without notice as required by the statute to give the court jurisdiction.
(2) Where decrees, by which land is partitioned in kind, allotting certain tracts to parties to the suit to be held as tenants in common, are declared void at the suit of one or more parties to the suit, they are void as to all parties to the suit. The only recourse which R. P. Richardson would have had if he wanted to continue with his partition suit was to start at the beginning and have a new partition of the land. Of necessity, that made the decrees void as to him.
Brown v. Brown, 86 Tenn. 277, 6 S. W. 869, 7 S. W. 640; relied on by defendants to support their contention, *343is not in conflict with this opinion. That case involved the construction of a will. H. A. Brown had litigated the case to a conclusion and had sought to relitigate the case. His interests were not affected by the intervention of the nonresident defendants, so he was not permitted to relitigate.
The chambers decrees were void as to all parties to the suit.
8. For the reasons stated herein the assignments of error filed in behalf of S. P. Baulston and Paul D. "W. Kelly are overruled. The Mitchell interest clearly had the right to intervene and proceed, “as if the cause were then newly begun.” Code Section 10462; Mitchell v. Richardson, supra.
The decree of the chancery court will be modified to this extent: (1) The deed from S. L. Havron, Clerk and Master, to S. P. Raulston and Paul D. W. Kelly will be cancelled and removed as a cloud upon the title of appellants — .cross complainants — as to the 66.412% interest in all the land in question, this being the Bichardson interest, the Stevens interest, and the Eagan interest.
(2) The deeds from S. P. Baulston and Paul D. W. Kelly to H. E. Hoodenpyl and C. C. Parker and to Sam Anderson will be cancelled and removed as a cloud upon the title of appellants — cross complainants.
(3) Upon a remand appellants — cross complainants— may assert their claim for timber cut and removed by these cross defendants.
(4) In all other respects the decree of the chancery court is affirmed.
(5) The costs of the appeal are taxed against Paul D. W. Kelly and S. P. Raulston as principals and J. T. *344Raulston and H. Gf. Swafford, the sureties on the appeal bond. The costs in the chancery court will stand as adjudged by the chancellor.
Remand to enforce the decree and for such other proceedings as may seem proper to the chancellor.
Howell, J., and Kizer, Special J., concur. | 01-03-2023 | 10-17-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/3955829/ | After a careful examination of the record in this case, we conclude that the grounds of error alleged in the application for the writ can not be sustained.
The petition alleged, that Brooks was foreman of the section gang to which the plaintiff belonged, and that he had the power to employ and discharge the hands subject to his control; that he directed the plaintiff to take a standing position upon the handcar upon which they were moving, and that while plaintiff was in that position, Brooks, who was directing the movements of the car, permitted it to be run at a dangerous rate of speed; and that while it was so running, without warning to plaintiff, he caused the car to be suddenly stopped, whereby plaintiff was thrown off and injured, without fault on his part. This alleges negligence on part of the foreman in permitting the car to be run in a dangerous manner, and the absence of negligence on part of the plaintiff.
According to the averments in the petition, Brooks and plaintiff were not fellow servants. There is nothing either in the language or the reasoning in the opinion in Railway v. Williams, 75 Tex. 4, which leads to the contrary conclusion. It is true we there say, that "there are numerous cases which hold the employe who has charge of a special department of the company's business, with the power to employ the servants in his department, is not to be deemed the fellow servant of those under his control;" but it was not meant by this that the department of the business should necessarily be a principal one. We think the rule applies to any special business of the master which is carried on by a number of employes under charge of another, with power to employ and discharge the servants engaged in that business. *Page 225
We think the demurrer and exceptions to the petition were properly overruled.
We are of opinion, also, that it is unimportant that the power of employing and discharging hands exercised by Brooks was conferred upon him by the roadmaster. The material fact is that he had the authority; it is immaterial through what officer or agent of the company it was derived. It follows, that in our opinion there was no error in refusing the charge, the rejection of which is complained of as the second ground of the application.
The third assignment of error in this court complains that the Court of Civil Appeals erred in not sustaining the appellant's eleventh assignment in that court. That assignment complained of a certain paragraph in the charge of the court. Since we think that the Court of Civil Appeals properly disposed of that question in their opinion, it is unnecessary that we should add anything to what they have said as to that matter.
The judgments of the Court of Civil Appeals and of the District Court are affirmed.
Affirmed.
Delivered June 18, 1894.
Motion for rehearing overruled October 8, 1894. | 01-03-2023 | 07-06-2016 |
https://www.courtlistener.com/api/rest/v3/opinions/1600112/ | 173 N.W.2d 567 (1970)
STATE of Iowa, Appellee,
v.
Moses Andrew JACKSON, Appellant.
No. 53755.
Supreme Court of Iowa.
January 13, 1970.
*568 Jesse, LeTourneau & Johnston, Des Moines, for appellant.
Richard C. Turner, Atty. Gen., and Michael J. Laughlin, Asst. Atty. Gen., for appellee.
LeGRAND, Justice.
This consolidated appeal presents identical issues raised on separate guilty pleas to two criminal charges. On April 1, 1969, defendant pled guilty to robbery with aggravation. Sections 711.1 and 711.2, 1966, Code of Iowa. He was sentenced to serve a term of 25 years in the state penitentiary. On April 7, 1969, he pled guilty to a charge of escape in violation of section 745.8, 1966, Code of Iowa, and was sentenced to a term of one year in the state penitentiary and to pay a fine.
Defendant has appealed from the judgment and sentence in each case. He asserts he is entitled to a reversal because:
(1) The trial court erred in accepting guilty pleas which were not voluntarily and intelligently made and which were void for failure to conform to requirements of due process of law; and
(2) The trial court erred in entering judgment without first determining that defendant understood and waived his defense to the charges based on a violation of his right to counsel at a pre-trial identification procedure.
For convenience we discuss only the circumstances surrounding defendant's robbery plea, although our conclusions apply to both appeals.
I. Defendant's first assignment of error raises an old problem in a new framework. The problem is whether defendant's guilty plea was voluntary and was made with an intelligent understanding of the nature of the offense and the consequences of the plea. State v. Rife, 260 Iowa 598, 602, 149 N.W.2d 846, 848. The new circumstance is what effect our recent decision in State v. Sisco, Iowa, 169 N.W.2d 542, has here.
In the Sisco case we adopted new standards to be followed in accepting criminal pleas. We imposed additional responsibility on the trial court to determine "defendant's knowledge of the charge, appreciation of legal consequences of a guilty plea, whether it is voluntarily entered, [and the] existence of facts supporting it."
Our Sisco opinion espoused substantially the provisions of rule 11, Federal Rules of Criminal Procedure, and the pronouncements of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.
Defendant argues the Sisco guidelines were not followed in his case; that he was thereby denied due process of law; and that no valid judgment or sentence could be entered on his purported guilty pleas.
We first consider this assignment without reference to the impact of Sisco. Under the record before us we find defendant's *569 plea was voluntarily made with an intelligent understanding of both the offense and the consequences of the plea. He was at all times represented by counsel, whose competency he does not challenge. The trial court interrogated him personally concerning the voluntariness of his plea and the punishment involved. Defendant stated it was his own decision to plead guilty. His counsel recommended that the court accept the plea.
The record also shows a factual basis which easily justified the trial court's action. The minutes disclose that the victim of the alleged robbery was prepared to identify defendant as one of his assailants; that defendant held a gun on him, took his money, and then beat him with the butt of the instrument. In addition an alleged accomplice was listed as a witness who would testify defendant was one of the participants in the crime.
There was enough here to hold the plea valid under our pre-Sisco procedure. Defendant's claim is based on the alleged failure of the trial court to explain the nature of the charge and elements of the offense before accepting his guilty plea. We need not pass on the merits of this argument because defendant is not entitled to the benefit of the Sisco doctrine in any event.
In State v. Vantrump, Iowa, 170 N.W.2d 453, 454, filed September 5, 1969, we held the Sisco guideline standards are not to be applied retroactively. The Sisco opinion was filed July 24, 1969. The plea under examination here was entered on April 1, 1969. Under our holding in Vantrump, therefore, it would appear the Sisco case does not help defendant. He contends, however, that State v. Wisniewski, Iowa, 171 N.W.2d 882, filed November 12, 1969, compels us to apply the Sisco rules to the matter now at hand. We reject this argument.
In Wisniewski we held the defendant should have a new trial because the trial court gave an instruction proper at the time placing the burden of proving alibi on defendant. While that case was on appeal, we repudiated our controversial alibi instruction in State v. Galloway, Iowa, 167 N.W.2d 89.
Because this change occurred while Wisniewski's case was still on appeal we held he should have the benefit of it. See also State v. Evans, Iowa, 169 N.W.2d 200, 203.
Defendant urges that we must reverse and order his case processed under the procedure set out in Sisco because his appeal, like those of Wisniewski and Evans, was pending when the change took effect.
We do not believe those decisions require that result. The considerations which determine the extent to which a change of law shall be applied to cases then pending is discussed in both Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, 889, and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199, 1204-1205. Important factors include the purpose of the new rule; the extent to which the old standard had been relied upon; and the effect a particular kind of application will have on the administration of justice. Underlying all of these is the basic inquiry as to how seriously the discarded rule affected the "very integrity of the fact-finding process" or produced "the clear danger of convicting the innocent."
Both Johnson v. New Jersey and Stovall v. Denno point out that the extent to which a new rule of criminal procedure should be applied varies from case to case depending on the "peculiar traits" of the rule in question and the "degree" to which it affects the fact-finding process.
We held these considerations were insufficient to warrant a new trial for both Wisniewski and Evans. It does not follow that every change must be given similar effect in every case.
*570 Under circumstances like those before us the Supreme Court of the United States has consistently refused to use a new rule as defendant would have us do here.
For instance, the Miranda requirements (Miranda v. Arizona, 86 S.Ct. 1602, 384 U.S. 436, 16 L.Ed.2d 694, 10 A.L.R.3d 974) for determining the voluntariness of statements are applied only to trials subsequent to the date of that opinion. See Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, 892, 893. That case gives the same restricted application to Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977.
Stovall v. Denno, supra, limits the effect of newly adopted pre-trial identification procedures to those conducted after the date of the decisions in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed. 2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed. 1178. In Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16, the court refused to apply the standards of rule 11, Federal Rules of Criminal Procedure, to any case in which a plea had been entered prior to the court's opinion in McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, which had set out the new rules in question.
Again referring to Stovall v. Denno, supra, we find the language of Justice Brennan there particularly in point here. Stovall, it will be recalled, dealt with certain out-of-court identification procedures which had been condemned as unconstitutional in the Gilbert and Wade cases. Stovall held the rule applied only to lineups conducted after the date of those two decisions. At page 1971 of 87 S.Ct., 1204 of 18 L.Ed.2d, we find this, "* * * [I]t may confidently be assumed that confrontations for identification can be and often have been conducted in the absence of counsel with scrupulous fairness and without prejudice to the accused at trial."
Undoubtedly for that reason, the court refused to recognize any distinction between those cases in which conviction had become final and those "at various stages of trial and direct review."
We are convinced this is the only conclusion justified here. Simply because we have now adopted what we consider to be a better method of establishing the validity of a criminal plea does not mean all pleas prior thereto were bad. The great majority were voluntarily and intelligently made. This appears to have been one of those.
We hold, as we did in State v. Vantrump, supra, that the guideline standards adopted in State v. Sisco apply only to guilty pleas entered after the date of that opinion, July 24, 1969. We hold further defendant's plea was a valid plea of guilty to the offense with which he was charged.
II. What we have said in Division I pretty well disposes also of the second assignment of error which claims defendant was denied the right of counsel at a pre-trial investigation procedure in violation of Amendment VI, Constitution of the United States. See United States v. Wade, Gilbert v. California, and State v. Wisniewski, all supra.
We have already determined defendant's plea of guilty was valid as voluntarily and intelligently entered. Under such circumstances any objection to the identification procedure is waived. State v. Delano, Iowa, 161 N.W.2d 66, 72; State v. Hellickson, Iowa, 162 N.W.2d 390, 394; Brewer v. Bennett, Iowa, 161 N.W.2d 749, 750. In Delano at page 72 we said a plea of guilty, if understandably and voluntarily made, acknowledges guilt and eliminates all questions as to admissibility of evidence, constitutes a waiver of defendant's right to be confronted by witnesses who would testify against him and dispenses with presentation of those witnesses. We also said, "When a defendant voluntarily and understandingly pleads guilty with full knowledge of his constitutional rights and has been informed of the consequences of *571 his guilty plea, it is immaterial whether he gave a prior confession or statement without being advised of his right to remain silent, of his right to counsel, and that his statements could be used against him. * * *"
We believe that rationale applies here. Perhaps, as he contends, the identification procedure conducted without counsel violated defendant's constitutional rights and perhaps such identification testimony would have been inadmissible at trial; but this does not render his plea void. The plea waived his right to trial, where he could have properly raised the objection he seeks improperly to rely on here.
III. While our discussion has been limited to the circumstances of the robbery charge, our conclusion is equally applicable to the charge of escape.
Finding no reversible error, we affirm the judgment of the trial court in each case.
Affirmed. All Justices concur, except REES, J.,
who takes no part. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1028103/ | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-7157
JIMMY RAY WEATHERHOLT, JR.,
Plaintiff – Appellant,
v.
OFFICER BRADLEY,
Defendant – Appellee,
and
SERGEANT HARVEY,
Defendant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Jerome B. Friedman, District
Judge. (2:08-cv-00054-JBF-JEB)
Submitted: January 30, 2009 Decided: March 13, 2009
Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion. Judge
Wilkinson wrote a dissenting statement.
Jimmy Ray Weatherholt, Jr., Appellant Pro Se. Richard Carson
Vorhis, Senior Assistant Attorney General, Richmond, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jimmy Ray Weatherholt, Jr., a Virginia prisoner at the
Greensville Correctional Center, appeals the district court’s
order dismissing his pro se 42 U.S.C. § 1983 (2006) complaint
against Sergeant Harvey, and the order granting summary judgment
in favor of Officer Bradley and denying his renewed motion for
appointment of counsel. Because the district court erred in
both instances, we vacate the orders and remand the case for
further proceedings consistent with this opinion.
I. Dismissal of Claim Against Sergeant Harvey
We review de novo a district court’s dismissal under
Federal Rule of Civil Procedure 12(b)(6). See Sec’y of State
for Defense v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th
Cir. 2007). A plaintiff’s statement of his claim “need only
give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Erickson v. Pardus, 127 S.
Ct. 2197, 2200 (2007) (citations and internal quotation marks
omitted). “Factual allegations must be enough to raise a right
to relief above the speculative level” and have “enough facts to
state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. ___, 127 S. Ct. 1955, 1965, 1974
(2007). “[W]hen ruling on a defendant’s motion to dismiss, a
judge must accept as true all of the factual allegations
2
contained in the complaint.” Erickson, 127 S. Ct. at 2200
(citations omitted). In particular, a pro se complaint must be
liberally construed and “held to less stringent standards than
formal pleadings drafted by lawyers.” Id. (citation omitted).
The Eighth Amendment imposes a duty on prison
officials “to protect prisoners from violence at the hands of
other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833 (1994)
(citation omitted). To establish a claim for failure to protect
from violence, an inmate must show: (1) “that he is incarcerated
under conditions posing a substantial risk of serious harm,” id.
at 834, and (2) that the prison officials had a “sufficiently
culpable state of mind.” Id. (internal citations and quotations
omitted). “In prison-conditions cases that state of mind is one
of ‘deliberate indifference’ to inmate health or safety.” Id.
(internal citations omitted). To be deliberately indifferent, a
prison official must “know[] of and disregard[] an excessive
risk to inmate health or safety.” Id. at 837.
“Whether a prison official had the requisite knowledge
of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from
circumstantial evidence, . . . and a factfinder may conclude
that a prison official knew of a substantial risk from the very
fact that the risk was obvious.” Id. at 842. “While the
obviousness of a risk is not conclusive and a prison official
3
may show that the obvious escaped him, . . . he would not escape
liability if the evidence showed that he merely refused to
verify underlying facts that he strongly suspected to be true,
or declined to confirm inferences of risk that he strongly
suspected to exist.” Id. at 843 n.8. A prison official also
may not “escape liability for deliberate indifference by showing
that, while he was aware of an obvious, substantial risk to
inmate safety, he did not know that the complainant was
especially likely to be assaulted by the specific prisoner who
eventually committed the assault.” Id. at 843. A plaintiff’s
failure to personally notify prison officials of an alleged risk
to his safety is not dispositive as to the issue of whether
prison officials knew of the risk. Id. at 848-49. A showing of
mere negligence does not qualify as deliberate indifference.
See Davidson v. Cannon, 474 U.S. 344, 347 (1986); Grayson v.
Peed, 195 F.3d 692, 695 (4th Cir. 1999). The plaintiff must
also show he suffered a serious or significant physical or
mental injury as a result of the defendants’ conduct.
Strickler v. Waters, 989 F.2d 1375, 1380-81 (4th Cir. 1993).
Weatherholt claims that he suffered serious injuries
at the hands of other inmates because Harvey directed that he
identify inmates who allegedly robbed him in person, rather than
through a photo identification process. Although Weatherholt
does not explicitly allege that Harvey knew of, and disregarded,
4
the risk to his safety, his pro se pleading must be liberally
construed and is sufficient to give notice of a plausible claim
to relief under the Eighth Amendment. Weatherholt attached the
response to an administrative grievance that he filed with
prison officials concerning this incident, which indicates that
Harvey did not follow proper procedure and that “appropriate
action” was taken against her as a result. The resolution of
Weatherholt’s grievance in his favor is not conclusive evidence
that Harvey acted with deliberate indifference, but it
constitutes some evidence that Harvey may have disregarded an
obvious, general risk to inmate safety by failing to follow
proper procedure in ordering Weatherholt to make his
identifications in person. The attachment of the grievance
resolution to the complaint also constitutes further notice of a
plausible claim that Harvey was deliberately indifferent to a
serious risk to Weatherholt’s safety. Accordingly, we vacate
the order dismissing Weatherholt’s claim against Harvey.
II. Summary Judgment in Favor of Officer Bradley
We review a district court’s order granting summary
judgment de novo, viewing the facts and drawing all reasonable
inferences in the light most favorable to the non-moving party.
Doe v. Kidd, 501 F.3d 348, 354 (4th Cir. 2007), cert. denied,
128 S. Ct. 1483 (2008). Summary judgment “should be rendered if
5
the pleadings, the discovery and disclosure materials on file,
and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c). In order to withstand a
motion for summary judgment, the non-moving party must produce
competent evidence sufficient to reveal the existence of a
genuine issue of material fact. Fed. R. Civ. P. 56(e)(2); see
Pension Benefit Guar. Corp. v. Beverley, 404 F.3d 243, 246-47
(4th Cir. 2005).
We conclude the district court accorded insufficient
weight to the administrative finding that proper procedures
called for Weatherholt to be asked to identify inmates involved
in the theft from him by looking at photos. While it is
correct, as noted by the court, that “failure to follow prison
rules or regulations does not, without more, give rise to a
constitutional violation,” Myers v. Klevenhagen, 97 F.3d 91, 94
(5th Cir. 1996), it does not appear that the court adequately
considered the rationale for the prison policy in question.
Presumably, the administrative rule violated in this case was
adopted out of recognition that in-person identification of
inmates involved in an incident inherently creates a risk of
retaliation. Accordingly, while we do not hold that Bradley’s
failure to follow proper procedures conclusively establishes her
deliberate indifference to a substantial risk of serious injury,
6
we believe that resolution of the claim on the present record
was simply premature.
We make this finding recognizing that Bradley, in her
affidavit attached to her motion for summary judgment, explains
that she was not aware of any risk to Weatherholt’s safety
before taking him to identify the perpetrators he alleged
forcibly entered his cell, held him against his will, and robbed
him of his belongings. But Bradley’s asserted lack of awareness
of any risk of harm to Weatherholt from an in-person
identification of the inmates involved in the incident is not
dispositive. Given the violent nature of the incident
Weatherholt described, the present record could permit a
factfinder to rationally conclude that Bradley ignored an
obvious risk of significant harm to Weatherholt of which a
reasonable prison official would have been aware. Summary
judgment in favor of Bradley, at least at this stage of the
proceedings, was accordingly inappropriate.
For the reasons stated, we vacate the district court’s
judgment and remand for further proceedings. While
Weatherholt’s motion for appointment of counsel on appeal is
denied, we leave the question of appointment of counsel on
remand to the sound discretion of the district court. We
dispense with oral argument because the facts and legal
7
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
Judge Wilkinson dissents and would affirm the judgment for
the reasons given by the district court. See Weatherholt v.
Harvey, No. 2:08-cv-54, slip op. at 4-5 (E.D. Va. April 11,
2008); Weatherholt v. Bradley, No. 2:08-cv-54, slip op. at 8-9
(E.D. Va. June 20, 2008).
VACATED AND REMANDED
8 | 01-03-2023 | 07-05-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600120/ | 173 N.W.2d 9 (1969)
RENT-A-SCOOTER, INC., Respondent-Appellant,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY, Appellant-Respondent.
Nos. 41760, 41899.
Supreme Court of Minnesota.
December 5, 1969.
*10 Bernard M. Harroun, Minnetonka, for Universal Underwriters Ins. Co.
Schermer, Gensler, Schwappach, Borkon & Ramstead and John Mariani, Minneapolis, for Rent-A-Scooter Inc.
Heard before KNUTSON, C. J., and NELSON, MURPHY, PETERSON, and FRANK T. GALLAGHER, JJ.
OPINION
PETERSON, Justice.
On the afternoon of July 31, 1964, a young man driving a motor scooter rented from Rent-A-Scooter, Inc., a Minneapolis firm, struck an automobile and injured a passenger. The passenger brought suit against Rent-A-Scooter and obtained a default judgment for $10,000. Rent-A-Scooter then filed a declaratory judgment action in the District Court of Hennepin County against its alleged insurer, Universal Underwriters Insurance Company, seeking to shift the burden of the default judgment to Universal Underwriter's shoulders by obtaining a judicial declaration that there was liability insurance coverage. Two appeals are here for consideration:
(1) Plaintiff, Rent-A-Scooter, prevailed on trial of its declaratory judgment action. Defendant, Universal Underwriters, appeals from the order denying its post-trial motion for judgment notwithstanding the verdict or for a new trial. We affirm.
(2) Plaintiff, in a separate post-trial motion, sought an award from defendant for the attorneys' fees plaintiff incurred in its declaratory judgment action. Plaintiff appeals from the order denying its motion. We also affirm this order.
1. The declaratory judgment action, involving an issue of fact, turns upon the admissibility of certain evidence offered by plaintiff. The president of Rent-A-Scooter testified that when the damaged motor scooter was returned to plaintiff's shop, he called the Barr-Korengold Agency, the people who had sold him the insurance, reporting the accident and giving the serial number of the scooter involved to a secretary who answered the telephone. Although not all of plaintiff's scooters were covered by the policy, those covered were listed in the policy by serial numbers. Plaintiff rests its case on the factual basis that just after the accident the number of the scooter was known, although since forgotten; that the number, as then known, was given to the insurer's agent; that the agent confirmed coverage; and that timely notice of the accident was given to the insurer. According to the plaintiff's president, the unidentified secretary to whom he spoke on the telephone acknowledged that the scooter involved in the accident was insured.
Whether plaintiff's president called the office of Barr-Korengold Agency and whether a secretary stated to him that there was coverage are questions of fact. The trial court's findings on these questions are not manifestly contrary to the evidence, for the jury could believe the testimony of plaintiff's president and disbelieve the contrary testimony of the witnesses for defendant. That there was an adequate foundation to authenticate the conversation with the Barr-Korengold secretary and to establish her authority to act for her employer was settled, under similar facts, in Sauber v. Northland Ins. Co., 251 Minn. 237, 87 N.W.2d 591.
Whether plaintiff's conversation with the secretary was inadmissible hearsay is, of course, a question of law. This testimony is clearly hearsay, for it is being offered as evidence of the truth of the matter declared. But it is an admission, and is admissible as an exception to the hearsay rule. If the statements made by *11 an agent are against the principal's interests at time of trial, and if they were made by the agent while acting within the scope of his authority while engaged in the business of his principal, and if they are statements of fact and not opinion, they are admissible. Rosenberger v. H. E. Wilcox Motor Co., 145 Minn. 408, 177 N.W. 625; 31A C.J.S., Evidence, §§ 343, 351a. See, generally, McCormick, Evidence, § 239. That the hearsay is testified to by an interested party here the plaintiff's president affects only the weight accorded it, not its admissibility. Mortenson v. Hindahl, 247 Minn. 356, 77 N.W.2d 185.
2. The authority that plaintiff cites for its position that attorneys' fees should be awarded is Morrison v. Swenson, 274 Minn. 127, 142 N.W.2d 640. In that case, as in this case, there was a personal injury action against an automobile owner who claimed that an insurance company was obligated under a liability policy to defend the action. The insured brought a third-party action for a declaratory judgment against the insurer and, in the same action, claimed attorneys' fees incurred in prosecuting that action. The insurer, it should be noted, conceded that the attorneys' fees incurred in the defense of a prior third-party action against the insured were properly included in damages. This court there said (274 Minn. 137, 142 N.W.2d 647):
"The only other question remaining is whether it was proper for the court to permit plaintiff to recover his legal fees incurred in the declaratory judgment action, although the general rule is that legal fees are ordinarily not recoverable unless there is statutory authority for it. Dworsky v. Vermes Credit Jewelry, Inc., 244 Minn. 62, 69 N.W.2d 118; Smith v. Chaffee, 181 Minn. 322, 232 N.W. 515; Stickney v. Goward, 161 Minn. 457, 201 N.W. 630, 39 A.L.R. 1216.
"However, this action is in the nature of an action to recover damages for breach of contract. Legal fees incurred in the declaratory judgment action were damages arising directly as the result of the breach. We think that the injured party in an action of this kind ought to be permitted to recover whatever expenses he has been compelled to incur in asserting his rights, as a direct loss incident to the breach of contract. See, 7A Appleman, Insurance Law and Practice, § 4691."
Morrison was significantly limited, however, by our more recent decision in Abbey v. Farmers Ins. Exch., 281 Minn. 113, 160 N.W.2d 709, where a judgment for plaintiff's attorneys' fees was reversed. The issue of awarding attorneys' fees there arose in a two-party action, an action by the insured against his insurer to recover disability payments, there being, therefore, no prior third-party action to have been defended by the insurer. Notwithstanding the fact that both Morrison and Abbey involve a claim for attorneys' fees in an action to determine policy coverage, we have treated Morrison as being a claim for damages resulting from breach of contract by the insurer's failure to defend, saying in Abbey (281 Minn. 118, 160 N.W.2d 712):
"* * * [T]his court limited the rule established in that case to the situation presented therein and made it clear that it recognized the general rule that ordinarily attorneys' fees are not recoverable unless there is statutory authority for it. While in Morrison we held, as an exception to the general rule, that a party who is thrust into litigation with a third person by reason of a wrongful act of another in breach of contract may recover attorneys' fees incurred in such prior litigation in an action against the one who committed such wrongful act, this court again later affirmed the general rule that attorneys' fees are allowed only when authorized by statute or provided for in the contract. See, Grodzicki v. Quast, 276 Minn. 34, 149 N.W.2d 8."
We hold that when an insured is compelled to defend himself in an action because his insurer has erroneously denied its obligation to defend him under its liability *12 policy, the attorneys' fees incurred in the defense of that action may be awarded the insured as contract damages in a subsequent action against the insurer; but, absent statutory authority or specific provision in the insurance contract itself, the insured may not recover attorneys' fees incurred in an action against the insurer to establish coverage under an insurance policy. Because the plaintiff interposed no defense in the action against him, permitting the issue to be decided by default, there is no basis for an award to him to attorneys' fees.
Affirmed. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600128/ | 1 So.3d 1272 (2009)
STATE FARM FLORIDA INSURANCE COMPANY, Appellant,
v.
Jacqueline HILL, Appellee.
No. 2D08-40.
District Court of Appeal of Florida, Second District.
February 13, 2009.
*1273 Lee Craig and Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellant.
Raymond T. Elligett, Jr. of Buell & Elligett, P.A., Tampa, and David J. Pettinato of Merlin Law Group, P.A., Tampa, for Appellee.
GALLEN, THOMAS M., Associate Senior Judge.
State Farm Florida Insurance Company appeals a final order of the circuit court entered on November 27, 2007, and titled "Order on Relinquishment of Jurisdiction." The order was entered as a result of this court relinquishing jurisdiction in Hill v. State Farm Florida Insurance Co., case 2D07-2311. In case 2D07-2311, Hill-State Farm's insuredappeals a March 12, 2007, order granting summary judgment in favor of State Farm on Hill's complaint for breach of contract. This court relinquished jurisdiction in case 2D07-2311 for the trial court to determine if the March 12, 2007, order is a final, appealable order and to determine if an earlier order entered on October 19, 2006, was a final judgment disposing of the case. On relinquishment, the circuit court entered the November 27, 2007, order on appeal in this case, finding that the March 12, 2007, order was void because the earlier order entered on October 19, 2006, constituted a final judgment in the case.[1] Case 2D07-2311 has been stayed pending the outcome of this case.
State Farm argues that the circuit court erred in ruling that the October 19, 2006, order was a final judgment. We agree for two reasons. First, the October 19, 2006, order does not clearly dispose of Hill's claim against State Farm. Hill had filed a complaint against State Farm for breach of contract, contending that State Farm provided "low ball" estimates to Hill when she attempted to recover under her homeowner's insurance policy and that State *1274 Farm refused to tender all the insurance proceeds due and owing to Hill. State Farm then demanded appraisal as provided for in the insurance contract. After an appraisal panel arrived at an award, Hill filed a motion in the breach of contract action to confirm the appraisal award, which the circuit court granted. Hill then requested a final judgment on the confirmation of the appraisal award, and the circuit court entered the October 19, 2006, order. The October 19, 2006, order is titled "Final Judgment," but it simply states that the order confirms the final appraisal award. The order does not contain language of finality disposing of the breach of contract action in favor of one of the parties. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) ("A final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary."); Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1st DCA 2002) (holding that final order "must contain unequivocal language of finality"); Sodikoff v. Allen Parker Co., 202 So.2d 4, 6 (Fla. 3d DCA 1967) ("A pleading will be considered what it is in substance, even though mislabelled.").
Additionally, a review of the record as a whole indicates the October 19, 2006, order was not intended to be a final order in the breach of contract action filed by Hill. At a hearing held on Hill's request for a final judgment, State Farm objected to entry of a final judgment on the basis that there had not yet been any determination on the breach of contract issue. After a lengthy discussion between both parties and the circuit court, the court ultimately stated that it was not finding judgment in favor of Hill on the breach of contract action but that it was merely confirming the appraisal award. Therefore, the circuit court did not intend the "Final Judgment" entered on October 19, 2006, to constitute a final order in the circuit court action.[2]
Based on the reasons expressed above, we conclude that the circuit court's October 19, 2006, order was not a final judgment in the breach of contract action below. We therefore vacate the circuit court's order of November 27, 2007.
FULMER and SILBERMAN, JJ., Concur.
NOTES
[1] In the November 27, 2007, order, the circuit judge noted that "due to recusal and scheduled rotation of judicial assignments," he was the "third circuit judge participating in this case."
[2] The parties' actions after entry of the October 19, 2006, order further indicate that the order was not intended to be a final judgment in the breach of contract action. After the circuit court entered the October 19, 2006, order, Hill requested a case management conference. State Farm then filed a motion for summary judgment, which Hill opposed, arguing that the breach of contract issue was an issue for the trier of fact. At the hearing on State Farm's motion, Hill's attorney contended that the appraisal process only determined the amount of loss, that the issue of breach had not been resolved by the appraisal process, and that Hill was requesting a jury trial on the issue of breach. On March 12, 2007, the circuit court entered the order granting State Farm's motion for summary judgment, which is the subject of Hill's appeal in case 2D07-2311. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1737199/ | 535 F. Supp. 962 (1982)
R. Ernest HUTCHINSON, Plaintiff,
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.
No. C-3-79-195.
United States District Court, S. D. Ohio, W. D.
March 1, 1982.
*963 Steven B. Horenstein, Dayton, Ohio, for plaintiff.
Joseph E. Kane, Asst. U. S. Atty., Columbus, Ohio, for defendant.
DECISION AND ENTRY SUSTAINING DEFENDANT'S OBJECTIONS TO REPORT AND RECOMMENDATION OF THE MAGISTRATE; MAGISTRATE'S REPORT AND RECOMMENDATION REJECTED IN ITS ENTIRETY; PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT OVERRULED; DEFENDANT'S MOTION FOR SUMMARY JUDGMENT OVERRULED; CASE REMANDED FOR FURTHER PROCEEDINGS; TERMINATION ENTRY
RICE, District Judge.
I. INTRODUCTION
This matter is before the Court pursuant to Defendant's objection, filed pursuant to 28 U.S.C. § 636(b)(1)(C), to the Magistrate's Report and Recommendation that Defendant's motion for summary judgment be overruled, and that Plaintiff's motion for summary judgment be sustained. A synopsis of the history of this case is set forth below.
Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income on November 29, 1977, alleging that he had been disabled since September 1, 1974, due to emotional problems, extreme hypertension, anxiety reaction and a nervous breakdown. The claims were denied *964 initially and upon reconsideration by the Social Security Administration (SSA), whereupon Plaintiff requested a hearing. On January 4, 1979, a hearing was held before an Administrative Law Judge (ALJ), before whom Plaintiff appeared with his wife and attorney. In addition, the ALJ received testimony from Dr. James L. Titchener, a psychiatrist, and George E. Parsons, a vocational expert. On January 24, 1979, the ALJ rendered a decision finding that Plaintiff was not under a disability and was not entitled to benefits. Plaintiff then requested review by the Appeals Council, and the Council affirmed the ALJ's decision on April 20, 1979.
On May 9, 1979, Plaintiff filed his complaint with this Court, seeking judicial review of the administrative decision. The matter was referred to the U.S. Magistrate on May 10, 1979, pursuant to 28 U.S.C. § 636(b)(1). Upon cross motions for summary judgment, the Magistrate, in a "Report and Recommendation" dated August 29, 1980, recommended that Defendant's motion for summary judgment be overruled, and that Plaintiff's motion for summary judgment be sustained, for the reason that the ALJ's decision was not supported by substantial evidence.
Defendant then filed a motion to review the Report of the Magistrate on September 12, 1980, pursuant to 28 U.S.C. § 636(b)(1)(C).
II. DE NOVO REVIEW
In reviewing the decision of the Secretary, the Magistrate's task is to determine if that decision is supported by "substantial evidence." Under 28 U.S.C. § 636(b)(1)(C), this Court, upon objections being made to the Report of the Magistrate, is required to make a de novo review of those recommendations of the Magistrate's Report to which objection is made. This de novo review, in turn, requires this Court to re-examine all the relevant evidence, previously reviewed by the Magistrate, to determine whether the findings of fact by the Secretary are supported by "substantial evidence." 42 U.S.C. § 405(g); Parish v. Califano, 642 F.2d 188, 189 (6th Cir. 1981). The Supreme Court has stated that substantial evidence means:
[M]ore than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971).
To obtain benefits under the Social Security Act, the burden is initially on the claimant to show disability which prevents him from performing his usual work. The disability must result from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(C). Once the claimant establishes a prima facie case of disability, the burden shifts to the Secretary to go forward with proof that the claimant has residual capacity for substantial gainful employment, and that there are jobs in the national economy which the claimant can perform. Young v. Califano, 633 F.2d 469, 470 (6th Cir. 1980); Slaven v. Harris, 508 F. Supp. 280, 283 (S.D.Ohio 1981). To meet this burden, the Secretary must receive evidence to show that the claimant can engage in substantial gainful work in light of the claimant's age, education, work experience, and physical condition. 42 U.S.C.A. §§ 423(d)(2) (A), 1382c(a)(3)(B). The preferred method of receiving such evidence is through the testimony of a vocational expert. O'Banner v. Secretary of Health, Education and Welfare, 587 F.2d 321 (6th Cir. 1978).
As the ALJ aptly stated, the record contains "voluminous medical evidence" on Plaintiff's mental impairment. (T. 25). Said evidence must be summarized and restated herein only to the extent that it clarifies the ALJ's decision, the Magistrate's Report and the Defendant's objections thereto.
The evidence indicates that Plaintiff was born on February 14, 1942, is in good physical condition and is married and the father of two children. (T. 42-43). He earned a *965 high school diploma while serving in the Navy in the early 1960's (T. 44), and between 1963 and 1969 he worked at Frigidaire and Chrysler AirTemp, primarily as a welder. (T. 51-52). During that period he also worked briefly as a real estate salesman. (T. 50). Between 1969 and 1971, Plaintiff worked as a sales representative for Huber Homes (T. 53), and from 1971 through 1974 he ran, apparently quite successfully, his own real estate office. (T. 55-56). However, Plaintiff stopped working after 1974 due to his psychological problems. He claims to have made two unsuccessful attempts to work in 1977 (T. 57, 70-71), and also attended, but did not complete, an electronics course in 1978. (T. 45). Plaintiff also claimed that he was unable to get along with others (T. 65), has shaking spells (T. 72), and has difficulty remembering and concentrating. (T. 72-73). These symptoms were confirmed, to some extent, by Plaintiff's wife in her testimony. (T. 85).
The medical evidence indicates that Plaintiff was hospitalized a number of times between 1974 and 1976, and apparently attempted to take his life twice during that period, through an overdose of medication.
Four medical reports from the Veterans Administration Hospital outline Plaintiff's psychological problems. A report by Dr. Mathews of September 10, 1975, stated that Plaintiff had attempted suicide in 1974, had suicidal tendencies after admission to the hospital, but was oriented to time, place and person, and was alert and responsive. Although he was hyperactive during interviews, he gradually improved and was discharged with no work limitations. The final diagnosis was depressive neurosis. (T. 184-85).
A report by Dr. Aceituno, dated January 27, 1976, diagnosed Plaintiff as suffering from a schizoid personality with depression, anxiety and obsessive-compulsive features. However, the report stated that he was "alert and neither confused nor depressed," and, at discharge, was mentally competent and could return to his previous work. (T. 186-87). Similarly, a report dated August 6, 1976, by Dr. Proda, diagnosed Plaintiff as suffering from anxiety neurosis with depression and passive-aggressive personality. Once again, however, Plaintiff was found to be mentally competent at discharge and could return to work. (T. 188-89).
The fourth and final report from the VA, by Dr. Pavig, dated November 26, 1976, diagnosed Plaintiff as suffering from depressive neurosis, but was alert and well-oriented, save for suicidal statements. He left the hospital against medical advice to seek private treatment in the form of electric shock therapy. Nevertheless, he was, once again, found to be mentally competent at discharge with no work limitations. (T. 193-94).
Dr. Smith has also treated Plaintiff since 1974. In a brief report and a letter, Dr. Smith stated that Plaintiff was suffering from manic depression, and opined that he was unable to hold any type of job. (T. 190, 228).
Plaintiff has also been treated at the South Community Mental Health Center. A report from the Center, dated February 1, 1978, stated that Plaintiff was suffering from manic-depression, but that he was friendly, verbal and responsive, and that his short-term and long-term memories seemed to be intact. However, the report concluded that he "was experiencing no growth at best, and very possibly regressing." (T. 206-07).
Finally, Dr. Tangeman performed a psychological evaluation on Plaintiff on May 27, 1977. The diagnosis was psychoneurotic disorder of a depressive type, with manic depressive features. Dr. Tangeman felt that there was a need for psychiatric treatment, but that he should be involved in a day to day work situation in order to begin an adjustment back toward employment. He concluded that Plaintiff "has good skills and shows potential for training if his emotional condition stabilizes." (T. 216-17).
At the hearing, the ALJ called Dr. Titchener to assist in evaluating the considerable medical evidence in the record. (T. 93). Dr. Titchener, who only reviewed the file *966 and did not examine Plaintiff (T. 94), characterized the medical evidence as "very conflicting and difficult to clarify." (T. 95). The evidence, he argued, supported a diagnosis of depression, but there were only "illusions" to manic depressive psychosis and schizophrenia (T. 95-96). Dr. Titchener stated that the medication Plaintiff said he was taking (T. 63) was an appropriate treatment for anxiety and depression. (T. 99). Finally, he stated that Plaintiff lacked confidence and poise, but could probably work as an assembler in a factory. (T. 100).
Dr. Parsons also testified at the hearing. Upon questioning from the ALJ, Parsons stated that if Plaintiff had correctly described his symptoms and limitations during the hearing, he could engage in no work. (T. 105). The ALJ further asked if Plaintiff could engage in work if, in contrast, it were assumed that he suffered from neurotic depression resulting in lack of poise and confidence. Parsons answered in the affirmative. (T. 107). Plaintiff's attorney asked Parsons whether Plaintiff could engage in work, assuming he suffered from neurotic depression, such that it interfered substantially with his ability to concentrate and remember, that he avoided contact with others, and was substantially restricted in his daily activities. Parsons answered this question in the negative. (T. 108).
In his decision, the ALJ first summarized the extensive medical evidence in the record. (T. 20-24). Based on this evidence, he concluded (not surprisingly) that Plaintiff did have "a significant mental impairment." (T. 25). After pointing out that virtually all of the medical reports stated that Plaintiff could return to work (T. 25), he summarized the testimony of Dr. Titchener and held that said testimony was "in accordance with the weight of the evidence in the record." (T. 25). The statements of Plaintiff and his wife during the hearing were "not fully accepted as a correct statement of the claimant's condition." (T. 25). Based on Parson's testimony, the ALJ concluded that while Plaintiff could not resume his prior work as a real estate salesman or an automobile salesman, he could engage in his prior work as a factory assembler and welder, or work as an inspector, material lister and in other positions of a relatively routine nature requiring little contact with others. (T. 26). Hence, the ALJ found Plaintiff not to be disabled. (T. 26-27).
The Magistrate in this case also summarized the medical evidence (Report at 3-7), but, unlike the ALJ, concluded that:
The medical evidence in the record demonstrates that Plaintiff does have a psychological impairment, although there is conflicting evidence concerning the severity of that impairment. In his decision, the ALJ relied upon medical reports in the record which indicated that Plaintiff was not restricted in returning to his former employment. However, the facts in the case demonstrate that Plaintiff's psychological problem was perceived by Plaintiff as being severe enough to warrant his attempting suicide on several occasions. Furthermore, Plaintiff's condition was perceived by Dr. Smith as being severe enough to warrant electro-convulsive therapy (E.C.T.). Although the Courts are not to interpret the Social Security Act so broadly as to equate it with unemployment compensation, the Act is nevertheless to be construed liberally. Polly v. Gardner, 364 F.2d 969 (6th Cir.1966).
The Court finds that the Plaintiff meets the requirements found in the Listing of Impairments under 20 C.F.R. § 404.1503(d), Subpart P, App. 1, Section 12.04(A)(2), (6)(B) (1969).
Report at 8. Based on his review of the evidence, the Magistrate recommended that Plaintiff's motion for summary judgment be sustained, and that Defendant's summary judgment motion be overruled. Id.
Defendant advances two objections to the Magistrate's Report and Recommendation. First, he argues that the Magistrate went beyond this Court's scope of review of an ALJ's decision when he applied, sua sponte, the SSA regulations. That is, the Secretary contends that the Magistrate engaged in a de novo reexamination of the record, rather than determining if the Secretary's decision *967 was supported by substantial evidence. Second, the Secretary argues that the ALJ's findings of fact are supported by substantial evidence and should, accordingly, be accepted as conclusive by this Court.
After reviewing the extensive and detailed record in this case, the Court finds Defendant's second objection to be well taken. There is no question, of course, that mental impairments, standing alone from illness or other disorders, can be disabling. Branham v. Gardner, 383 F.2d 614, 618 (6th Cir.1967); Ross v. Gardner, 365 F.2d 554, 558 (6th Cir.1966). The Secretary does not contest the fact that Plaintiff is suffering from some degree of mental illness. Rather, the central issue facing the ALJ was whether said illness prevented Plaintiff from performing his past work or engaging in other work. As previously noted, the ALJ concluded that Plaintiff could perform his past work as a welder or factory assembler, or engage in other substantial gainful employment not requiring frequent contact with other persons. This Court finds the ALJ's conclusion to be supported by substantial evidence.
As previously summarized in this opinion, every medical report concerning Plaintiff agreed that Plaintiff was suffering from some degree of neurosis. In addition, however, virtually every report (e.g., those by Drs. Mathews, Aceituno, Pavig, Proda and Tangeman) found Plaintiff to be alert and responsive and capable of returning to work. Indeed, the only opinion to the contrary was by Plaintiff's own physician, Dr. Smith, who stated that his patient was incapable of returning to work. Normally, the views of a doctor who has treated a claimant over a long period are entitled to greater weight than the reports of doctors who have seen the claimant for shorter periods. Stamper v. Harris, 650 F.2d 108, 111 (6th Cir.1981). This maxim cannot apply to Smith's reports herein, however. The record indicates that Smith filed a very brief report (T. 190) and two briefer letters (T. 228, 259) stating that Plaintiff was disabled. The ALJ, who did summarize Smith's views in his decision (T. 21, 23), was entitled to give less weight to those views, given the brevity of Smith's reports, and the failure of said reports to adequately detail the underlying medical basis for the conclusions reached therein. In short, there was substantial evidence to support the ALJ's resolution of a conflict of views among the medical reports. LeMaster v. Weinberger, 533 F.2d 337 (6th Cir. 1976).
In addition, the ALJ properly questioned the vocational expert, and properly relied on answers to these questions. As already indicated, the expert was first asked to assume that everything the Plaintiff said was true. He was then asked to assume only that Plaintiff's depression led to a lack of poise and confidence. To this latter question, the expert responded that Plaintiff could engage in work, particularly work where he would not have to deal with the public. (T. 106).
There is substantial evidence in the record to support the ALJ's reliance on the latter, but not the former, question. Both Plaintiff and his wife testified at the hearing as to his memory impairment and his inability to work with others. However, the ALJ accurately pointed out that there were numerous factual inconsistencies between their versions of various events (T. 25 & n.1). Moreover, Plaintiff himself stated that he might be able to work in a factory job. (T. 64-65). Thus, there was a basis for the ALJ not to fully credit Plaintiff's testimony.
It is true, as Plaintiff's attorney pointed out to the ALJ (T. 110), that unsuccessful attempts to return to work mean that less evidence is necessary to support a finding of disability. See, Walston v. Gardner, 381 F.2d 580, 586-87 (6th Cir.1967). However, the circumstances surrounding Plaintiff's attempts to return to work in 1977 and 1978 are hardly clear. First, Plaintiff testified that he worked briefly selling real estate in 1977, putting in about three hours a week, but quit due to a failure to make any sales. (T. 57). Plaintiff's wife, who was not present during her husband's testimony (T. 75), stated that he quit at the time because *968 "he just couldn't work." (T. 76). Second, Plaintiff testified that he arranged to work as a salesman for Superior Homes in Houston, Texas, but that he wrecked his car in an accident on the way there. He did not mention actually working in Houston. (T. 70-71). In contrast, Plaintiff's wife stated that the car accident occurred on the way back from Houston, that he had worked for a very short time there, but quit because he "couldn't take it." (T. 78). Finally, Plaintiff attended, but did not complete, an electronics course in 1978. He stated that he drove to the school on a daily basis, but quit due to discomfort from an eye allergy. (T. 46). The ALJ noted these various versions of Plaintiff's attempts to work and return to school. (T. 22-23). As the above factual summary indicates, it was not unreasonable for the ALJ to conclude that Plaintiff's attempts to return to work or school could not be unequivocably characterized as "unsuccessful" in nature. Hence, the Walston v. Gardner rule, with respect to the necessity of a lesser showing of evidence, need not apply to the case herein.
For these reasons, this Court cannot accept the Magistrate's review of the record. The Magistrate, as quoted above, stated that Plaintiff's two suicide attempts, and Dr. Smith's prescription of electric shock treatments, suggested that the ALJ's decision was not supported by substantial evidence. Report at 8. However, neither the suicide attempts nor said treatments, by themselves, support such a conclusion. There is substantial evidence in the record to support the ALJ's factual finding that Plaintiff's mental impairment, while it existed, was not so severe so as to prevent Plaintiff from resuming his prior work as a welder or factory assembler, or to engage in other substantial gainful work. Accordingly, Defendant's second objection to the Magistrate's Report and Recommendation is well taken.
An extensive discussion of Defendant's first objection to the Report, pertaining to the Magistrate's application of the SSA regulations, is unnecessary. The Magistrate held that, pursuant to 20 C.F.R. § 404.1503(d) (1979),[1] Plaintiff met the requirements found in the listing of impairments of 20 C.F.R., Subpart P, App. 1, § 12.04(A)(2),[2] and, hence, was disabled. Report at 8.
The cited regulations became effective on February 26, 1979, see 43 Fed.Reg. 55349 (1978), approximately a month after the ALJ's decision in late January of 1979. *969 However, the regulations were effective while the case was pending before the Appeals Council. In its decision of April 20, 1979, denying Plaintiff's appeal of the ALJ's decision, the Council stated that it had reviewed the case under the new regulations, "but found no reason to disturb the hearing decision." (T. 7).
As previously stated, Defendant objects to the manner of the Magistrate's sua sponte application of the regulations, rather than to his reviewing the Appeals Council's application of the regulations. Defendant's characterization of the Magistrate's report seems valid. While the regulations cited by the Magistrate are, apparently, the appropriate ones to apply in this case, said regulations are nowhere expressly cited, or applied, in the record. Instead, there is only the Appeals Council's general statement, quoted above, that the ALJ's decision was reviewed under the new regulations. Given this characterization of the Magistrate's report, Defendant's first objection is well taken. The better practice, in cases such as these, is to remand the matter for additional consideration by the SSA, if a Court feels the SSA incorrectly applied, or inadequately dealt with, relevant regulations. See, Slaven v. Harris, supra, 508 F.Supp. at 287.
Such a remand is the appropriate course in the matter herein. While this Court holds that the ALJ's decision was supported by substantial evidence, it is possible that application of the regulations, concerning mental impairments (cited by the Magistrate), could direct a different outcome on Plaintiff's claim. The regulations, see footnotes 1-2, supra, direct a finding of disability, if appropriate criteria are met, without consideration of vocational factors. Since the ALJ's decision relies to a large extent on the vocational evidence submitted by Dr. Parsons, it is difficult, if not impossible, for this Court to review the propriety of denying Plaintiff's claim under the regulations, based on the ALJ's decision alone. This difficulty is exacerbated by the Appeals Council's brief statement, quoted above, that application of the regulation did not require the ALJ's decision to be disturbed. In short, while this Court is loath to prolong this case more than it already has, the record is simply inadequate to determine if the denial of Plaintiff's claims, under the regulations becoming effective on February 26, 1979, was supported by substantial evidence. Hence, a remand to the Secretary is appropriate for further development of reasons, and factual findings, if necessary, regarding the denial of Plaintiff's claim under the regulations.[3]See generally, Slaven v. Harris, supra, 508 F.Supp. at 287 (remand appropriate in virtually identical circumstances to the case herein).
III. CONCLUSION
Based on the above analysis of facts and legal principles, the Court finds that the objections of Defendant to the Report and Recommendation of the Magistrate are well taken, and the Court finds that said Report and Recommendation should be rejected in its entirety. It is so ordered.
WHEREFORE, based on the aforesaid, the Court overrules both Plaintiff's and Defendant's motions for summary judgment, and remands the matter to the Defendant, for further proceedings as set forth above.
The captioned cause is hereby ordered terminated upon the docket records of the United States District Court for the Southern District of Ohio, Western Division, at Dayton.
NOTES
[1] the individual have any impairment(s) which meets or equals those listed in Appendix 1? Where an individual's impairment(s) meets the duration requirement and is either listed in Appendix 1 or is determined to be medically the equivalent of a listed impairment, a finding of disability shall be made without consideration of the vocational factors.
20 C.F.R. § 404.1503(d) (1979).
[2] The section, in full, reads as follows:
12.04 Functional nonpsychotic disorders (psychophysiologic, neurotic, and personality disorders; addictive dependence on alcohol or drugs). With both A and B:
A. Manifested persistence of one or more of the following clinical signs:
1. Demonstrable and persistent structural changes mediated through psychophysiological channels (e.g., duodenal ulcer); or
2. Recurrent and persistent periods of anxiety, with tension, apprehension, and interference with concentration and memory; or
3. Persistent depressive affect with insomnia, loss of weight, and suicidal preoccupation; or
4. Persistent phobic or obsessive ruminations with appropriate, bizarre, or disruptive behavior; or
5. Persistent compulsive, ritualistic behavior; or
6. Persistent functional disturbance of vision, speech, hearing, or use of a limb with demonstrable structural or trophic changes; or
7. Persistent, deeply ingrained, maladaptive patterns of behavior manifested by either:
a. Seclusiveness or autistic thinking; or
b. Pathologically inappropriate suspiciousness or hostility;
B. Resulting persistence of marked restriction of daily activities and constriction of interests and deterioration in personal habits and seriously impaired ability to relate to other people.
20 C.F.R. Subpart P, App. 1, § 12.04 (1979).
The Magistrate specifically cited "Section 12.04(A)(2), (6)(B)." Report at 8.
[3] The relevant regulations cited by the Magistrate remained unchanged in the recent recodification of the SSA regulations. Cf. 20 C.F.R. § 404.1503(d) & Subpart P, App. 1, § 12.04 (1979) with 20 C.F.R. § 404.1520(d) & Subpart P, App. 1, § 12.04 (1981). Hence, no retroactivity problems are presented. Cf. Colyer v. Harris, 519 F. Supp. 692 (S.D.Ohio 1981). | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/2587342/ | 25 P.3d 936 (2001)
2001 OK CIV APP 48
Allen A. ATWOOD III; Peter M. Atwood; and Philip A. Atwood and Perry A. Atwood, minors by and through their parents and next friends, Peter M. Atwood and Adina A. Atwood, Plaintiffs/Appellants.
v.
Roger M. ATWOOD, Individually and as Trustee of the Allen A. Atwood and Ferne Atwood Trust Dated February 1, 1957, Defendant/Appellee.
No. 94,393.
Court of Civil Appeals of Oklahoma, Division No. 4.
April 3, 2001.
James C. Hodges, Eller and Detrich, Tulsa, OK, for Plaintiffs/Appellants.
Jeffrey D. Hassell, Julie C. Doss, Gable & Gotwals, Tulsa, OK, for Defendant/Appellee.
Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.
*939 RAPP, ACTING PRESIDING JUDGE:
¶ 1 The trial court plaintiffs, Allen A. Atwood III, Peter M. Atwood, Philip A. Atwood, and Perry A. Atwood ("Beneficiaries"), appeal an order granting summary judgment in favor of the trial court defendant, Roger M. Atwood ("Trustee"), individually and as Trustee of the Allen A. Atwood and Ferne Atwood Trust dated February 1, 1957 ("Trust"). This aspect of the appeal is reviewed as Part I of this Opinion.
¶ 2 Next, by supplemental appeal, the Beneficiaries appeal the trial court's decision which awarded attorney fees, expenses, and expert witness fees on behalf of Trustee. This aspect of the appeal is reviewed in Part II of this Opinion.
*940 PART I
BACKGROUND
¶ 3 In 1957, Allen and Ferne Atwood established the Trust to pay education and other benefits for the Beneficiaries. They funded the Trust primarily with stock in the AMP company, a publicly traded company. After Allen Atwood died, the Trustee became the active Trustee.
¶ 4 Roger Atwood and Allen Atwood, Jr. are the children of the Settlors. Allen, Jr. died in 1992. The Beneficiaries Allen Atwood III and Peter Atwood are the children of Allen, Jr. and, at time of trial, were approximately 39 and 42 years of age. The remaining Beneficiaries are the minor children of Peter Atwood. Prior to his death in 1992, Allen, Jr. dealt with the Trustee on behalf of his children.
¶ 5 In this action, the Beneficiaries have sued Trustee claiming that he mismanaged the Trust by failing to diversify its holdings and that he failed to account to them as Beneficiaries for his actions as Trustee. They also sought his removal as Trustee and damages for losses from the alleged mismanagement.[1]
¶ 6 The Trustee kept the AMP stock as approximately 70-80% of the Trust's assets until 1998, when much of it was sold. The gist of Beneficiaries' contention is that Trustee breached his duties by failing to diversify and had he done so the Trust's value would have been substantially higher. It was undisputed that the Trust began with a value of approximately $75,000.00, and that on May 4, 1999, the value was approximately $514,591.00. In addition to its present value, approximately $600,000.00 had been distributed to Beneficiaries, or for their benefit, over the life of the Trust. The major recipient was Peter Atwood. One minor was born after the case was filed and the record does not indicate that any distribution has been made for that child as yet.
¶ 7 Trustee filed a motion for summary judgment. He contended that the Trust instrument precluded liability because it granted Trustee power and discretion to retain any asset for as long as he deems advisable and to make investments without being limited to any rule of law or statute. Next, he argued that he had not violated either the Prudent Man Rule or the Prudent Investor Rule, but in either case the Trust granted authority and discretion beyond those Rules.
¶ 8 In support of his motion, Trustee submitted the findings of his expert showing that over various time frames, all ending May 4, 1999, the rate of return experienced by the Trust ranged from just under 14% for the longest term to just over 22% for the shortest term. This expert also calculated returns using different scenarios of diversification, including one urged by Beneficiaries. This calculation reflected that the Trust would have realized a value ranging from zero to approximately $354,000.00 compared to the actual value of approximately $514,000.00.[2]
¶ 9 Beneficiaries countered with their own experts. These experts opined that the failure to diversify increased the risk to the Trust and reduced the present value of the Trust by approximately $440,00.00 and cost the Trust $1,696,000.00 in future value. Further, Beneficiaries pointed to the return of the AMP stock as being only 8.75% during the five years prior to the suit being filed. They compared this return to the much greater return from other Trust assets and to other indices. They concluded that Trustee violated his duties as Trustee and his responsibilities under the Oklahoma Prudent Investor Act. Last, they maintain that Trustee failed to use the skills he possessed, and that he used for his own investments, for the benefit of the Trust.
*941 ¶ 10 In summary, under the Trustee's scenario the portfolio, as a whole, outperformed the scenario proposed by Beneficiaries and, at the same time distributed substantial sums. The Beneficiaries argued that their evidence shows that, had the Trustee diversified, the present and future values of the Trust would have been substantially higher and that the Trust has lost substantial future value. In response, Trustee asserted that regardless of the outcome of his investment choices and his decision to retain the AMP stock, the Trust document not only gave him unlimited discretion but also exonerated him from liability for claims such as urged by Beneficiaries. The trial court sustained Trustee's motion for summary judgment. Beneficiaries appeal.
STANDARD OF REVIEW
¶ 11 The appellate standard of review in summary judgment is de novo. Kirkpatrick v. Chrysler Corp., 1996 OK 136, ¶ 2, 920 P.2d 122, 124. This means without deference. Hulett v. First Nat. Bank & Trust Co. in Clinton, 1998 OK 21, 956 P.2d 879; see Salve Regina College v. Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991). The pleadings and evidentiary materials will be examined to determine what facts are material and whether there is a substantial controversy as to one material fact. Sperling v. Marler, 1998 OK 81, 963 P.2d 577; Malson v. Palmer Broadcasting Group, 1997 OK 42, 936 P.2d 940. All inferences and conclusions to be drawn from the materials must be viewed in a light most favorable to the non-moving party. Carmichael v. Beller, 1996 OK 48, 914 P.2d 1051. Even though the facts may not be controverted, if reasonable persons may draw different conclusions from these facts summary judgment must be denied. Bird v. Coleman, 1997 OK 44, 939 P.2d 1123. Summary judgment is proper only if the record reveals uncontroverted material facts failing to support any legitimate inference in favor of the nonmoving party. N.C. Corff Partnership, Ltd. v. OXY, USA, Inc., 1996 OK CIV APP 92, 929 P.2d 288. When genuine issues of material fact exist summary judgment should be denied and the question becomes one for determination by the trier of fact. Brown v. Oklahoma State Bank & Trust Co. of Vinita, 1993 OK 117, 860 P.2d 230; Flowers v. Stanley, 1957 OK 237, 316 P.2d 840. Because the trial court has the limited role of determining whether there are any such issues of fact, it may not determine fact issues on a motion for summary judgment nor may it weigh the evidence. Stuckey v. Young Exploration Co., 1978 OK 128, ¶ 15, 586 P.2d 726, 730.
¶ 12 One who defends against a claim and who does not bear the burden of proof is not required to negate the plaintiff's claims or theories in order to prevail on motion for summary judgment. When a defendant moves for summary judgment without relying upon an affirmative defense the defendant must show: 1) that no substantial factual controversy exists as to at least one fact essential to plaintiff's theory of the cause of action; and, 2) that the fact is in defendant's favor. Once a defendant has introduced evidentiary materials to establish these points, the plaintiff then has the burden of showing that evidence is available which justifies a trial of the issue. Akin v. Missouri Pacific R.R. Co., 1998 OK 102, ¶ 8, 977 P.2d 1040, 1044; Stephens v. Yamaha Motor Co., Ltd., Japan, 1981 OK 42, ¶ 11, 627 P.2d 439, 441; Runyon v. Reid, 1973 OK 25, ¶¶ 12-13, 510 P.2d 943, 946. On the other hand, when the defendant relies upon an affirmative defense then the defendant, as the party with the burden of proof, must meet the same standards as a plaintiff movant. Akin v. Missouri Pacific R.R. Co. ., 1998 OK 102, ¶ 9, 977 P.2d 1040, 1044.
ANALYSIS AND REVIEW
¶ 13 This Court views the Trustee's motion for summary judgment as a two-sided attack upon the Beneficiaries' claim: one involving breach of trust duty by a failure to diversify, and the second one being more complex and involving affirmative defenses of exoneration and authorization.
Summary Judgment Predicated Upon Beneficiaries' Claims
¶ 14 The first aspect of the Trustee's motion examines the elements of Beneficiaries' claim of breach of trust duty by failure *942 to diversify. This claim challenged the prudence and advisability of Trustee's actions, who admits that he retained a single asset in the Trust as its principle investment and only minimally diversified its portfolio. Trustee sought to demonstrate in regard to this lack of diversification under the Trust that no action exists because the performance of the Trust, including its distributions, equaled or excelled the performance which conservative diversification under either the Prudent Man Rule or the Prudent Investor Rule would have produced. Under this theory, whether the trust instrument provided for exoneration or authorization for acts by the Trustee is immaterial.
¶ 15 The Trustee, as a moving defendant, is not required to negate the Beneficiaries' claims or theories in order to prevail. Trustee, through his expert, made the requisite showing in his motion for summary judgment that: 1) no substantial factual controversy exists as to at least one fact essential to Plaintiffs' theory of the cause of action; and, 2) the fact is in Defendant's favor. However, the Beneficiaries' introduction of evidentiary materials, through their experts, contradicting Trustee's report in their attempt to establish that evidence is available, justifies a trial of the issue. Therefore, summary judgment does not lie as to the first issue-breach of trust on failure to diversify.
Summary Judgment Predicated Upon Trustee's Affirmative Defenses
¶ 16 The problem for the Beneficiaries is, however, that the Trust instrument contains a great deal of language relating to Trustee's authority and discretion, and it is this pivotal issue, in this Court's review, which determines the correctness of the trial court's decision. A trust instrument may enlarge or restrict the statutory powers of the Trustee. See 60 O.S. Supp.2000 § 175.61(B); Minn. St. Ann. § 501B.151, Sub. 1(b). When the trust instrument leaves acts to trustee's discretion, the courts will not intervene. In re Trusts Created by Hormel, 504 N.W.2d 505 (Minn.App.1993).[3] If a trustee is empowered to do or not to do an act, then the trustee's performance under that power does not give rise to a claim for breach of a statutory or common-law duty which the trust instrument has altered. Id.; see Bank v. Bank Lbr. Co., 1975 OK CIV APP 38, ¶¶ 15-16, 543 P.2d 588, 592.
¶ 17 Beneficiaries argue that even though the Trustee here possesses broad discretion, nevertheless, he does not have unbridled authority to deal with the trust property. Pipkin v. Pipkin, 1964 OK 72, 393 P.2d 534; First Nat'l Bank of Wichita Falls v. Stricklin, 1959 OK 208, 347 P.2d 652. Both cases were decided under the Prudent Man Rule.
¶ 18 This Court agrees that the general policy statements in those cases represent Oklahoma law then, and now under the Prudent Investor Rule. See 60 O.S. Supp.2000, § 175.65. However, those policy statements are not inconsistent with granting latitude and discretion to a trustee, as happened here.
¶ 19 The limits upon all trustees, regardless of the latitude and discretion vested in them by the trust instrument, are of the nature listed in Robinson v. Kirbie, 1990 OK CIV APP 45, 793 P.2d 315. Thus, the trustee may not engage in criminal acts, or refuse to perform some trust directive, or engage in egregious conduct, such as fraud or malicious, intentional disregard for the rights of the Beneficiaries. Id. at ¶¶ 7-8, 793 P.2d at 318-19. The Beneficiaries here have not alleged or raised any such issues.
¶ 20 Thus, the second aspect of the Trustee's summary motion attack presents the affirmative defenses of authorization and exoneration, both derived from the Trust instrument. Under this theory, the Trustee must demonstrate that no material fact is in issue and that the facts, and all inferences from them, are in his favor and that he is entitled to judgment as a matter of law. In other words, the roles are switched and the Beneficiaries need only show a factual controversy as to at least one fact essential to Trustee's affirmative defenses and that such fact is in their favor.
*943 ¶ 21 The Trust instrument was executed in Minnesota on February 1, 1957.[4] Trustee presented a portion of the Trust instrument in support of his motion for summary judgment. This portion does not contain any language of exoneration specifically relieving the Trustee of liability for breach of trust and, therefore, the Trustee has not demonstrated for purposes of summary judgment that he is exonerated from liability for breach of trust, if shown to exist, based solely upon language in the Trust instrument.
¶ 22 However, the question of the Trustee's authorization remains. The part of the Trust instrument provided by Trustee in his Rule 13 materials does state:
Article VI
The trustee shall have power and authority to do any act or thing reasonably necessary or advisable for the proper administration and distribution of each trust created by this instrument. In order to facilitate the proper administration and distribution of each such trust and except as may be in this Trust Agreement otherwise expressly directed or required, and in extension but not in limitation of any power, right, or discretion conferred upon the Trustee by any present or future statute, decision, or rule of law, and the Trustee is hereby granted power to sell and convey any of the properties or securities comprising said trust without license or approval of any court or person:
1. To retain cash or other assets, whether or not of the kind hereinafter authorized for investment, for so long as they may deem advisable, and to sell, exchange, mortgage, lease or otherwise dispose of the same for terms within or extending beyond the term of this trust, and to receive from any source additional properties acceptable to them.
2. To invest and reinvest in, or exchange assets for, any securities and properties they deem advisable, including without limiting the generality of the foregoing, common and preferred stocks, without being limited in the selection of investments by any statutes, rules of law, custom or usage; and to commingle for investment all or any part of the funds of this trust in any common trust fund or funds now or hereafter maintained by the Trustee.
(Emphasis added.)
¶ 23 Thus, the Trustee clearly possessed broad discretion to retain the AMP asset placed into the Trust by the Settlors. The Trust instrument provided for measurement of his judgment according to what he deemed advisable. Here, the Beneficiaries seek to impose liability upon Trustee based upon what someone else deems advisable. In his affidavit, Trustee expressly claims to have abided by these instructions. Beneficiaries' materials do not refute Trustee's averment thereby failing to meet their burden under summary judgment procedures.
¶ 24 However, the Beneficiaries also claim that whatever the Trustee may deem "advisable" he was nevertheless ultimately to be guided by the Prudent Investor Rule, since 1995, and the "Prudent Man" standard from 1992 to 1995.[5] Diversification is a criterion under either of these Rules. However, Beneficiaries' argument must fail for several reasons.
¶ 25 First, 60 O.S.1991, § 163 (which has not been specifically repealed) states that a trustee may retain in the trust any property originally received without liability for retention *944 of the property.[6] Beneficiaries claim that Trustee breached his trustee's duty by retention of the AMP stock. It is undisputed that the AMP stock in the Trust had been placed there originally by the Settlors and Trustee did not acquire additional AMP stock other than by dividends. Therefore, at least until the enactment of the Prudent Investor Rule in 1995, the statute both authorized retention and exonerated the Trustee for retention of assets originally contributed by the Settlors.
¶ 26 The result would be the same under the law of Minnesota, the domicile of the Settlors and the State where the Trust was originally formed. Minnesota enacted its version of the Uniform Prudent Investor Rule in 1997.[7] The prior Act, the Minnesota Trustee's Powers Act, which is still in force, provides in part:
501B.81. Enumerated powers of trustee Subdivision 1. Trust Assets. The trustee may retain trust assets until, in the judgment of the trustee, disposition of the assets should be made, without regard to any effect retention may have on the diversification of the assets of the trust. The property may be retained even though it includes an asset in which the trustee is personally interested.
Minn. St. Ann. § 501B.81.
¶ 27 The Minnesota version of the UPIA substantially follows the Uniform Act but adds:
Subdivision 8. Disposal of property. Unless the trust instrument or a court order specifically directs otherwise, a trustee need not dispose of any property, real, personal, or mixed, or any kind of investment, in the trust, however acquired, until the trustee determines in the exercise of a sound discretion that it is advisable to dispose of the property. Nothing in this subdivision excuses the trustee from the duty to exercise discretion at reasonable intervals and to determine at those intervals the advisability of retaining or disposing of property.
Minn. St. Ann. § 501B.151(8).
¶ 28 Thus, the Minnesota statutes provide a parallel to Oklahoma's 60 O.S.1991, § 163 and Oklahoma's UPIA. The Minnesota Court has resolved the apparent inconsistency between the permission to retain and duty to diversify. In re Trusts Created By Hormel, 504 N.W.2d 505 (Minn.App.1993). There the Court ruled that the diversification language of the UPIA applied to the initial making of investments by the trustee. The permission to retain property language refers to different assets, those which were originally placed in trust by the settlers. Id. at 511-12. The Hormel decision also stands for the proposition that when the trustee is vested by the settlor with wide discretion, the court will not intervene. Id. at 512.
¶ 29 Next, the Prudent Investor Rule, adopted in 1995, is a "default" rule and "may be expanded, restricted, eliminated, or otherwise altered by the provisions of a trust." 60 O.S. Supp.2000, § 175.61(B). The language of Article VI of the Trust conveys the unequivocal message that the Settlors intended that Trustee not be constrained by the Prudent Investor Rule. The intent of the Settlors, as expressed by the Trust instrument, represents a factor that may be considered when deciding whether and to what extent to diversify. Thus, the Prudent Investor Rule does not make an absolute requirement that the trustee diversify.[8] 60 O.S. Supp.2000, § 175.63.
¶ 30 Finally under summary judgment procedure, the Beneficiaries, needed to and failed to show that at least one fact remained for trial after the Trustee's showing of an affirmative defense. Here, they have attempted to meet this burden through hindsight and by singling out for consideration *945 the AMP stock performance for the five years prior to filing of this action. The Prudent Investor Rule, upon which Beneficiaries rely, permits neither approach. 60 O.S. Supp.2000, §§ 175.62(B), 175.68.
¶ 31 Therefore, under the applicable standard of review, this Court holds that Trustee demonstrated that he had an affirmative defense of authorization to retain property derived from the Trust instrument and that, statutory rules notwithstanding, he was permitted to retain the AMP stock. Beneficiaries have failed to demonstrate any substantial controversy as to a material fact relevant to Trustee's defense or that such fact is in their favor. Beneficiaries' materials seek to review Trustee's actions by hindsight or by singling out a specific investment and such is not permitted under the UPIA. For the years preceding the enactment of the UPIA, Beneficiaries have failed to demonstrate that any facts exist showing that either 60 Ohio St. 1991, § 163 or the similar rule in Minnesota does not relieve Trustee of liability for retention of the Settlors' contributed assets, in addition to the relief granted by the language of the Trust instrument permitting retention.
¶ 32 Therefore, the trial court's decree of summary judgment based upon the Trustee's affirmative defense of authorization is affirmed.
¶ 33 Having disposed of the summary judgment issue, this Court next turns to the question of attorney fees, which was presented as a subsequent supplemental appeal in this case but which still retained the same Supreme Court number.
PART II
BACKGROUND
¶ 34 Subsequent to the trial court's summary judgment, and while the appeal of that issue was pending, the Trustee applied to the trial court for reimbursement from the Trust for his attorney fees, expenses, and expert witness fees. Trustee also applied for a trustee's fee but the trial court did not decide that issue instead determined that the appeal should proceed.[9]
¶ 35 The Trustee submitted an application for fees and expenses and presented evidence in support of the rates charged and the reasonableness of the requested amounts. The Beneficiaries, in opposition, assert as their principal contention that the Trustee is not legally entitled to recover the fees and expenses. The Beneficiaries challenged the reasonableness of some portions of the Trustee's attorney's charges and the reasonableness of the expert witness fees.
¶ 36 The trial court adjusted a portion of the claim. The trial court awarded judgment of $7,516.70 to reimburse Trustee for amounts paid by him; $79,909.50 for additional attorney fees and expenses; $23,713.00 and $3,487.20 for expert witness fees for experts utilized in the summary judgment proceedings; and, $3,149.00 as expert witness fee for the expert called in the fee hearing. All sums were ordered to be paid from the Trust. Beneficiaries appeal.
STANDARD OF REVIEW
¶ 37 This appeal presents a question of law regarding whether Trustee is legally entitled to fees, expenses, and expert witness fees. The appeal also presents a question of the reasonableness of those charges given entitlement and the fact that, because of the outcome of this appeal, Trustee did not prevail on the contention that generated the major portion of the fees and expenses allowed by the trial court.
¶ 38 The appellate court has the plenary, independent, and nondeferential authority to reexamine a trial court's legal rulings. Neil Acquisition, L.L.C. v. Wingrod Investment Corp., 1996 OK 125, 932 P.2d 1100, n. 1. Matters involving legislative intent present questions of law which are examined independently and without deference to the trial court's ruling. Salve Regina College v. *946 Russell, 499 U.S. 225, 111 S. Ct. 1217, 113 L. Ed. 2d 190 (1991); Keizor v. Sand Springs Ry. Co., 1993 OK CIV APP 98, ¶ 5, 861 P.2d 326, 328.
¶ 39 When the appeal raises an issue of the reasonableness of any attorney fees awarded by the trial court, then the standard of review is whether there has been an abuse of discretion by the trial judge. Green Bay Packaging v. Preferred Packaging, 1996 OK 121, 932 P.2d 1091; State ex rel. Burk v. Oklahoma City, 1979 OK 115, 598 P.2d 659; In re Estate of Jack Lee Fields, 1998 OK CIV APP 129, 964 P.2d 955. The appellant must show that the trial court made a clearly erroneous conclusion and judgment, against reason and evidence, before such an award may be reversed. Green Bay Packaging v. Preferred Packaging, 1996 OK 121, 932 P.2d 1091; Broadwater v. Courtney, 1991 OK 39, 809 P.2d 1310; Abel v. Tisdale, 1980 OK 161, 619 P.2d 608; In re Estate of Jack Lee Fields, 1998 OK CIV APP 129, 964 P.2d 955.
ANALYSIS AND REVIEW
Entitlement
¶ 40 Here, Trustee seeks three categories of reimbursement for litigation-related expenditures: Attorney's fees, expenses incurred by attorneys, and expert witness' fees which are further subdivided into expert fees for services in the litigation and expert fees supporting the attorney fee request. The Oklahoma Supreme Court has recently reaffirmed that the American Rule governs the right of a litigant to recover fees. Barnes v. Oklahoma Farm Bureau Mutual Ins. Co., 2000 OK 55, 11 P.3d 162. In Barnes, the Court ruled as follows:
In Oklahoma, the right of a litigant to recover attorney fees is governed by the American Rule. TRW/Reda Pump v. Brewington, 1992 OK 31, 829 P.2d 15, 22. This Rule is firmly established in Oklahoma [Id.] and provides that courts are without authority to award attorney fees in the absence of a specific statute or a contractual provision allowing the recovery of such fees, with certain exceptions. Id. This Court has ruled that exceptions to the American Rule are narrowly defined. Kay v. Venezuelan Sun Oil Co., 1991 OK 16, 806 P.2d 648, 650.
Id. at ¶ 46, 11 P.3d at 178-79.
¶ 41 Trustee seeks litigation-related expenses, as opposed to Trust administration expenses or damages that may include attorney fees and the like. Thus, the American Rule governs Trustee's entitlement to these outlays so that entitlement must follow from an exception to the Rule. See In re Estate of Katschor, 1981 OK 125, 637 P.2d 855, holding that the attorney's services must benefit the estate, that is, increase the corpus of the estate.
¶ 42 Trustee has advanced two statutory justifications for the award of the attorney fees and the litigation expert's witness fees. They are 60 O.S. Supp.2000, § 175.24(A)(9) and (B)(3) and 60 O.S. Supp.2000, 175.57(D).[10] Trustee also points to language in the Trust document stating that the Trustee has the authority, "To pay all reasonable expenses and charges of the trust".[11]
*947 ¶ 43 The Court strictly construes any authority for fees and expenses. Borst v. Bright Mtg. Co., 1991 OK 121, 824 P.2d 1102; Federal Financial Co. v. Grady County, Oklahoma, 1999 OK CIV APP 90, 988 P.2d 908. Thus, neither the Trust language nor the provisions of 60 O.S. Supp.2000, § 175.24(A)(9) and (B)(3) provide for recovery of litigation-related expenses. In this regard, the decision in First Nat'l Bank of Wichita Falls v. Stricklin, 1959 OK 208, 347 P.2d 652, can be distinguished on the authority of Borst because in First National Bank the action was to preserve the trust against an attack seeking to cancel the trust there. Here, the action is against the Trustee for alleged breaches of the Trust and for removal so that the outlays are for the benefit of the Trustee as opposed to protection of the Trust.
¶ 44 However, 60 O.S. Supp.2000, 175.57(D), is a specific statute authorizing recovery of litigation-related expenditures, at the discretion of the trial court, in a "judicial proceeding involving a trust." Section 175.57(D) was enacted in 1999 as a part of legislation dealing with trustees and their actions. Laws 1999, ch. 419, eff. June 10, 1999. The context of Section 175.57 clearly shows that the Section serves to eliminate the foregoing distinction because that statutory section relates to the trustee and violations of trust. Moreover, to the extent that In re Estate of Katschor requires rejection of attorney fees in the present case, the Statute has changed that result.
¶ 45 The statutory phrase "as justice and equity may require" contained in Section 175.57(D) serves two functions, first as a criterion for entitlement and second, as a measure of the size of the award. Because Section 175.57(D) applies to judicial proceedings the terms "costs", "expenses," and "reasonable attorney fees" are to be considered in terms of such proceedings. Thus, for example, "costs" are the costs authorized by statute, 12 O.S. Supp.2000, § 942.
¶ 46 Therefore, this Court holds that Section 175.57(D) provides a statutory exception to the American Rule. The exception arises when "justice and equity may require" that fees, costs, and expenses be awarded.[12]
¶ 47 The highly subjective phrase "justice and equity" does not state specific guidelines or criteria for use by a trial court or for use by a reviewing court. The phrase connotes fairness and invites flexibility in order to arrive at what is fair on a case by case basis. Hence, general criteria drawn from other types of cases provide nonexclusive guides. These include (a) reasonableness of the parties' claims, contentions, or defenses; (b) unnecessarily prolonging litigation; (c) relative ability to bear the financial burden; (d) result obtained by the litigation and prevailing party concepts; and (e) whether a party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons in the bringing or conduct of the litigation.
¶ 48 The role of "justice and equity" in this phase of the inquiry before the trial court is distinct from their role in determining what amount of costs, fees, and expenses should be allowed. For example, the fact that the nature of the case was difficult and required a great deal of effort goes to the amount of the award rather than whether an award should be granted. Thus, the criteria enumerated in Burk v. City of Oklahoma City, 1979 OK 115, ¶ 8, 598 P.2d 659, 661, represent the bases for the computation of the award rather than justification for the award.
¶ 49 Trustee put forth six arguments in support of his assertion that "justice and equity require" that the fees of the Trustee be paid. The arguments were:[13]
1. Overall and over time the Trust performed well and provided substantial benefits to the adult Beneficiaries.
2. Trustee has served for years without compensation.
*948 3. Beneficiaries were informed several times early in the dispute that Trustee would seek expenses and fees for litigation.
4. Assessment of the fees would deter beneficiaries in general from unwarranted litigation.
5. Trustee was not accused of nor found guilty of any fraud, overreaching, or criminal conduct.
6. The result obtained, that is, that the ruling of the trial court was that the Trust performed well and no damages were sustained by Beneficiaries so their claim was summarily adjudicated.
¶ 50 Arguments 2, 3, 4, and 5 do not support Trustee's claim under the facts here. First, Trustee also sought compensation from the trial court and computed his claim retroactively. The questions of the propriety and reasonableness of any fee for the Trustee are not presently before this Court for review.[14]
¶ 51 Next, litigation maintained in bad faith, or unreasonably, is subject to sanctions under 12 O.S. Supp.2000, § 2011, but Trustee has not established here that Beneficiaries have proceeded in a manner which justifies an award as a sanction.[15] Likewise, Trustee has not shown a basis to invoke the equitable powers of the court to award attorney fees, for example, as in cases of abusive litigation practices. In re Estate of Katschor, 1981 OK 125, ¶¶ 15-16, 637 P.2d 855, 857; Winters v. City of Oklahoma City, 1987 OK 63, ¶ 11, 740 P.2d 724, 726.
¶ 52 Moreover, if the Beneficiaries had engaged in abusive practices, then there must be some additional showing that the Trust, as opposed to the Beneficiaries individually, should bear the financial burden. Here, there are other Beneficiaries who are minors and whose interests in the Trust will be materially affected. They were not separately represented here and they occupy a role similar to that of an involuntary plaintiff in the trial court.
¶ 53 Last, whether Trustee is guilty of fraud or criminal acts is immaterial. The question presented for review concerned his admitted failure to diversify Trust assets in the face of the Prudent Man and Prudent Investor Rules.
¶ 54 Arguments 1 and 6 are interrelated. In this appeal, this Court has not sustained the Trustee's position that summary judgment was appropriate on the basis of Trust performance and resulting lack of damages. Thus, to the extent that Trustee bases his justification for fees and expenses upon the outcome of the litigation due to Trust performance, Trustee's argument fails.
¶ 55 On the other hand, Trustee has adopted the role of a "prevailing party" in general as one justification for the award. In Oklahoma jurisprudence, the concept of "prevailing party" is result oriented. A party prevails who succeeds on the merits of the claim. Underwriters at Lloyd's of London v. North American Van Lines, 1992 OK 48, 829 P.2d 978. The prevailing party is the one who has judgment rendered at the conclusion of the action. Oklahoma Oil & Gas Exploration Drilling Program 1983-A v. W.M.A. Corporation, 1994 OK CIV APP 11, 877 P.2d 605. Here, Trustee has prevailed on summary judgment, albeit on a different theory than that of overall Trust performance. Clearly, Trustee has prevailed in this appeal, although not on every theory he advanced before the trial court. This Court holds that when a party prevails in a judicial proceeding contemplated by 60 O.S. Supp.2000, § 175.57, then that is sufficient to invoke the discretionary authority granted in Section 175.57(D), so that the trial court may then decide whether justice and equity warrant assessment of fees, expenses, and costs.
¶ 56 Beneficiaries argued that Section 175.57(D) cannot apply retroactively. *949 However, this Court views Section 175.57(D) as a burden-shifting statute in derogation of the American Rule. By analogy to other statutes involving authority to assess attorney fees, Section 175.57(D) relates to procedure and is retroactive. Qualls v. Farmers Ins. Co. Inc., 1981 OK 61, ¶ 2, 629 P.2d 1258, 1259; Phoenix Fed. Sav. & Loan v. Great Southwest Fire Ins. Co., 1979 OK CIV APP 49, ¶¶ 7-8, 603 P.2d 356, 358. Therefore, pursuant to Section 175.57(D), the Trustee here may recover "costs and expenses, including reasonable attorney fees" in an amount that the trial court, in its discretion, determines to be just and equitable.
¶ 57 This leaves unresolved the question of what is included within the scope of "expenses." Ordinarily, a party is not entitled to recover expert witness fees as costs in litigation. Sloan v. Owen, 1977 OK 239, ¶ 9, 579 P.2d 812, 814. Moreover, costs falling under 12 O.S.1991, § 930, which the court may deem "right and equitable" do not include expert witness fees. Sloan v. Owen, 1977 OK 239 at ¶ 13, 579 P.2d at 815.
¶ 58 The case of Porter v. Tayer, 1963 OK 176, 385 P.2d 808, involved a contention by a holder of a tax deed that he was entitled to have the taxpayer-landowner tender as "expenses" his personal expenses in obtaining the tax deed and in defending it. The statute there provided that when a landowner-taxpayer sought to set aside a tax deed that person must tender all "costs and expenses." 68 O.S.1961, § 455. The Court there held that the word "expenses" did not include personal expenses of the holder of the tax deed in obtaining or defending the instrument. Porter v. Tayer, 1963 OK 176 at ¶ 35, 385 P.2d at 814.
¶ 59 The Oklahoma Supreme Court has distinguished claims for expert witness fees in cases under the Surface Damages Act from cases involving condemnation. Andress v. Bowlby, 1989 OK 78, 773 P.2d 1265. In the latter, the statute specifically authorizes recovery of certain expert witness fees.[16] 66 O.S.1991, § 55(D). The Surface Damages Act directs that cases under that Act are conducted as cases under condemnation, but the Act did not specifically authorize recovery of expert witness fees when it authorized recovery of all court costs including reasonable attorney fees. 52 O.S.1991, § 318.5(F).
¶ 60 In divorce actions the court is permitted to award "reasonable expenses" as may be "just and proper." 43 O.S. Supp.2000, § 110(C). In this context "reasonable expenses" have been considered to include both expert witness fees and attorney fees as an exception to the American Rule. Hill v. Hill, 1983 OK 81, 672 P.2d 1149 (appraiser); O'Connor v. O'Connor, 1991 OK CIV APP 41, 813 P.2d 544 (attorney fees.)
¶ 61 The apparent conflict in result may be resolved on the basis that when the case involves a court in equity the term "expenses" has been given a more liberal interpretation. In this trust case the trial court sits as an equity court. Therefore, this Court interprets the word "expenses" in Section 175.57(D) to include expert witness fees.
Reasonableness of Award
¶ 62 The issue for review relates to the reasonableness of amounts of attorney fees and expert witness fees awarded by the trial court.[17] The issue may be stated as follows:
Is it just, equitable, and reasonable to award attorney fees and expert witness fees for optional activity, that is the motion for summary judgment, in light of the fact that Trustee, as a result of this Court's *950 Opinion, did not prevail upon the theory to which the vast majority of these fees and expenses were devoted?
¶ 63 It is clear that the bulk of the attorney fees was incurred in connection with Trustee's quest for summary judgment on the issue of performance, that is, that the Beneficiaries could not establish their claim because of the Trust's performance over time and that, as a result, there were no damages. A substantial portion of the expert witness fees also were incurred on this aspect of the case. Moreover, had Trustee not obtained summary judgment, then these same legal efforts expended toward summary judgment, along with the presentations of the expert witnesses, would have been utilized to defend against Beneficiaries' claim at a trial on the merits.
¶ 64 In order to reach a decision regarding what will be a reasonable sum to award, the trial court, after conducting a Burk hearing, must specifically state in the record the basis and calculation for its determination that the fee awarded is reasonable. Green Bay Packaging v. Preferred Packaging, 1996 OK 121, 932 P.2d 1091.[18] Furthermore, in a multifaceted case involving judgment in which only some of the matters authorize attorney fees the court must distinguish, on the record, between the compensable and non-compensable attorney time and effort. Green Bay Packaging v. Preferred Packaging, 1996 OK 121, 932 P.2d 1091; Sisney v. Smalley, 1984 OK 70, 690 P.2d 1048. The final calculation of the compensatory fee must bear some reasonable relationship to the amount in controversy. Arkoma Gas Company v. Otis Engineering Corp., 1993 OK 27, 849 P.2d 392; Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., 1987 OK 16, 737 P.2d 1186.[19] The same general principles apply when expert witness fees are requested.
¶ 65 The Beneficiaries' contentions are that: (1) There ought to be a division between compensable and non-compensable fees similar to Sisney v. Smalley, and (2) The amount granted is excessive.
¶ 66 The circumstances here do not present a case such as Sisney v. Smalley where the fees must be apportioned between claims, only one of which carries with it authorization for attorney fees. The underlying claims that Trustee failed to diversify the Trust assets and to account to Beneficiaries each implicate the application of Section 175.57(D). In addition, Trustee's counsel did not apportion time among claims so much as among aspects of the case. These aspects included initial activities following the onset of the dispute, general case administration, and summary judgment preparation. The latter two categories overlapped somewhat to include trial preparation.
¶ 67 On the other hand, the record does reflect that a substantial portion of the claimed attorney fees, as well as a substantial portion of the expert witness fees, were devoted to preparation and presentation of the summary judgment predicated upon Beneficiaries' claims, as opposed to Trustee's affirmative defenses an unsuccessful endeavor based upon this Court's Opinion.[20]
¶ 68 Thus, instead of a dichotomy based upon compensable and non-compensable claims this case presents a dichotomy based upon successful and unsuccessful, optional pre-trial activities leading up to this Court affirming a summary judgment on one premise out of three presented. As a result, Trustee's counsel, under the trial court's fee judgment would be reimbursed for activity, *951 partly optional, for which Trustee did not prevail, including the accounting.
¶ 69 In summary, this Court concludes from the record that attorney fees and expert witness fees were incurred in:
1. Preparation and presentation of a summary judgment based upon Trust performance but which was unsuccessful as a result of this appeal;
2. Preparation and presentation of a summary judgment based upon the affirmative defense of exoneration and which also was unsuccessful as a result of this appeal;
3. Preparation and presentation of a summary judgment based upon the affirmative defense of authorization and which was successful as a result of this appeal;
4. Preparation and presentation of the accounting sought by the Beneficiaries, thus making them a "prevailing party" on that issue; and
5. General case administration from onset to hearing on summary judgment. This aspect included trial preparation which duplicated especially Item 1 but which was necessary due to scheduling and the fact that Trust performance was to be a principle element of defense at trial.
¶ 70 Although the trial court did not compute the lodestar fee, the fee granted necessarily accepted the hours and hourly rates sponsored by Trustee's counsel, subject to the adjustments enumerated in the decision.[21] As a result, the attorney compensation and the expert witness fees included payment not only for activity which has proven to be unsuccessful but also for activity, the motion for summary judgment, which was optional in the first instance. This result must be weighed in light of the requirement of Section 175.57(D) that the award be just, equitable, and reasonable.
¶ 71 This Court recognizes that a lodestar fee may be unreasonably high or unreasonably low. Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., 1987 OK 16 at ¶¶ 10-12, 737 P.2d at 1189; Burk v. City of Oklahoma City, 1979 OK 115 at ¶ 7, 598 P.2d at 660-61. The time and labor spent by the attorney in performing services for which compensation is sought is an important factor to be considered in setting a reasonable fee. However, the time element must be considered in connection with other factors. Fees cannot fairly be awarded on the basis of time alone. Southwestern Bell Telephone Co. v. Parker Pest Control, Inc., 1987 OK 16 at ¶ 14, 737 P.2d at 1189; Burk v. City of Oklahoma City, 1979 OK 115 at ¶ 7, 598 P.2d at 660-61; RJB Gas Pipeline Co. v. Colorado Interstate Gas Co., 1989 OK CIV APP 100, ¶ 67, 813 P.2d 1, 13-14.
¶ 72 Here, the record fails to demonstrate the necessary findings and computations to support the sums awarded as fees and expenses. The absence of these findings has been made more acute as a result of this Court's decision here. It is well known that appellate courts of this State will not make first instance determinations of disputed fact issues as that is the function of the trial court. Bivins v. State ex rel. Oklahoma Memorial Hosp., 1996 OK 5, ¶ 19, 917 P.2d 456, 457.
¶ 73 In order to calculate a just, equitable, and fair fee, including the allowable expenses, the trial court must first compute, on the record, the lodestar fee. Here, that computation shall exclude all fees, including expert witness charges, which were devoted to the optional, unsuccessful summary judgment effort.
¶ 74 Then, pursuant to Burk, the trial court may consider additional factors, as applicable, to arrive at the final fee and allowed expenses that the trial court deems just, equitable, and reasonable. This process decides whether the lodestar fee will be increased or enhanced. Enhancement is tied, by definition, to the court's award of attorney's fees as an upward adjustment of the lodestar figure the district court calculated. Oklahoma Bar Assoc. v. Weeks, 1998 OK 83, ¶ 21, 969 P.2d 347, 353.
*952 ¶ 75 In addition, the trial court may give consideration at this stage to the optional activities involving the unsuccessful theories used in the quest for summary judgment. Where a lawsuit consists of related issues or claims, a plaintiff who has won substantial relief should not have his attorney's fee reduced simply because the court did not adopt each contention raised. But where the plaintiff achieved only limited success, the district court should award only that amount of fees that is reasonable in relation to the results obtained. Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983). Thus, factors such as whether the optional, unsuccessful activity was necessary, reasonable, or useful to the ultimate outcome of the case may be considered.
¶ 76 On remand the trial court shall determine the proper amount of the attorney's fee award in light of these standards. The final calculation, and the supporting findings, shall also be set forth in the judgment.
Miscellaneous Charges
¶ 77 The trial court allowed Trustee to recover costs incurred by his attorneys for Westlaw and Internet and miscellaneous office supplies. These items must be disallowed. Wilson v. Glancy, 1995 OK 141, 913 P.2d 286, Supplemental Opinion, 1995 OK 141 at ¶ 9, 913 P.2d at 292; Oklahoma Turnpike Auth. v. New Life Pentecostal Church of Jenks, 1994 OK 9, ¶¶ 3-4, 870 P.2d 762, 764; Oklahoma Turnpike Auth. v. New, 1993 OK 42, ¶ 10, 853 P.2d 765, 767. Under those cases, these items are part of the attorney's overhead rather than "expenses" under Section 175.57(D).
¶ 78 The trial court also granted substantial reproduction costs. The statute on costs permits taxation of reproduction costs only for copies necessarily used at trial. 12 O.S. Supp.2000, § 942(4). As with the other items, these reproduction costs were part of overhead as there was no trial in the action and must be disallowed for the same reason.
SUMMARY
¶ 79 Section 175.57(D) entitles Trustee to fees, expenses, and expert witness fees as a statutory exception to the American Rule. Nevertheless, any such award must be shown on the record to be just, equitable, and reasonable. This record demonstration must be accomplished by following the Burk guidelines and mandate so as to present, in the record, the lodestar fee calculation and the final fee calculation.
¶ 80 Here, the lodestar fee calculation must exclude optional, unsuccessful summary judgment activities, associated expenses, and expert witness fees and costs disallowed by this Opinion. Thereafter, in accord with this Opinion, and utilizing the remaining Burk guidelines in conjunction with the general authority specified in Section 175.57(D), the trial court must then calculate the final fee, associated expenses, and expert witness fees it deems to be just, equitable, and reasonable. The trial court's findings and calculations are to be shown in the judgment. Moreover, the trial court must determine, based upon "justice and equity," whether the Trust alone, the adult Beneficiaries alone, or some combination of Trust and adult Beneficiaries or Trust and all Beneficiaries should bear the burden of the sums awarded.
¶ 81 Therefore, the decision of the trial court granting attorney fees, expenses, and expert witness fees is affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.
CONCLUSION
¶ 82 The trial court's decision concerning summary judgment based upon the Trustee's affirmative defense of authorization is affirmed, as set out in Part I of this Opinion. The trial court's decision concerning the grant of attorney fees, expenses and witness fees, as set out in Part II of this Opinion, is affirmed in part, reversed in part, and remanded for further proceedings consistent with this Opinion.
¶ 83 AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
*953 ¶ 84 COLBERT, J. (sitting by designation), concurs, and TAYLOR, J., dissents.
TAYLOR, J., dissenting
¶ 1 I must dissent. I believe the provisions of 60 O.S. Supp.2000 175.57(D) were enacted to give courts discretion in trust proceedings such as this. Here, the record reflects careful scrutiny by the trial judge in awarding attorney's fees and costs. The record also shows the court considered the factual elements required by Burk v. City of Oklahoma City, 1979 OK 115, 598 P.2d 659. There was no abuse of discretion by the trial judge. To the contrary, the court below should be commended for the professionalism demonstrated in presiding over this complex and difficult case.
¶ 2 Although it is likely the former trustee's attorney made the strategic decisions concerning the defense of this litigation, the majority opinion will leave the former trustee exposed to the potential of personal liability for substantial attorney's fees incurred while successfully defending his actions as trustee. I believe that, under these circumstances, such exposure is not just or equitable.
¶ 3 I would affirm the trial court in all respects.
NOTES
[1] The summary judgment dealt only with the claim of mismanagement but the judgment decree complies with 12 O.S. Supp.2000, § 994(B). Moreover, the Trustee resigned during the proceedings and accountings were tendered. The sole question in Part I of this Opinion relates to the summary judgment deciding that Beneficiaries had no claim for mismanagement and damages. Trustee claimed an attorney fee and fees from the Trust, having previously never taken any fee for services as Trustee. These questions are discussed in Part II of this Opinion.
[2] One scenario advocated by Beneficiaries, if followed, would have resulted in the trust having a zero balance in the late 1970's.
[3] The Trust was originally drawn by one of the settlors, who was a trust lawyer and the father of the Trustee, a resident of the State of Minnesota, and in accord with Minnesota law.
[4] The Trust was moved to Oklahoma when Trustee moved into this State. However, the parties do not argue that Minnesota law controls. Moreover, neither party asserts that any language was inserted into the Trust by or on behalf of the Trustee here so as to invoke the provisions of 60 O.S. Supp.2000, § 175.57(F)(1)(b) and (2).
[5] Prior to 1995, 60 O.S.1991, § 161, directed the trustee to use a Prudent Man standard and by construction this standard included a duty to diversify. See cases collected at 24 ALR3d 730. In 1995, the Uniform Prudent Investor Act (UPIA) became law and this Act specifically requires diversification of investments. 60 O.S. Supp.2000, § 175.63. Beneficiaries have not maintained that the Trustee's duties under Section 175.64 of the UPIA at the inception of the Trust apply here and the UPIA applies only to decisions made after 1995 for then existing trusts. 60 O.S. Supp.2000, § 175.71.
[6] Section 163 states:
A trustee may retain in trust any property originally received into the trust and any substitution therefor without liability for such retention.
[7] Minn. St. Ann. §§ 501B.151, 501B.152.
[8] Section 175.63 states:
Diversification. A trustee shall diversify the investments of the trust unless the trustee reasonably determines that, because of special circumstances, the purposes of the trust are better served without diversifying.
[9] The trial court retains jurisdiction to determine attorney fee and costs issues. Okla. Sup.Ct. Rules 1.22, 1.26(d), 12 O.S. Supp.2000, ch. 15, app. Review of the decision proceeds under the accelerated procedures because the appeal on the merits also proceeds under that procedure. Okla. Sup.Ct. Rule 1.36(l), 12 O.S. Supp.2000, ch. 15, app. The trial court's order complies with 12 O.S. Supp.2000, § 994(A).
[10] 60 O.S. Supp.2000, § 175.24(A)(9) and (B)(3) provides authority for the trustee:
(A)(9). To employ attorneys, accountants, agents, and brokers reasonably necessary to the administration of the trust estate . . . .
. . . .
(B)(3). A trustee shall have a lien and may be reimbursed . . . all advances made for the benefit or protection of the trust or its property and all expenses . . . incurred in or about execution or protection of the trust . . . .
60 O.S. Supp.2000, 175.57(D) provides:
(D). In a judicial proceeding involving a trust, the court may in its discretion, as justice and equity may require, award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust which is the subject of the controversy. Here, Trustee did not seek, and the trial court did not award, any fees against the Beneficiaries individually. Moreover, no party offered any argument concerning the propriety of looking solely to the Trust, or partly to individuals and partly to the Trust. This Court observes that there are minors who are beneficiaries and whose interests may have been, at least at this stage, adverse to the adult beneficiaries regarding the placement of the burden of payment.
[11] Trustee cited Article IV, page 5, of the Trust document. That section does not make provision for payment of expenses and charges. Language to that effect is found in Article VI, subpart 6, page 6, of the Trust document presented in the summary judgment proceedings. No evidentiary material concerning language of the Trust document was presented at the attorney fee hearing.
[12] The trial court acts as a court of equity in trust matters. See Faulk v. Rosecrans, 1953 OK 358, 264 P.2d 300.
[13] Transcript Record, pp. 140-42.
[14] The Supplemental Petition in Error lists failure of the trial court to reject the fee request as an issue. However, the trial record before this Court discloses that the matter of Trustee compensation was continued by the trial court without objection. Moreover, the judgment, as authorized for immediate appeal under 12 O.S. Supp.2000, § 994(A), contains no decision regarding the Trustee's compensation or the trial court's continuance of that inquiry.
[15] Litigation under the Trust Code is subject to the Code of Civil Procedure. 60 O.S. Supp.2000, § 175.23(D).
[16] If the condemnation statute failed to grant such fees and costs, then it would risk failing to pass constitutional muster because the Constitution bans taking of property without just compensation. The statute then provides the property owner the opportunity to receive full compensation unadjusted by expert witness fees.
[17] Lawyers seeking an award of attorney fees are required to "present detailed time records to the court and to offer evidence of the reasonable value for the services performed, predicated on the standards within the local legal community." Green Bay Packaging v. Preferred Packaging, 1996 OK 121, 932 P.2d 1091; Oliver's Sports Center v. National Standard Ins. Co., 1980 OK 120, 615 P.2d 291. The criteria for calculation of fees are set out in Burk v. City of Oklahoma City, 1979 OK 115, ¶ 8, 598 P.2d 659, 661. Counsel for Trustee presented the attorney fee request in conformity with this rule.
[18] Here, the trial court's judgment specified only the deductions from the fees as requested. Otherwise the judgment does not specify the facts and computations used to support the award as required under Burk. Burk v. City of Oklahoma City, 1979 OK 115 at ¶ 22, 598 P.2d at 663. However, it is clear from the record that the trial court awarded the hours and the hourly rate, less the listed deductions, all as presented by counsel for Trustee.
[19] The Arkoma Gas case demonstrated that this criterion serves as a check against an unfair result from a simple mathematical calculation. Southwestern Bell used the criterion to review whether a case was "overworked."
[20] This aspect of the summary judgment was reviewed under Part I above. This Court has determined that summary judgment should not have been granted on this aspect of the case.
[21] The lodestar fee is the base fee computed as the reasonable number of hours times the reasonable hourly rate. Burk v. City of Oklahoma City, 1979 OK 115 at ¶ 7, 598 P.2d at 660-61. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600151/ | 173 N.W.2d 925 (1970)
Susan Lynn PABST, formerly Susan Lynn Hesse, Respondent,
v.
Howard O. HESSE, Appellant.
No. 41873.
Supreme Court of Minnesota.
January 16, 1970.
*926 James G. Paulos, St. Paul, for appellant.
Newcome, Wallace & Newcome, St. Paul, for respondent.
Heard before KNUTSON, C. J., and NELSON, MURPHY, PETERSON, and GRAFF, JJ.
OPINION
PETERSON, Justice.
The issue in this case is whether before his death the insured under a life insurance policy had effectively changed the beneficiary. The parties to the action are the two persons claiming to be that beneficiary: Defendant, Howard O. Hesse, the insured's father, who was originally named in the policy, and plaintiff, Susan Lynn Pabst, formerly Susan Lynn Hesse, the widow of the insured and the alleged substitute.
After a trial to the court, judgment was entered for the plaintiff. The defendant appeals from the order denying his motion for a new trial. We affirm.
On November 1, 1964, Robert H. Hesse, then 18 years old, single, and in the Navy, purchased a life insurance policy on his life from Metropolitan Life Insurance Company. The policy stated that the company would pay $9,700 to the beneficiary if the insured met an accidental death. It also provided that the insured could change beneficiaries but that any change "will not be binding upon the Company unless in writing and filed at the Home office."
The insured married Susan on August 13, 1966, and immediately thereafter asked his mother to deliver the policy and premium payment book to Susan so that she could assume the premium payments. The mother complied and Susan began making payments. The trial court found that the insured told his mother that he wanted to make his wife the beneficiary and that, to effectuate that desire, he requested Susan's aunt to assist Susan in completing the change-of-beneficiary forms and mailing them to him for his signature. In September and October, Susan and her aunt called Metropolitan's regional office, requested the necessary forms, and were told that the original soliciting agent would come to the home with them. The trial court found that due to a variety of circumstances, the forms were not delivered to plaintiff until January 25, 1967. They were promptly filled out and mailed to the insured, who was on the U. S. S. Yorktown in the Pacific. Susan received a copy of the change-of-beneficiary form, signed by Robert, on February 8, 1967. She called the agent and he agreed to come over for it and to transmit it to the home office.
On February 13, 1967, Robert was killed in a shipboard accident. This was a day or two before the agent came to Susan's home for the forms and shortly before Susan gave birth to Robert's child.
When Metropolitan's home office received the change-of-beneficiary documents, they refused to pay Susan, relying upon that portion of the policy quoted above. When Susan began this suit, the insurer paid the policy amount into the court and was dismissed from the action.
1-2 The provision of the insurance policy defining the proper mode of changing beneficiaries is the nucleus of defendant's argument. But this is a fragile core. As we said in Brown v. Agin, 260 Minn. 104, 109, 109 N.W.2d 147, 150 (dealing with an identical policy provision):
"* * * Such provisions are for the protection of the insurer, and where, as here, the insurance company has deposited the proceeds of the policy to be paid in accordance with the order of the court, it has waived any defense it might have to the claim of either party."
There is another somewhat different theory upon which the literal meaning of beneficiary-alteration clauses have been disregarded. In Boehne v. Guardian Life Ins. *927 Co., 224 Minn. 57, 66, 28 N.W.2d 54, 60, after noting the concept of waiver, we said:
"There is also authority for the viewpoint that the receipt of the notice and policy and endorsement of change of beneficiary thereon by the insurer involve purely ministerial acts, which the latter cannot refuse to perform after the death of the insured if, prior thereto, insured has done everything reasonably within his power to effect the designated change of beneficiary."
Whichever reason is given, the result is the same. We ignore the literal requirements of the policy and apply equitable principles to effectuate the insured's demonstrated intent. 2 Appleman, Insurance Law and Practice, § 985. The real issue is, of course, whether the insured adequately evinced his intent to name Susan as beneficiary.
3. Mailing the change-of-beneficiary form directly from the aircraft carrier to the insurer's office in the Twin Cities or to the agent from whom he had purchased the policy would probably have facilitated the insured's desired change, but to hold that there was no effective change simply because the insured did not do this as defendant urges would be unrealistic, both in view of our decisions holding certain acts sufficient to evidence this intent[1] and on the basis of commonsense. The evidence unequivocally indicates that the insured intended his wife to be the beneficiary. After his marriage the insured quickly and repeatedly asked others to assist in changing the beneficiary. He requested that his wife pay the premiums and was therefore certainly well aware that she was doing so and that she held the policy book. In all of her contacts with the insurer before Robert's death, Susan was acting not voluntarily but on Robert's direction. Robert actually made a written record of his intent, signed it, and sent it to his wife for forwarding to the soliciting agent. (He may have sent it to her rather than directly to the insurer because he was aware of Metropolitan's policy of having the soliciting agent service his policies.) We find it difficult to conceive of what more this young man could have done to evince his desire that his wife be the beneficiary of the insurance policy.
Affirmed.
NOTES
[1] Brown v. Agin, 260 Minn. 104, 109 N.W.2d 147; Boehne v. Guardian Life Ins. Co., 224 Minn. 57, 28 N.W.2d 54; Brajovich v. Metropolitan Life Ins. Co., 189 Minn. 123, 248 N.W. 711. | 01-03-2023 | 10-30-2013 |
https://www.courtlistener.com/api/rest/v3/opinions/1600056/ | 571 So.2d 333 (1990)
Ex parte State of Alabama.
(Re Michael R. PARDUE
v.
STATE).
89-313.
Supreme Court of Alabama.
June 22, 1990.
Don Siegelman, Atty. Gen., and Mary Elizabeth Culberson, Asst. Atty. Gen., for petitioner.
Everett A. Price, Jr., Brewton, for respondents.
STEAGALL, Justice.
Michael R. Pardue was convicted of second-degree escape, first-degree theft, second-degree theft, and first-degree burglary. He was sentenced as a habitual offender to 10 years' imprisonment on the escape conviction, to life imprisonment on the first-degree theft conviction, to 20 years on the second-degree theft conviction, and to life without parole on the burglary conviction. The Court of Criminal Appeals affirmed the conviction and sentence as to the escape conviction; vacated one of the theft convictions, ordering the court to set aside either the first- or the second-degree theft conviction and to resentence accordingly; and reversed and remanded as to the burglary conviction, directing the court to set aside the first-degree burglary conviction, to find Pardue guilty of third-degree burglary, and to sentence him accordingly. After its application for rehearing was overruled, the State filed a petition for a writ of certiorari, which we granted in order to consider whether a burglar is "armed with ... a deadly weapon" in accordance with Ala.Code 1975, § 13A-7-5(a), if he acquires a gun as loot during the burglary but does not use it or possess it for the purpose of its use or potential use as a weapon.
For a statement of the facts of this case, see Pardue v. State, 571 So.2d 320 (Ala. Crim.App.1989).
The State contends that the Court of Criminal Appeals' decision is erroneous because, the State argues, it negates the intent of the legislature in adopting Code *334 1975, § 13A-7-5(a). In support of its contention, the State relies on Henry v. State, 448 So.2d 432 (Ala.Crim.App.1983); Bates v. State, 468 So.2d 207 (Ala.Crim.App. 1985); and Lovell v. State, 477 So.2d 485 (Ala.Crim.App.1985). Those cases, which held that the taking of a firearm during a burglary would suffice to support a first-degree burglary conviction, were expressly overruled by the Court of Criminal Appeals in Buchannon v. State, 554 So.2d 477 (Ala. Crim.App.1989), cert. denied, 554 So.2d 494 (Ala.1989).
In Buchannon, the Court of Criminal Appeals made a distinction between the perpetrator who equips himself with a weapon prior to the crime and the perpetrator who steals a weapon during the crime, stating: "The mere showing that the defendant stole a weapon during the course of a burglary or robbery, without more, does not constitute being `armed.'" 554 So.2d at 492.
The offense of burglary in the first degree is defined in Code § 13A-7-5(a), as follows:
"A person commits the crime of burglary in the first degree if he knowingly and unlawfully enters or remains unlawfully in a dwelling with intent to commit a crime therein, and, if, in effecting entry or while in dwelling or in immediate flight therefrom, he or another participant in the crime:
"(1) Is armed with explosives or a deadly weapon; or
"(2) Causes physical injury to any person who is not a participant in the crime; or
"(3) Uses or threatens the immediate use of a dangerous instrument."
The statute clearly sets forth the conduct that is prohibited. A person commits the crime of burglary in the first degree when, in the course of committing a burglary, the person is armed with a deadly weapon. The statute does not require that the burglar be armed prior to entering a dwelling. Rather, the burglar must be "armed with explosives or a deadly weapon" at one of three points: 1) "in effecting entry"; or 2) "while in [the] dwelling"; or 3) "in immediate flight therefrom." Clearly, under the statute, the burglar could conceivably be "armed" at three different times during the course of the burglary.
We hold that the better view is that previously recognized by the Court of Criminal Appeals in Henry v. State, supra, Bates v. State, supra, and Lovell v. State, supra. This view has been adopted by Kentucky in Meadows v. Commonwealth, 551 S.W.2d 253 (Ky.Ct.App.1977), and by New Mexico in State v. Luna, 99 N.M. 76, 653 P.2d 1222 (App.), cert. quashed, 99 N.M. 148, 655 P.2d 160 (1982).
The applicable statute in Meadows was Ky.Rev.Stat. 511.020(1), which provides as follows:
"A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:
"(a) Is armed with explosives or a deadly weapon; or
"(b) Causes physical injury to any person who is not a participant in the crime; or
"(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime."
Applying that statute where a defendant broke into an unoccupied dwelling and stole a gun, the Kentucky court held:
"It is the opinion of this court that under the applicable law of this Commonwealth and under the circumstances where it is used statutorily, there is virtually no difference between being in possession of a deadly weapon and being armed with a deadly weapon."
551 S.W.2d at 255.
The court in Luna interpreted a statute similar to Code § 13A-7-5(a), and stated:
"Crimes involving violence or use of firearms are among those most abhorrent to our society. The rising number of offenses wherein firearms have been *335 used or victims assaulted with deadly weapons was obviously an important factor bringing about the passage of the aggravated burglary statute. Clearly, by enhancing the penalty for burglary while armed with a deadly weapon, the legislature intended to deter potential criminals from the use or possession of firearms[,] which escalate the possibility of violence."
653 P.2d at 1224. The New Mexico court held that the applicable statute is violated by a person who becomes armed with an unloaded weapon during the commission of a burglary.
The fact that Pardue armed himself with a deadly weapon while in the dwelling brings him within the purview of § 13A-7-5(a). Therefore, the decision in Buchannon, supra, is expressly overruled. We hold that Pardue was "armed" with a deadly weapon as that term is used in § 13A-7-5(a); we are persuaded that this holding is consistent with the intent of the legislature.
We, therefore, reverse that part of the Court of Criminal Appeals' judgment directing the trial court to set aside the first degree burglary conviction, to find Pardue guilty of third degree burglary, and to resentence accordingly; and we remand this cause for action consistent with this opinion.
REVERSED AND REMANDED WITH INSTRUCTIONS.
HORNSBY, C.J., and MADDOX, ALMON, SHORES and HOUSTON, JJ., concur.
KENNEDY, J., concurs in the result. | 01-03-2023 | 10-30-2013 |
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